EXHIBIT 1
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is dated as of January
4, 2002, by and among Alteon Inc., a corporation organized under the laws of the
State of Delaware (the "Company,") and each of the Purchasers whose names are
set forth on Exhibit A hereto (individually, a "Purchaser" and collectively, the
"Purchasers").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Purchasers
and the Purchasers shall purchase an aggregate of 4,450,000 shares of the
Company's common stock, $0.01 par value per share (the "Common Stock"); and
WHEREAS, such purchase and sale will be made pursuant to a registration
statement (No. 333-56512), including a prospectus, relating to $50,000,000 of
the Common Stock which the Company has filed with the Securities and Exchange
Commission (the "Commission").
The parties hereto agree as follows:
1. Purchase, Sale and Delivery of the Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to
each of the Purchasers and each of the Purchasers agrees to purchase from the
Company the number of shares of Common Stock set forth opposite such Purchaser's
name on Exhibit A hereto (the aggregate of such shares being referred to herein
as the "Shares"). The purchase price for each Share shall be $4.25 per share.
The Shares will be delivered by the Company to the Purchasers against payment of
the purchase price therefor by same day funds payable to the order of the
Company at the offices of Smith, Stratton, Wise, Xxxxx & Xxxxxxx, 000 Xxxxxxx
Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 or such other location as may be mutually
acceptable, at 10:00 a.m. Eastern Standard Time on or about January 11, 2002, or
at such other time and date as the Purchasers and the Company determine, such
time and date of delivery being herein referred to as the "Closing Date."
2. Representations and Warranties of the Company.
(a) The Company represents and warrants, and agrees with, each
Purchaser as follows:
(i) The above-referenced registration statement has
been declared effective by the Commission and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceeding for that purpose has been instituted or overtly threatened
by the Commission. Such registration statement, as amended or
supplemented at the time of this Agreement and including all material
incorporated by reference therein as of the date of this Agreement, is
hereinafter referred to as the "Registration Statement", and the
prospectus included in the Registration Statement, as supplemented as
contemplated by Section 3(a) hereof to reflect the terms of the
offering of the Shares, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") or Rule 430A ("Rule
430A") under the
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Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein as of the date of such filing, is hereinafter
referred to as the "Prospectus". On the effective date of the Registration
Statement, the Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations promulgated thereunder
(the "Rules and Regulations"), except to the extent of the information permitted
to be omitted pursuant to Rule 430A, and did not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and, on the date of
this Agreement, the Registration Statement conforms and, on the date of the
filing of the Prospectus, the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes or will include any
untrue statement of a material fact or omits or will omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information furnished to
the Company by the Purchasers, if any, specifically for use therein.
(ii) The financial statements of the Company,
together with the notes thereto, set forth in the Registration
Statement and Prospectus comply in all material respects with the
requirements of the Act and fairly present the financial condition of
the Company as of the dates indicated and the results of operations and
changes in cash flows for the periods therein specified in conformity
with accounting principles generally accepted in the United States
consistently applied throughout the periods involved (except as
otherwise stated therein); and the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein. No other financial statements or schedules are required
to be included in the Registration Statement or Prospectus except such
financial statements or schedules that are disclosed therein. Xxxxxx
Xxxxxxxx LLP, which has expressed its opinion with respect to the
audited financial statements of the Company filed as a part of the
Registration Statement and included in the Registration Statement and
Prospectus, are independent public accountants as required by the Act
and the Rules and Regulations.
(iii) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification and in which the failure to so qualify would have or
would be reasonably likely to have a material adverse effect on the
condition (financial or other), business, properties, prospects or
results of operations of the Company ("Material Adverse Effect").
(iv) The Shares and all of the outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Shares have
been delivered and paid for in accordance with this Agreement on the
Closing Date, such Shares will be validly issued, fully paid and
nonassessable and the delivery of the Shares to the Purchaser shall
vest in it good and
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marketable title thereto, free and clear of any and all liens, options,
encumbrances, charges, third-party rights or claims of any nature
whatsoever and will conform to the description thereof contained in the
Prospectus. Except as set forth in the Registration Statement or as
contemplated or required by any document contained or incorporated by
reference therein, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's
charter, by-laws or any agreement or other instrument to which the
Company is a party or by which the Company is bound.
