PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED (DESIGNATED BY AN ASTERISK (*)
AND WHITE SPACE) AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
DATED AUGUST 4, 1998; FILE NO. 0-15609
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement ("Agreement") is made and entered
into as of June 11, 1998 by and between THE IMMUNE RESPONSE CORPORATION., a
Delaware corporation (hereinafter referred to as the Company) and AGOURON
PHARMACEUTICALS, INC., a California corporation ("Agouron"), which parties
hereby agree as follows:
1. AUTHORIZATION; COMMITMENT; CLOSING
1.01 AUTHORIZATION. The Company proposes to authorize, issue and sell to
Agouron on or before January 15, 2000, certain amounts of its common stock,
$.0025 par value ("Common Stock"), as described and determined below.
1.02 COMMITMENT. Subject to Paragraph 5.06 and the terms and conditions
hereof and on the basis of the representations and warranties hereinafter set
forth, the Company agrees to issue and sell to Agouron, and Agouron agree to
purchase from the Company as of the dates and for the consideration set forth
below, the number of shares of the Company's Common Stock as determined below.
The Common Stock which Agouron is acquiring pursuant to the terms of this
Agreement is hereinafter referred to as "Restricted Common Stock". Agouron is
hereinafter sometimes referred to as the "Purchaser." The purchases of the
Common Stock shall occur on the seven purchase dates set forth below. On each
purchase date, Agouron shall be entitled to acquire such number of shares of
Restricted Common Stock (rounded up to the nearest whole share) as may be
purchased for $2,000,000, at a purchase price equal to the stated premium set
forth opposite the applicable purchase date, over the then fair market value
("FMV") of the Common Stock on The NASDAQ Stock Market. FMV shall be defined as
the average closing price of the Common Stock on The NASDAQ Stock Market for the
five (5) trading days immediately preceding the referenced purchase date. In the
event the FMV is * on any purchase date, the premium applicable to such purchase
date shall be adjusted to *
PURCHASE DATE PURCHASE PRICE PREMIUM OVER FM
------------- -------------- ---------------
June 11, 1998 $2,000,000 50%
October 15, 1998 $2,000,000 *
January 15, 1999 $2,000,000 *
April 15, 1999 $2,000,000 *
July 15, 1999 $2,000,000 *
October 15, 1999 $2,000,000 *
January 15, 2000 $2,000,000 *
1.03 CLOSING. Separate closings of the purchase and sale of the
Restricted Common Stock ("Closings") shall occur on each of the purchase dates
set forth above and shall take place at such time and place as the Company and
Purchaser shall agree. At each Closing the Company shall deliver to Purchaser
the number of shares of Restricted Common Stock required by Paragraph 1.02,
above, upon delivery to the Company by Purchaser of a certified check or wire
transfer of funds in the amount of $2,000,000. The Restricted Common Stock to be
delivered to Agouron hereunder at each Closing will be evidenced by a single
certificate
registered in Agouron's name or in the name of such nominee as
Agouron may specify and, when issued in accordance with the terms of this
Agreement for the consideration expressed herein, will be duly authorized,
validly issued, fully paid, nonassessable and free and clear of any liens or
encumbrances caused or created by the Company (except that such Restricted
Common Stock of the Company will be subject to restrictions on transfer under
federal and applicable state securities laws).
2. REPRESENTATIONS
2.01 REPRESENTATIONS OF THE COMPANY. The Company represents and warrants
as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority which are
necessary to own and operate its business and properties and
to carry on its business as it is being conducted. The Company
is duly licensed and qualified and in good standing in the
State of California and in such other jurisdictions in which
the ownership or lease of property or the conduct of its
business makes such licensing or qualification necessary.
(b) There are no proceedings pending or, to the knowledge of
the Company, threatened against or affecting the Company in
any court or before any governmental authority or agency or
arbitration board or tribunal which involve the possibility of
materially and adversely affecting the properties, business,
prospects or condition (financial or otherwise) of the
Company.
