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EXHIBIT 10.1
CONNETICS CORPORATION
COMMON STOCK PURCHASE AGREEMENT
NOVEMBER 20, 1998
This Common Stock Purchase Agreement (the "Agreement") is entered into as
of this 20th day of November, 1998, among Connetics Corporation, a Delaware
corporation (the "Company") and each of the persons listed on EXHIBIT A to this
Agreement (each a "Purchaser" and together the "Purchasers").
SECTION 1
SALE OF COMMON STOCK
1.1 Sale of Common Stock. Subject to the terms and conditions hereof, on
the Closing Date, as defined below, the Company will issue and sell to the
Purchasers, and the Purchasers will purchase from the Company, an aggregate of,
10,000 shares of Common Stock, par value $0.001 per share, of the Company (the
"Common Stock"), at a price per share of $4.00 for an aggregate purchase price
of $40,000. The number of shares of Common Stock to be purchased and the
purchase price to be paid by each Purchaser are outlined on EXHIBIT A, which is
incorporated herein by this reference.
1.2 Closing Date. The closing (the "Closing") of the purchase and sale of
the Common Stock shall be held at the offices of the Company, 0000 Xxxx Xxxxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx at 10:00 a.m. on November 20, 1998 or at such other
time and place upon which the Company and the Purchasers shall mutually agree
(the date of the Closing is hereinafter referred to as the "Closing Date").
1.3 Delivery. At the Closing, the Company will deliver to each Purchaser
a certificate or certificates representing the shares of Common Stock purchased
by such Purchaser, against payment of the purchase price therefor, by wire
transfer or certified or cashier's check drawn on a United States ("U.S.") bank.
1.4 Legend. The certificate or certificates for the Common Stock shall be
subject to a legend restricting transfer under the Securities Act of 1933, as
amended (the "Securities Act") and referring to restrictions on transfer herein,
such legend to be substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (A) AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO, OR (B) AN OPINION OF COUNSEL FOR THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE
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SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (C) FULL COMPLIANCE WITH THE
PROVISIONS OF RULE 144 UNDER THE ACT."
1.5 Removal of Legends. Any legend endorsed on a certificate pursuant to
SECTION 1.4 hereof shall be removed (a) if the shares of the Common Stock
represented by such certificate shall have been effectively registered under the
Securities Act or otherwise lawfully sold in a public transaction, (b) if such
shares may be transferred in compliance with Rule 144(k) promulgated under the
Securities Act, or (c) if the holder of such shares shall have provided the
Company with an opinion of counsel, in form and substance acceptable to the
Company, stating that a public sale, transfer or assignment of such shares may
be made without registration.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers that:
2.1 Organization. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware and is in good standing under
such laws. The Company has requisite corporate power and authority to own, lease
and operate its properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. The Company is qualified to do
business as a foreign corporation in each jurisdiction in which the ownership of
its property or the nature of its business requires such qualification, except
where failure to so qualify would not have a materially adverse effect on the
Company.
2.2 Authorization. The Company has all corporate right, power and
authority to enter into this Agreement and the Registration Rights Agreement
substantially in the form attached hereto as EXHIBIT B (the "Registration Rights
Agreement") and to consummate the transactions contemplated hereby and thereby.
All corporate action on the part of the Company, its directors and stockholders
necessary for the authorization, execution, delivery and performance of this
Agreement and the Registration Rights Agreement by the Company, and the
authorization, sale, issuance and delivery of the Common Stock and the
performance of the Company's obligations hereunder and under the Registration
Rights Agreement has been taken. This Agreement and the Registration Rights
Agreement have been duly executed and delivered by the Company and constitute
legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies, and to
limitations of public policy as they may apply to Section 1.6 of the
Registration Rights Agreement. Upon issuance and delivery pursuant to this
Agreement, all of the Common Stock will be duly and validly issued, fully paid
and nonassessable and free and clear of any liens and encumbrances. There are no
statutory, contractual or other preemptive rights or rights of first refusal
with respect to the issuance and sale of the Common Stock.
2.3 Validity of Securities. The Common Stock, when issued, sold and
delivered by the Company in accordance with the terms of this Agreement, will be
duly and validly issued, fully-paid and nonassessable. The issuance, sale and
delivery of the Common Stock are not subject to
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preemptive or any similar rights of the Stockholders of the Company or any liens
or encumbrances arising through the Company. Based in part upon the
representations of the Purchasers in this Agreement, the offer, sale and
issuance of the Common Stock will be made in compliance with all applicable
federal and state securities laws.