(v) Except as set forth in the Prospectus, there are
no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company for a
brokerage commission, finder's fee or other like payment in connection
with the transactions contemplated by this Agreement. There are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against any Purchaser for
a brokerage commission, finder's fee or other like payment in
connection with the transaction contemplated by this Agreement.
(vi) The outstanding shares of Common Stock are
listed on The American Stock Exchange ("AMEX").
(vii) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Shares by the
Company, except such as may be required under the Act and under state
securities laws.
(viii) Except as disclosed in the Prospectus, the
Company has good and marketable title to all real properties and all
other properties and assets owned by it, in each case free from liens,
encumbrances and defects that would materially affect the value thereof
or materially interfere with the use made or to be made thereof by it;
and except as disclosed in the Prospectus, the Company holds any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by it.
(ix) The Company is not in violation of its articles
of incorporation, or by-laws, or other organizational documents, or of
any law, ordinance, administrative or governmental rule or regulation
applicable to the Company or of any decree of any court or governmental
agency or body having jurisdiction over the Company, which violation
would, if continued, have a Material Adverse Effect.
(x) The Company is not in breach, default or
violation in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company is a party or by which any of the
Company's properties may be bound (a "Company Contract") which breach,
default or violation would, if continued, have a Material Adverse
Effect. To the Company's knowledge, all
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of the parties to Company Contracts have complied in all material
respects with the provisions thereof, and no party is in material
default thereunder.
(xi) To the Company's knowledge, no party to a
Company Contract (a "Third Party") is a party to any other agreement,
lease or other instrument (a "Third Party Contract") under which the
failure by the Third Party to perform under such Third Party Contract
would adversely affect the Company's rights under the express terms of
any of the Company Contracts.
(xii) The Company possesses adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by it (except for
any such certificate, authority or permit with respect to which the
failure to obtain would not individually or in the aggregate have a
Material Adverse Effect) and has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company, would
individually or in the aggregate have a Material Adverse Effect.
(xiii) No labor dispute with the employees of the
Company exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xiv) Except as disclosed in the Prospectus, the
Company is not in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), does not own or, to
its knowledge, operate any real property contaminated with any
substance that is subject to any environmental laws, is not liable for
any off-site disposal or contamination pursuant to any environmental
laws, and is not subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead
to such a claim.
(xv) Except as disclosed in the Prospectus, there are
no pending actions, suits or proceedings against or affecting the
Company or any of its properties that, if determined adversely to the
Company, would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Shares; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xvi) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company.
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(xvii) Except as set forth in the Registration
Statement or as contemplated or required by any document contained or
incorporated by reference therein, subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, the Company has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, made any direct or indirect redemption, purchase or other
acquisition of its capital stock declared, set aside or paid any
dividends or made any distribution of any kind with respect to its
capital stock; and there has not been any change in the capital stock
(other than a change in the number of outstanding shares of Common
Stock due to the issuance of shares upon the exercise of outstanding
options or warrants or the conversion of outstanding convertible
securities), or any material change in the short-term or long-term
debt, or any issuance by the Company of options (other than options
granted pursuant to the Company's Amended and Restated 1987 Stock
Option Plan and the Company's Amended 1995 Stock Option Plan
(collectively, the "Stock Option Plans")), warrants, convertible
securities or other rights to purchase the capital stock of the
Company, or any material adverse change, or any development involving a
prospective material adverse change, in the general affairs, condition
(financial or otherwise), business, key personnel, property, net worth
or results of operations of the Company.
(xviii) There are no contracts or documents of the
Company that are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations that have not been
so filed.
(xix) This Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid, legal
and binding obligation of the Company, enforceable in accordance with
its terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, agreement or instrument to which the
Company is a party or by which it is bound or to which any of its
property is subject, the Company's charter or by-laws, or any order,
rule, regulation or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Company or for the
consummation by the Company of the transactions contemplated hereby,
including the issuance or sale of the Shares by the Company, except
such as may be required under the Act or state securities or blue sky
laws; and the Company has full power and authority to enter into this
Agreement and to authorize, issue and sell the Shares as contemplated
by this Agreement.