(c) The issuance and sale of the Restricted Common Stock and
compliance by the Company with all of the provisions of this
Agreement are within the corporate powers of the Company and
have been duly authorized by all proper corporate action on
the part of the Company and will not (i) conflict with or
result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the Articles of
Incorporation of the Company or the Bylaws of the Company,
(ii) conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default
under or give any party the right to terminate or accelerate
performance under any other agreement or instrument to which
the Company is a party (iii) require consent under any other
contract to which the Company is a party, (iv) result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to the terms of
any other contract to which the Company is a party or (v)
conflict with any provision of any applicable judgment,
decree, order, statute, rule, or regulation of any court or
any public, governmental or regulatory agency or body having
jurisdiction over the Company.
(d) This Agreement is a valid and binding agreement of the
Company and is enforceable against the Company in accordance
with the terms hereof, except as such enforceability may be
affected by applicable bankruptcy laws and equitable remedies.
(e) The authorized capital stock of the Company consists of
5,000,000 shares of preferred stock (preferred stock) and
40,000,000 shares of common stock. As of the date hereof, 200
shares of its Series F Convertible Preferred Stock are
outstanding. This preferred stock is convertible into common
stock initially at a conversion price equivalent to $14.07 per
share of common stock. If the Company's common stock does not
trade at prices higher than $14.07 per share over a period of
time, the conversion price will be adjusted downward on April
24, 1999 (or sooner if the Company issues common stock at less
than $14.07 per share) and quarterly thereafter. As of June 9,
1998, 22,900,350 shares of voting common stock are
outstanding. As of the date hereof, 4,497,749 stock options
issued pursuant to the Company's stock option plans and two
(2) warrants to purchase a total of 2,051,281 shares of voting
stock are outstanding. Up to 6,180,000 shares of common stock
may be issued under the Company's stock option plans. Except
as set forth above, there are no other options, warrants,
conversion privileges, preemptive rights, or rights of first
refusal granted by the Company in favor of any other person
presently outstanding or in existence to purchase or acquire
any of the authorized but unissued Common Stock of the
Company, other than any of such items granted pursuant to this
Agreement. The Company has provided to Purchaser copies of its
currently in effect Articles of Incorporation and Bylaws, its
Form 10-K for the year ended December 31, 1997, its 1997
Annual Report, its Proxy statement dated April 27, 1998 and
its Form 10-Q for the quarter ended March 31, 1998. The
Company warrants that the information contained in such
documents as updated and supplemented prior to the date of the
Closing is true and correct and when taken as a whole does not
omit a fact necessary to make the information contained
therein in light of the circumstance under which the documents
were made (taking into account, without limitation, the type
of transaction contemplated by this Agreement and the
sophistication and nature of the Purchaser), not misleading.
The Company acknowledges that the Purchaser is relying on the
written documentation provided by the Company to Purchaser as
described above in making its decision to purchase the
Restricted Common Stock.
(f) Since March 31, 1998, except for the sale of 200 shares of
Series F Convertible Preferred Stock for $10 million, there
has not been any change in the assets, liabilities, financial
condition or operations of the Company other than changes in
the ordinary course of business, none of which individually or
in the aggregate have had a material adverse affect on such
assets, liabilities, financial condition or operations of the
Company.
2.02 REPRESENTATIONS OF THE PURCHASER. The Purchaser represents and
warrants as follows:
(a) It is the intent of the Purchaser that its purchase of the
Restricted Common Stock contemplated by this Agreement shall
constitute a transaction exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act") and
any applicable state securities laws.
(b) Purchaser will not offer or sell any Restricted Common
Stock except pursuant to an effective registration statement
under the Securities Act or in transactions which do not
require registration under the Securities Act.
(c) Purchaser is a corporation duly organized and validly
existing under the laws of the State of California is in good
standing under such laws and has all requisite corporate
powers and authority to enter into this Agreement.