2.4 Capitalization. The authorized capital stock of the Company consists
of 50,000,000 shares of Common Stock, $0.001 par value, of which at September
30, 1998, 17,251,289 shares were issued and outstanding, and 5,000,000 shares of
Preferred Stock, $0.001 par value, of which at September 30, 1998, zero shares
were issued and outstanding. The Company's Board of Directors has authorized the
creation of 90,000 shares of Series B Preferred Stock for potential issuance
under the Company's stockholder rights plan. Since September 30, 1998 no shares
of the Company's Common or Preferred Stock have been issued, except pursuant to
the exercise of options or warrants outstanding as of September 30, 1998. All
such issued and outstanding shares have been duly authorized and validly issued
and are fully paid and nonassessable. In addition to the foregoing, the Company
has reserved and outstanding the following warrants, rights, options and
convertible securities:
(i) warrants for the purchase of 18,395 shares of Common Stock at an
exercise price of $4.89 per share, which warrants expire in
February 2001;
(ii) warrants for the purchase of 22,728 shares of Common Stock at an
exercise price of $11.00 per share, which warrants expire in
December 2000;
(iii) warrants for the purchase of 73,071 shares of Common Stock at an
exercise price of $5.78, which warrants expire in December 2002;
(iv) warrants for the purchase of 20,000 shares of Common Stock at an
exercise price of $7.43 per share, which warrants expire in
December, 2001;
(v) warrants for the purchase of 250,000 shares of Common Stock at an
exercise price of $8.25 per share, which warrants expire in
January 2002;
(vi) warrants for the purchase of 905,000 shares of Common Stock at an
exercise price of $9.08 per share, which warrants expire in May,
2001;
(vii) warrants for the purchase of 6,000 shares of Common Stock at an
exercise price of $6.00 per share, which warrants expire in
January, 2003;
(viii) 2,600,000 shares reserved for issuance pursuant to the Company's
1994 Stock Plan, of which, at September 30, 1998, options (net of
repurchases) to purchase 373,015 shares had been exercised,
options to purchase 1,894,430 shares were outstanding and 332,555
shares remained available for future grant;
(ix) 500,000 shares reserved for issuance pursuant to the Company's
1995 Employee Stock Purchase Plan, of which, at September 30,
1998, 138,132 shares had been issued;
(x) 250,000 shares reserved for issuance under the Company's 1995
Directors' Stock Option Plan, of which, at September 30, 1998,
165,000 options had been granted;
In addition, the Company has an equity line that is potentially available for a
three-year period beginning June 26, 1998. If, during the period from June 1998
through June 2001, the Stock meets certain volume restrictions and trades above
$10.00, then up to $500,000 would be drawn down from the equity line
approximately every three months. The Company may also be obligated to issue
additional shares to Genentech, Inc. before December 31, 1998, as part of the
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consideration paid for the Company's acquisition of rights to gamma interferon
in 1998. Except as described in this Section 2.4, there are no other options,
warrants, conversion privileges or other contractual rights presently
outstanding to purchase or otherwise acquire any authorized but unissued shares
of the Company's capital stock or other securities. All of the issued and
outstanding securities of the Company have been issued in compliance with all
applicable federal and state securities laws.
2.5 No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement do not, and the consummation of the transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both), or
give rise to a right of termination, cancellation or acceleration of any
obligation or to a loss of a material benefit, under, any provision of the
Certificate of Incorporation or Bylaws of the Company or any mortgage,
indenture, lease or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company, its properties or assets, which conflict,
violation, default or right would have a material adverse effect on the
business, properties, prospects or financial condition of the Company.
2.6 Accuracy of Reports; Financial Statements. All reports required to be
filed with the Securities and Exchange Commission (the "SEC") by the Company
from February 1, 1996 (the date of the Company's initial public offering)
through the date of this Agreement under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), copies of which have been made available to each
Purchaser (the "SEC Documents"), have been duly and timely filed, were in
substantial compliance with the requirements of their respective forms when
filed, were complete and correct in all material respects as of the dates at
which the information was furnished, and contained (as of such dates) no untrue
statement of a material fact nor omitted to state a material fact necessary in
order to make the statements made therein in light of the circumstances in which
made not misleading. The Company's financial statements included in the SEC
Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated financial position of
the Company and any subsidiaries at the dates thereof and the consolidated
results of operations and consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments).
2.7 Changes. Since November 13, 1998 (the date on which the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 1998
was filed with the SEC), there has not been (a) any incurrence by the Company of
any material liability, absolute or contingent, or (b) any event or condition of
any character that has materially and adversely affected or might materially and
adversely affect the business, properties, prospects or financial condition of
the Company (as such business is presently conducted and as it is proposed to be
conducted). There is no material liability or contingency of the Company that is
not disclosed in the SEC Documents.
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2.8 Governmental Consents, Etc. No consent, approval or authorization of
or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of this Agreement or the Registration Rights Agreement, or the
consummation of any other transaction contemplated hereby and thereby, except
such filings as may be required to be made with the SEC, the National
Association of Securities Dealers, Inc. ("NASD") and with governmental
authorities for purposes of effecting compliance with the securities and Blue
Sky laws in the states in which Common Stock is offered and/or sold, which
compliance will be effected in accordance with such laws.