(xx) The Company owns or possesses or has licenses to
use all patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and other similar
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rights (such patents referred to herein as the "Patents" and all of
such intellectual property referred to collectively as the
"Intellectual Property") necessary for the conduct of the business of
the Company as currently carried on and as described in the
Registration Statement and Prospectus; except as stated in the
Registration Statement and Prospectus, to the Company's knowledge, no
name which the Company uses and no other aspect of the business of the
Company as conducted on the date hereof involves or gives rise to any
infringement of, or license or similar fees for, any patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets or other similar rights of others material to
the business of the Company and the Company has not received any notice
alleging any such infringement or fee. The Company or the licensor has
duly and properly filed or caused to be filed with the U.S. Patent and
Trademark Office (the "PTO") and applicable foreign and international
patent authorities all patent applications described in the
Registration Statement and the Prospectus (the "Patent Applications");
in connection with the filing of the Patent Applications, the Company
or the licensor has conducted reasonable investigations of the
published literature and patent references relating to the inventions
claimed in such applications; to the best of the Company's knowledge,
it has complied with the PTO's duty of candor and disclosure for the
Patent Applications and has made no misrepresentation in the Patent
Applications; the Company is not aware of any facts material to a
determination of patentability regarding the Patent Applications not
called to the attention of the PTO which would preclude the grant of a
patent for the Patent Applications; and the Company has no knowledge of
any facts which would preclude it from having an enforceable license or
clear title to the Patent Applications.
(xxi) The Company has filed all federal, state, local
and foreign income and franchise tax returns required to be filed and
is not in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, other
than any which the Company is contesting in good faith or which could
result in a material adverse effect on the financial condition of the
Company.
(xxii) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Shares other than the Prospectus or other
materials permitted by the Act to be distributed by the Company.
(xxiii) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
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(xxiv) Except as disclosed in the Registration
Statement and the documents referred to and incorporated therein by
reference, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with respect
to any securities of the Company or to require the Company to include
such securities with the Common Stock registered pursuant to the
Registration Statement.
(xxv) The Company is insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
they are engaged; the Company has not been refused any insurance
coverage sought or applied for; and, except for the potential effect of
conditions in the insurance industry and markets generally, the Company
has no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a material adverse effect on
the Company, except as described in the Prospectus.
(b) Any certificate signed by any officer of the Company and delivered
to the Purchasers shall be deemed a representation and warranty by the Company
to the Purchasers as to the matters covered thereby.
3. Covenants. The Company covenants and agrees with each Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to
by the Purchaser, subparagraph (5) thereto) not later than the second business
day following the execution and delivery of this Agreement by all parties
hereto.
(b) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Common Stock.
(c) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act in connection with sales by the
Purchaser, any event occurs as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will notify each Purchaser of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance.
(d) The Company will furnish to each Purchaser copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each
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case as soon as available and in such quantities as such Purchaser reasonably
requests. The Company will pay the expenses of printing and distributing all
such documents.
(e) The Company will use commercially reasonable efforts to ensure its
continued inclusion in, and the continued eligibility of the Common Stock for
trading on, AMEX, or, in the alternative, the Company will use commercially
reasonable efforts to have the Common Stock included in, and ensure that it is
eligible for trading on, the Nasdaq National Market, under all applicable
inclusion requirements prior to and after the Closing Date.
4. Conditions of Purchasers' Obligations. The obligations of the Purchasers
hereunder are subject to the accuracy, as of the date hereof and at the Closing
Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Company contained herein, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 3(a) of this Agreement. No
stop order suspending the effectiveness of the Registration Statement or of any
part thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or the Purchasers,
shall be contemplated by the Commission.
(b) No Purchaser shall have advised the Company that the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto,
contains an untrue statement of fact which, in such Purchaser's opinion, is
material, or omits to state a fact which, in such Purchaser's opinion, is
material and is required to be stated therein or necessary to make the
statements therein not misleading.
(c) Except as set forth in the Registration Statement or as
contemplated or required by any document contained or incorporated by reference
therein, subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus:
(i) the Company shall not have incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock; and there
shall not have been any change in the capital stock (other than a
change in the number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options or warrants
or the conversion of outstanding convertible securities), or any
material change in the short-term or long-term debt of the Company, or
any issuance of options (other than options granted pursuant to the
Stock Option Plans), warrants, convertible securities or other rights
to purchase the capital stock of the Company or any material adverse
change or any development involving a prospective material adverse
change (whether or not arising in the ordinary course of business), in
the general affairs, condition (financial or otherwise), business, key
personnel, property, net worth or results of operations of the Company
that, in a Purchaser's judgment, makes it impractical or inadvisable to
purchase the Shares on the terms and in the manner contemplated in the
Prospectus;
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(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any major
disruption of settlements of securities or clearance services in the
United States; and
(iv) there shall not have occurred any attack on,
outbreak or escalation of hostilities or act of terrorism involving the
United States, any declaration of war by Congress or any other national
or international calamity or emergency if, in the judgment of a
Purchaser, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the purchase and sale of and payment for
the Shares.