(d) On or prior to the date of the initial Closing, Purchaser
will have taken all action necessary for the authorization,
execution, delivery and performance of this Agreement.
(e) Purchaser has (i) reviewed this Agreement, and the written
statements, and documents, delivered to Purchaser as described
in Section 2.01(e); and, (ii) received satisfactory response
from the Company as to matters about which Purchaser has
inquired relating to this Agreement, and other documents
described in Section 2.01(e) and relating to the Company's
business condition, prospects and plans as necessary to
evaluate the merits and risks of acquiring the Restricted
Common Stock. Purchaser has informed the Company that
Purchaser is relying on all such information and documents in
making its decision to purchase the Restricted Common Stock.
(f) Purchaser (i) has had the risks involved in the investment
represented by this Agreement explained; (ii) has knowledge
and experience in financial and business matters to evaluate
the merits and risks of the investment represented by this
Agreement; (iii) is able to bear the economic risk of the
investment represented by this Agreement (including a complete
loss of this investment); and (iv) has determined that this
investment is suitable for Purchaser in light of Purchaser's
financial circumstances and available investment
opportunities.
(g) Purchaser is acquiring the Restricted Common Stock for its
own account and with its general assets for the purpose of
investment and not with a view to the resale, transfer or
distribution thereof, and has no present intention of selling,
transferring, negotiating or otherwise disposing of any
Restricted Common Stock. Notwithstanding anything in this
Agreement to the contrary, it is agreed that the Purchaser
shall have the right to assign or transfer the Restricted
Common Stock to its Affiliates at any time without the consent
of the Company.
3. NON-DISCLOSURE. Except as agreed to by the parties neither the Company nor
the Purchaser shall release any information to any third party with respect to
any of the terms of this Agreement without the prior written consent of the
other, which consent shall not unreasonably be withheld. This prohibition
includes, but is not limited to, press releases, promotional materials and
discussions with the media. If the Company determines that it is required by law
to release information to any third party regarding the terms of this Agreement,
it shall notify the Purchaser of this fact prior to releasing the information.
The notice to the Purchaser shall include the text of the information proposed
for release. The Purchaser shall
have the right to confer with the Company regarding the necessity for the
disclosure and the text of the information proposed for release.
4. COMPLIANCE WITH SECURITIES ACT
4.01 CERTAIN DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
(a) COMMISSION. Shall mean the Securities and Exchange
Commission, or any other Federal agency at the time
administering the Securities Act or the Trust Indenture Act,
as the case may be.
(b) SECURITIES ACT. Shall mean the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
(c) EXCHANGE ACT. Shall mean the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect at the relevant time.
(d) RESTRICTED COMMON STOCK. Shall mean the Common Stock of
the Company issued and sold pursuant to this Agreement which
by the terms hereof is required to bear the legend specified
in Section 4.02 hereof.
4.02 RESTRICTION OF TRANSFERABILITY; LEGEND. Shares of Restricted Common
Stock shall not be resold or transferred unless registered under the Securities
Act or unless an exemption from registration is available for such sale or
transfer. The conditions specified below are intended to ensure compliance with
the provisions of the Securities Act in respect of any transfer of stock. Each
certificate for shares of Restricted Common Stock shall be stamped or otherwise
imprinted with a legend in substantially the following form:
The shares evidenced by this certificate have not
been registered under the Securities Act of 1933, as
amended, and may not be sold or transferred in the
absence of such registration or an exemption
therefrom under said Securities Act and the transfer
of such shares is subject to terms and conditions
specified in the Common Stock Purchase Agreement
dated as of June 11, 1998, between the Company and
Agouron Pharmaceuticals, Inc.
If shares of Restricted Common Stock evidenced by certificates bearing a legend
required by this Section 4.02 are sold in accordance with a registration
statement which has become effective under the Securities Act, or if the Company
shall receive an opinion of its counsel to the effect that any legend required
under this Section 4.02 is not, or is no longer, necessary or required with
respect to such shares (including, without limitation, because of the
availability of the exemption afforded by Rule 144 of the General Rules and
Regulations of the Commission), the Company shall, or shall instruct its
transfer agent and registrar to, remove such legend or issue new certificates
without such legend in lieu thereof.
4.03 INFORMATION REQUIREMENTS. The Company agrees to:
(a) Make and keep public information available, as such term
is understood and defined in Commission Rule 144 and Rule
144A, under the Securities Act;
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) Furnish to any holder of Restricted Common Stock a copy of
the most recent annual or quarterly report of the Company, and
such other publicly available reports and documents of the
Company, so that such holder may avail itself of any rule or
regulation of the Commission allowing it to sell any such
securities without registration.
4.04 PIGGY-BACK REGISTRATION RIGHTS. If the Company before January 15,
2001 contemplates a public offering of shares of its Common Stock to be
registered under the Securities Act, the Company shall so notify the Purchaser
in writing of its intention to do so, at least twenty (20) days prior to the
filing of a registration statement for such offering. If Purchaser gives written
notice to the Company, within ten (10) days of receipt of the notice from the
Company, of Purchaser's desire to have its Restricted Common Stock included in
such registration statement, Purchaser may, subject to the provisions of this
Section 4.04, have its Restricted Common Stock included in such registration
statement. The Company shall bear all expenses in connection with the
registration and sale of any such Restricted Common Stock, other than the fees
or disbursements of any special counsel which the Purchaser may retain in
connection with the registration of its Restricted Common Stock or any portion
of the underwriter's commission, discounts and expenses attributable to the
Restricted Common Stock being offered and sold by the Purchaser. Notwithstanding
the foregoing, if the managing underwriter of any such offering determines that
the number of shares proposed to be sold by the Company, by other shareholders
having piggy-back rights, and/or by the Purchaser is greater than the number of
shares which the underwriter believes feasible to sell at the time, at the price
and upon the terms approved by the Company, then the number of shares which the
underwriter believes may be sold shall be allocated for inclusion in the
registration statement in the following order of priority: (i) shares being
offered by the Company; and (ii) pro rata among the other shareholders and the
Purchaser, based on the number of shares of Common Stock each shareholder
requested to be registered. The Company shall have the right to designate the
managing underwriter in respect of a public offering pursuant to this Section
4.04.
4.05 ADDITIONAL COVENANTS CONCERNING SALE OF SHARES.
(a) The Company will notify the Purchaser of the effectiveness
of any registration statement in which Purchaser has exercised
registration rights granted pursuant to the terms of Section
4.04, together with a list of the jurisdictions where the
Company has qualified or is exempt from registration under
applicable state securities laws.
(b) The Company will prepare and file with the Commission such
amendments and supplements to any registration statement filed
pursuant to the terms of Section 4.04 (and any prospectus used
in connection with such registration statement) as may be
necessary to comply with the provisions of the Securities Act
with respect to the sale of Restricted Common Stock by the
Purchaser.
(c) The Company will furnish to the Purchaser a reasonable
number of copies of the prospectus used in connection with a
registration statement filed pursuant to the terms of Section
4.04, including a preliminary prospectus, which prospectus
conforms to the requirements of the Securities Act, and such
other documents as the Purchaser may reasonably request, in
order to facilitate the disposition of the Purchaser's
Restricted Common Stock.
(d) In connection with any registration statement referred to
in Section 4.04 of this Agreement, Purchaser will furnish to
the Company such information as the Company may reasonably
require from Purchaser for inclusion in the registration
statement (and the prospectus included therein).
(e) The Company's obligations under Section 4.04 shall be
conditioned upon Purchaser executing and delivering to the
Company its agreement, in a form satisfactory to counsel for
the Company, that it will comply with all applicable
provisions of the Securities Act, the Exchange Act, the
securities acts of applicable states and any rules and
regulations promulgated under such acts and will furnish to
the Company information about sales made in such public
offering.