(d) Each Purchaser shall have received an opinion substantially in the
form attached as Exhibit B hereto, dated the Closing Date, of Smith, Stratton,
Wise, Xxxxx & Xxxxxxx, counsel for the Company.
(e) On the Closing Date, there shall have been furnished to each
Purchaser a certificate, dated such Closing Date and addressed to such
Purchaser, signed by the chief executive officer and by the principal accounting
officer of the Company, to the effect that:
(i) The representations and warranties of the Company
in this Agreement are true and correct, in all material respects, as if
made at and as of such Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Shares for offering or sale has been issued,
and no proceeding for that purpose has been instituted or, to the best
of their knowledge, is contemplated by the Commission or any state or
regulatory body; and
(iii) The signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto, and (A) such documents
contain all statements and information required to be included therein,
the Registration Statement, or any amendment thereof, does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
does not include any untrue statement of material fact or omit to state
a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, (B) since
the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented prospectus
which has not been so set forth, (C)
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subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as set forth in
the Registration Statement or as contemplated or required by any
document contained or incorporated by reference therein, the Company
has not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, not in the
ordinary course of business, or declared or paid any dividends or made
any distribution of any kind with respect to its capital stock, and
except as disclosed in the Prospectus, there has not been any change in
the capital stock (other than a change in the number of outstanding
shares of Common Stock due to the issuance of shares upon the exercise
of outstanding options or warrants or the conversion of outstanding
convertible securities), or any material change in the short-term or
long-term debt, or any issuance of options (other than options granted
pursuant to the Stock Option Plans), warrants, convertible securities
or other rights to purchase the capital stock, of the Company, or any
of its subsidiaries, or any material adverse change or any development
involving a prospective material adverse change (whether or not arising
in the ordinary course of business) in the general affairs, condition
(financial or otherwise), business, key personnel, property, net worth
or results of operations of the Company and its subsidiaries, taken as
a whole, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Company,
threatened or contemplated, any action, suit or proceeding to which the
Company or any of its subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which might
result in any material adverse change in the condition (financial or
otherwise), business or results of operations of the Company and its
subsidiaries, taken as a whole.
(f) The Company shall have furnished to the Purchasers such additional
documents, certificates and evidence as they may have reasonably requested.
(g) All necessary filings shall have been made as required and all
filing fees shall have been paid to effect the listing of the Shares on AMEX.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
such Purchaser may become subject, under the Act or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company) insofar as such losses, claims, damages, liabilities,
charges, actions, proceedings, demands, judgments, settlements, costs and
expenses of any nature whatsoever (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or arise out of or are based upon
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
arise out of or result from any breach of a representation, warranty or covenant
of the Company or any violation in connection with the transactions contemplated
hereby by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company or of any Blue Sky or other
state securities laws or any rule or regulation promulgated thereunder
applicable to the Company, and will reimburse such Purchaser for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending against such loss, claim,
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damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by the Purchasers specifically for use in the preparation thereof.
(b) Each Purchaser, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Purchaser), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Purchaser specifically for use in
the preparation thereof, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve the indemnifying party from any liability that it may have to any
indemnified party. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party's election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
if, in the judgment of a majority-in-interest of the Purchasers seeking
indemnification, it is advisable for the Purchasers to be represented by
separate counsel, the Purchasers shall have the right to employ a single counsel
in which event the reasonable fees and expenses of such separate counsel shall
be borne by the indemnifying party or parties and reimbursed to the Purchasers
as incurred (in accordance with the provisions of the second paragraph in
subsection (a) above). An indemnifying party shall not be obligated under any
settlement agreement relating to any action under this Section 5 to which it has
not agreed in writing.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying
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party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the Purchaser
on the other from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Purchaser on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Purchaser on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the excess of the proceeds received by
a Purchaser upon resale of the Shares over the purchase price paid hereunder for
the Shares. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchaser and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Purchasers agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
to be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
first sentence of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this subsection (d).
(e) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls a
Purchaser within the meaning of the Act; and the obligations of the Purchasers
under this Section 5 shall be in addition to any liability that the Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his consent, is named in
the Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
6. Information Furnished by Purchasers. The statements set forth in the second
paragraph of text under the caption "Plan of Distribution" concerning the terms
of the offering by the Purchasers in the prospectus supplement prepared in
connection with the transactions contemplated hereby constitute, to the extent
such statements relate to the Purchasers, the written information furnished by
or on behalf of the Purchasers referred to in Section 5 hereof.
7. Notices. Except as otherwise provided herein, all communications hereunder
shall be in writing and shall be deemed to have been given on the date delivered
by hand, sent by facsimile transmission, or mailed certified mail, return
receipt requested, if to the Purchasers to the addresses set forth on Exhibit A
hereto, with a copy to Xxxxxxx & Sterling as to Merlin BioMed Private Equity
Fund LP, Merlin BioMed, L.P., Merlin BioMed II, L.P., Merlin BioMed III, L.P.
12
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and Merlin BioMed Int'l Ltd. and to Xxxxxxx Xxxx & Xxxxx LLP, Attention: Xxxxxx
X. Xxxxxxx as to Scout Capital Fund, Ltd. and Scout Capital Partners, L.P., and
if to the Company to 000 Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X.
Xxxx, with a copy to Xxxxxxx X. Xxxxx, Smith, Stratton, Wise, Xxxxx & Xxxxxxx,
000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 which copies shall not
constitute notice. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
8. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 5. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
10. Fees and Expenses. Each party shall pay the fees and expenses of its
advisors, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement, provided, however, that the Company
shall pay the reasonable and documented fees of Shearman & Sterling and Xxxxxxx
Xxxx & Xxxxx LLP, counsel to certain of the Purchasers, incurred by such
Purchasers in connection with the negotiation, preparation, execution, delivery
and performance of this Agreement. Such payment shall be made at the Closing (or
on such date as it is determined that the Closing will not occur for reasons
other than the breach of this Agreement by such Purchasers) and such Purchasers
shall deliver to the Company copies of bills, in such attorneys' usual form, for
such fees.
11. Entire Agreement; Amendment. This Agreement contains the entire
understanding and agreement of the parties with respect to the matters covered
hereby and, except as specifically set forth herein, neither the Company nor any
of the Purchasers makes any representations, warranty, covenant or undertaking
with respect to such matters, and this Agreement supersedes all prior
understandings and agreements with respect to said subject matter, all of which
are merged herein. No provision of this Agreement may be waived or amended other
than by a written instrument signed by the Company and all of the Purchasers.
12. Headings. The article, section and subsection headings in this Agreement are
for convenience only and shall not constitute a part of this Agreement for any
other purpose and shall not be deemed to limit or affect any of the provisions
hereof.
13. Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument and
shall become effective when counterparts have been signed by each party and
delivered to the other parties hereto, it being understood that all parties need
not sign the same counterpart. A signature on a counterpart of this Agreement
delivered by facsimile transmission shall be deemed to be the original
signature.
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14. Representations and Agreements to Survive Delivery. All representations,
warranties, covenants and agreements of the Company herein or in certificates
delivered pursuant hereto shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Purchasers or any
controlling person thereof, and shall survive delivery of, and payment for, the
Shares to and by the Purchasers hereunder for a period of one (1) year,
provided, however, that such one (1) year period shall not be applicable to the
Company's obligations set forth in Section 5 hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorize officers as of the date first above
written.
Alteon Inc.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President & CEO
The Purchasers:
Domain Public Equity Partners LP
By: Domain Public Equity Associates, LLC,
its General Partner
Name: /s/ Xxxxxx Xxxxxxx
Title Managing Member
Oracle Partners, L.P.
By: Oracle Associates, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, as managing director of
Oracle Associates, LLC
Merlin BioMed Private Equity Fund, L.P.