4.06 INDEMNIFICATION
In the event any of the Restricted Common Stock of Purchaser is
included in a registration statement under Section 4.04 of this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the Purchaser and its Affiliates and their
respective officers, directors and employees, against any
losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (hereinafter sometimes
collectively referred to as a "Violation(s)"): (i) any untrue
statement or alleged untrue statement of a material fact
contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto; (ii) the omission or
alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein
not misleading; or (iii) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law;
and the Company will
reimburse each such indemnified party for
any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the indemnity agreement contained in this Section 4.06 shall
not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent
shall not be unreasonably withheld or delayed), nor shall the
Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon,
and in conformity with, written information furnished
expressly for use in connection with such registration, by any
such indemnified party.
(b) To the extent permitted by law, the Purchaser will
indemnify and hold harmless the Company and its Affiliates and
their respective officers, directors and employees against any
losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any Violations, in
each case to the extent (and only to the extent) that such
Violation occurs in reliance upon, and in conformity with,
written information furnished by the Purchaser and its
Affiliates and their respective officers, directors and
employees to the Company expressly for use in connection with
such registration; and the Purchaser will reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this
Section 4.06 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Purchaser,
which consent shall not be unreasonably withheld or delayed.
(c) Promptly after receipt by an indemnified party under this
Section 4.06 of notice of the commencement of any action
(including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 4.06, notify the
indemnifying party in writing of the commencement thereof and
the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, to
assume the defense thereof with counsel mutually satisfactory
to the parties.
5. MISCELLANEOUS
5.01 EXPENSES; FINDERS FEES. Neither party shall pay expenses and finder
fees for or to the other in connection with this transaction. Each party agrees
to indemnify and hold the other party harmless from any liability for any
commission or compensation in the nature of a finder's fee to any broker or
other person (and the costs and expenses of defending against such liability or
asserted liability) claiming to have been hired or engaged by the party.
5.02 REPLACEMENT OF CERTIFICATES FOR RESTRICTED COMMON STOCK. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of
any certificate evidencing any Restricted Common Stock, the Company will
execute, register and deliver, in lieu thereof, a new certificate for an equal
number of shares of Restricted Common Stock. In the case of loss, theft or
destruction of a certificate, at the election of the Company, the Purchaser may
be required to provide an indemnity reasonably satisfactory to the Company or to
post a surety bond in an amount equal to the value of the shares represented by
the new certificate.
5.03 NOTICE. Any notice required to be given under the terms of this
Agreement shall be in writing, and shall be given in person, transmitted by
telecopier, e-mail or similar electronic communication, delivered by a
recognized overnight delivery service such as Federal Express or sent by mail
(certified or registered or air mail for addresses outside of the country of
origin), return receipt requested, postage prepaid and addressed to the Company
at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or such other address as the
Company may designate to Purchaser in writing and to the Purchaser, at the
address appearing at the beginning of this Agreement or such other address as
Purchaser may designate to the Company in writing. Except as otherwise provided
herein, any notice so given shall be deemed delivered upon the earlier of (i)
actual receipt; (ii) receipt by sender of confirmation if telecopied or sent by
e-mail or similar electronic communication; (iii) two business days after
delivery to such overnight delivery service; or (iv) five business days after
deposit in the mail.
5.04 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties and their respective successors and assigns.
5.05 SURVIVAL OF REPRESENTATIONS, ETC. All covenants, representations and
warranties made by the parties herein shall survive the Closings and the
delivery of this Agreement and the shares of Restricted Common Stock purchased
hereunder.
5.06 TERMINATION. Purchaser's obligation to purchase Restricted Common
Stock under this Agreement shall terminate with respect to any purchase
obligations whose purchase dates under Paragraph 1.02 occur after Purchaser has
elected to terminate, in its entirety, all of Purchaser's rights and obligations
under the Letter of Intent ("LOI") dated June 11, 1998 and the Definitive
Agreement (as defined in the LOI) between the parties.