By: Merlin BioMed Private Equity, LLC,
its general partner
By: /s/ Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Member
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Merlin BioMed, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: CFO of General Partner
Merlin BioMed II, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: CFO of General Partner
Merlin BioMed III, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: CFO of General Partner
Merlin BioMed Int'l Ltd.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: CFO of Investment Advisor
DMG Legacy Fund LLC
By: /s/ Xxxxxx XxXxxxx
Name: Xxxxxx XxXxxxx
Title: Chief Investment Officer
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DMG Legacy Institutional Fund LLC
By: /s/ Xxxxxx XxXxxxx
Name: Xxxxxx XxXxxxx
Title: Chief Investment Officer
DMG Legacy International Ltd.
By: /s/ Xxxxxx XxXxxxx
Name: Xxxxxx XxXxxxx
Title: Chief Investment Officer
SDS Merchant Fund, LP
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Managing Member
Scout Capital Fund, Ltd.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Managing Member
Scout Capital Partners, L.P.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Managing Member
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Fiduciary Trust Co. International
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President
MPM BioEquities Master Fund LP
By: /s/ Xxxx xxx Xxxxxx
Name: Xxxx xxx Xxxxxx
Title: Managing Member
MPM BioEquities Fund GmbH and Co KG
By: /s/ Xxxx xxx Xxxxxx
Name: Xxxx xxx Xxxxxx
Title: Managing Member
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Oracle Institutional Partners, L.P.
By: Oracle Associates, LLC, its general partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, managing member
Xxx Oracle Investments, Inc.
By: Oracle Investment Management, Inc.,
its investment advisor
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
President
Oracle Offshore, Ltd.
By: Oracle Investment Management, Inc.,
its investment advisor
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
President
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EXHIBIT A
THE PURCHASERS
Number of Shares
Name and Address to be Purchased Aggregate Purchase Price
---------------- --------------- ------------------------
Oracle Partners, L.P. 390,000 $1,657,500.00
Attn: Xxxxx XxXxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Oracle Institutional Partners, L.P. 98,000 $416,500.00
Attn: Xxxxx XxXxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxx Oracle Investments, Inc. 38,000 $161,500.00
Attn: Xxxxx XxXxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Oracle Offshore, Ltd. 74,000 $314,500.00
Attn: Xxxxx XxXxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Domain Public Equity Partners LP 150,000 $637,500.00
c/o Domain Associates
Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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Number of Shares to
Name and Address be Purchased Aggregate Purchase Price
---------------- ------------ ------------------------
Merlin BioMed Private Equity Fund, L.P. 250,000 $1,062,500.00
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Merlin BioMed, L.P. 310,000 $1,317,500.00
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Merlin BioMed II, L.P. 160,000 $680,000.00
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Merlin BioMed III, L.P. 90,000 $382,500.00
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Merlin BioMed Int'l Ltd. 440,000 $1,870,000.00
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
DMG Legacy Fund LLC 29,250 $124,312.50
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
DMG Legacy Institutional Fund LLC 175,500 $745,875.00
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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Number of Shares to be
Name and Address Purchased Aggregate Purchase Price
---------------- --------- ------------------------
DMG Legacy International Ltd. 245,250 $1,042,312.50
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
SDS Merchant Fund, LP 200,000 $850,000.00
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Scout Capital Fund, Ltd. 213,887 $909,019.75
Attn: Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Scout Capital Partners, L.P. 86,113 $365,980.25
Attn: Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Fiduciary Trust Co. International 1,250,000 $5,312,500.00
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
MPM BioEquities Master Fund LP 236,167 $1,003,709.75
000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
MPM BioEquities Fund GmbH and Co KG 13,833 $58,790.25
000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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EXHIBIT B
FORM OF OPINION OF COUNSEL
DRAFT -- SUBJECT TO CHANGE
[NAMES AND ADDRESSES OF PURCHASERS]
Ladies and Gentlemen:
We have acted as counsel to Alteon Inc., a Delaware corporation (the
"Company"), in connection with the sale by the Company of ____________ shares of
the Company's common stock, $0.01 par value (the "Shares"), pursuant to a Stock
Purchase Agreement dated as of January __, 2002 (the "Agreement""), between the
Company and you. This opinion is being delivered to you pursuant to Section 4(d)
of the Agreement. Capitalized terms used but not otherwise defined herein have
the meanings ascribed to them in the Agreement.
In rendering this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction as being true copies, of
such corporate records of the Company, certificates of public officials and of
officers of the Company and others, and the Registration Statement and the
Prospectus and other documents, including those relating to the issuance and
sale of the Shares by the Company to you and the authorization, execution and
delivery of the Agreement, as we have deemed necessary for the purpose of this
opinion.