5.07 SEVERABILITY. Should any part of this Agreement for any reason be
declared invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated and it
is hereby declared the intention of the parties hereto that they would have
executed the remaining portion of this Agreement without including therein any
such part, parts, or portion which may, for any reason, be hereafter declared
invalid.
5.08 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of California without
regard to its conflict of law provisions.
5.09 CAPTIONS, FORM OF PRONOUNS. The descriptive headings of the various
sections or parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof. All pronouns
used in this Agreement shall be deemed to include masculine, feminine and neuter
forms.
5.10 AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes the entire
contract between the parties hereto related to the purchase and sale of
Restricted Common Stock and no party shall be liable or bound to the other in
any manner by any warranties, representations or covenants except as
specifically set forth herein.
5.11 THIRD PARTIES. Nothing in this Agreement is intended to confer upon
any party, other than the parties hereto, and their respective permitted
successors and assigns, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided herein.
5.12 AMENDMENT AND WAIVER. Any provision of this Agreement may be amended
and the observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only with the
written consent of the Company and the Purchaser.
5.13 AFFILIATES. References to Purchaser in this Agreement shall be
deemed to include direct or indirect subsidiaries of Purchaser. The term
"Affiliate" shall have the meaning defined in the LOI.
5.14 DISPUTE RESOLUTION. In the event of any controversy or claim arising
out of or relating to any provision of this Agreement, the parties shall try to
settle their differences amicably between themselves. Any unresolved disputes
arising between the parties relating to, arising out of or in any way connected
with this Agreement or any term or condition hereof, or the performance by
either party of its obligations hereunder, whether before or after termination
of this Agreement, shall be finally resolved by binding arbitration. Whenever a
party shall decide to institute arbitration proceedings, it shall give written
notice to that effect to the other party. The party giving such notice shall
refrain from instituting the arbitration proceedings for a period of sixty (60)
days following such notice The arbitration shall be held in San Diego,
California according to the rules of the American Arbitration Association
("AAA") applicable to commercial securities matters of this nature. The
arbitration shall be conducted by a panel of three arbitrators appointed in
accordance with AAA rules; provided, however, that each party shall within
thirty (30) days after the institution of the arbitration proceedings appoint
one arbitrator with the third arbitrator being chosen by the other two
arbitrators. If only one party appoints an arbitrator, then such arbitrator
shall be entitled to act as the sole arbitrator to resolve the controversy. Any
arbitration hereunder shall be conducted in the English language and the
arbitrator(s) shall apply the law set forth in Section 5.08. All arbitrator(s)
eligible to conduct the arbitration must agree to render their opinion(s) within
thirty (30) days of the final arbitration hearing. The arbitrator(s) shall have
the authority to grant injunctive relief and specific performance, and to
allocate between the parties the costs of arbitration in such equitable manner
as he determines; provided, however, that each party shall bear its own costs
and attorney's and witness' fees. Notwithstanding the terms of this Section
5.14, a party shall also have the right to obtain prior to the arbitrator(s)
rendering the arbitration decision, provisional remedies including injunctive
relief or specific performance from a court having jurisdiction thereof. The
arbitrator(s) will, upon the request of either party, issue a written opinion of
the findings of fact and conclusions of law and shall deliver a copy to each of
the parties. Decisions of the arbitrator(s) shall be final and binding on all of
the parties. Judgment on the award so rendered may be entered in any court
having jurisdiction thereof.
The execution hereof by Purchaser shall constitute a contract between us
for the uses and purposes hereinabove set forth, and this Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one agreement.
THE IMMUNE RESPONSE CORPORATION
By /S/ XXXXXX X. XXXXX
By /S/ XXXXXXX X. XXXXXXX
ACCEPTED AND AGREED TO AS OF THE DAY AND YEAR AFORESAID.
PURCHASER:
AGOURON PHARMACEUTICALS, INC
By /S/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
President and Chief Executive Officer
By /S/ XXXX XXXXXXXX
Xxxx Xxxxxxxx
Secretary