In rendering this opinion, we have assumed the genuineness and
authenticity of all signatures on all documents submitted to us for examination;
the completeness, genuineness and authenticity of all documents submitted to us
as originals; the conformity to originals of all documents submitted to us as
facsimile or photostatic copies; the accuracy, completeness and authenticity of
certificates of public officials; and the accuracy and completeness of all
public records examined by us. As to factual matters relevant to our opinions,
we have relied on the representations and warranties contained in the Agreement
and on a certificate of an officer of the Company.
On the basis of such examinations and our consideration of such
questions of law as we have deemed relevant in the circumstances and subject to
the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification.
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2. The outstanding shares of the Common Stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus. The Shares to be
delivered on the Closing Date conform to the description thereof contained in
the Prospectus, have been duly authorized and upon delivery and payment
therefore as contemplated by the Agreement will be validly issued, fully paid
and nonassessable. The stockholders of the Company have no preemptive rights
with respect to its Common Stock pursuant to the Company's certificate of
incorporation or bylaws or, to our knowledge, pursuant to any contract or
agreement to which the Company is a party.
3. No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by the Agreement in connection with the issuance or
sale of the Shares by the Company, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
4. The execution, delivery and performance of the Agreement and the
issuance and sale of the Shares will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute, any
rule, regulation or, to our knowledge, order of any governmental agency or body
or any court having jurisdiction over the Company or any of its properties or,
to our knowledge, any agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the properties of the Company
is subject, or the charter or by-laws of the Company, and the Company has full
power and authority to authorize, issue and sell the Shares as contemplated by
the Agreement.
5. The Registration Statement has been declared effective by the
Commission under the Act, the Prospectus was filed with the Commission pursuant
to Rule 424(b) on July 25, 2001 and January ___, 2002, and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act. The Registration
Statement, as of its effective date, and the Registration Statement and the
Prospectus, as of the dates of the Agreement and as of the Closing Date, and any
amendment or supplement thereto as of its date and the Closing Date (except for
the financial statements, the notes thereto and the related schedules and other
statistical or financial data included or incorporated by reference therein as
to which we express no opinion), complied as to form in all material respects
with the requirements of the Act and the Rules and Regulations.
6. To our knowledge, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or its property of a character required to
be disclosed in the Registration Statement which is not adequately disclosed in
the Prospectus.
7. The Agreement has been duly authorized, executed and delivered by
the Company.
We have participated in conferences with certain officers and
representatives of the Company at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although we
do not pass upon, nor assume any responsibility for, the accuracy, completeness
or fairness of any statement contained in the Registration Statement or
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the Prospectus and we have made no independent check or verification thereof,
based upon the foregoing, no facts have come to our attention which would lead
us to believe that either the Registration Statement as of its effective date,
the Registration Statement and Prospectus as of the dates of the Agreement and
as of the Closing Date or any amendment or supplement thereto, as of its date
and as of the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that we express no belief or opinion
which respect to the financial statements, including the notes and schedules
thereto and other financial and statistical data).
Where the phrase "to our knowledge" is used in this letter, such phrase
refers to the current awareness of the attorneys in this firm who are actively
involved in the representation of the Company as to matters with respect to
which we have been consulted and does not imply knowledge as to any other
matters.
The opinions expressed herein are subject to the effects and
limitations imposed by further legislation, administrative regulation and
judicial decisions, which effects may be prospective or retroactive. Our opinion
in paragraph (4) is limited to laws which normally apply to transactions of the
type contemplated by the Agreement. Our opinion in paragraph (1) as to the good
standing of the Company is based solely on certificates of good standing dated
January __, 2002, and January ___, 2002, issued by the Secretary of State of
Delaware and the Treasurer of the State of New Jersey, respectively.
With respect to the opinions expressed herein, we further advise you
that we express no opinion as to any law or regulation except for laws or
regulations of the State of New Jersey and the United States and the Delaware
General Corporation Law.
This opinion is issued as of the date hereof and is provided by us as
counsel for the Company to you at your request and for your exclusive use only
and is not to be made available to or relied upon by any other persons or
entities, except for counsel to you, which may rely on this opinion in rendering
its opinion to you, without our prior written consent. We undertake no
obligation to update you with respect to any changes herein.
Very truly yours,