2.9 Litigation. There is no pending or, to the best of the Company's
knowledge, threatened lawsuit, administrative proceeding, arbitration, labor
dispute or governmental investigation ("Litigation") to which the Company is a
party or by which any material portion of its assets, taken as a whole, may be
bound, nor is the Company aware of any basis therefor, which Litigation, if
adversely determined, would have a material adverse effect on the business,
properties, prospects or financial condition of the Company.
2.10 Intellectual Property. To its knowledge, and except as disclosed in
the SEC Documents, the Company owns or possesses sufficient legal rights to all
patents, trademarks, service marks, tradenames, copyrights, trade secrets,
licenses, information and proprietary rights and processes necessary for its
business as now conducted and as proposed to be conducted, without infringement
of any rights of a third party. The Company has not received any communications
alleging that the Company has violated or, by conducting its business as
proposed, would violate any of the patents, trademarks, service marks,
tradenames, copyrights, trade secrets or other proprietary rights or processes
of any other person or entity, which violation would have a material adverse
effect on the business, properties, prospects or financial condition of the
Company. Except as disclosed in the SEC Documents, the Company has not granted
(nor has the Company licensed from a third party) any material rights to or
licenses to its patents, trademarks, service marks, tradenames, copyrights,
trade secrets or other proprietary rights or processes.
2.11 Registration Rights. Except as provided in the Registration Rights
Agreement and as disclosed in the SEC Documents, the Company has not granted or
agreed to grant any rights to register its securities under the Securities Act,
including piggy-back rights, to any person or entity.
2.12 No Material Default. The Company is not in violation of or default
under any provision of (a) its Certificate of Incorporation or Bylaws or (b) any
mortgage, indenture, lease or other agreement or instrument, permit, concession,
franchise or license to which it is a party or by which it is bound or (c) any
federal or state judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company, except with respect to clauses (b) and (c)
above, such violations or defaults as would not have a material adverse effect
on the business, properties, prospects or financial condition of the Company.
2.13 Disclosure. No representation or warranty of the Company contained
in this Agreement or the exhibits attached to this Agreement (when read together
and taken as a whole),
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contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein in
light of the circumstances under which they were made not misleading.
2.14 Solvency; No Default. As of this date the Company has sufficient
funds and cash flow to pay its debts and other liabilities as they become due,
and the Company is not in default with respect to any material debt or
liability.
2.15 Rights of Common Stock. The Common Stock shall have the rights,
preferences, privileges and restrictions provided in the Company's Amended and
Restated Certificate of Incorporation.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby represents and warrants to the Company as follows:
3.1 Investment. Purchaser is acquiring the Common Stock for investment
for its own account, not as a nominee or agent and not with a view to or for
resale in connection with any distribution thereof. Purchaser understands that
the Common Stock purchased by such Purchaser from the Company pursuant to this
Agreement has not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of such Purchaser's
investment intent and the accuracy of such Purchaser's representations as
expressed herein.
3.2 Accredited Investor. Each Purchaser is an "accredited investor" as
defined by Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act"). The SEC documents have been made available to each Purchaser,
and each Purchaser has received all the information it has requested regarding
the Company. Each Purchaser has such business and financial experience as is
required to give it the capacity to protect its own interests in connection with
the purchase of the Common Stock.
3.3 Authority. This Agreement and the Registration Rights Agreement have
been duly executed and delivered by each Purchaser and constitute legal, valid
and binding obligations of the Purchasers, enforceable in accordance with their
respective terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies, and to limitations
of public policy as they may apply to Section 1.6 of the Registration Rights
Agreement. The execution and delivery of this Agreement and the Registration
Rights Agreement do not, and the consummation of the transactions contemplated
hereby and thereby will not, conflict with or result in any violation of any
obligation under any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Purchasers.
3.4 Government Consents, Etc. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Purchasers is
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required in connection with the valid execution and delivery of this Agreement,
or the offer, sale or issuance of the Common Stock, or the consummation of any
other transaction contemplated hereby.
3.5 Investigation. Each Purchaser has had a reasonable opportunity to
discuss the Company's business, management and financial affairs with the
Company's management.
SECTION 4
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
The obligations of each Purchaser to the Company under this Agreement are
subject to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived:
4.1 Representations and Warranties Correct. The representations and
warranties made by the Company in SECTION 2 shall be true and correct in all
material respects on the Closing Date with the same effect as though such
representations and warranties had been made on and as of the Closing Date.
4.2 Covenants. All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects.
4.3 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
4.4 No Law Prohibiting or Restricting Sale. There shall not be in effect
any law, rule or regulation prohibiting or restricting such sale, or requiring
any consent or approval of any person which shall not have been obtained to
issue the Common Stock (except as otherwise referenced in this Agreement).
4.5 Compliance Certificate. The Company shall have delivered to the
Purchasers a certificate substantially in the form attached as EXHIBIT C to this
Agreement, executed by a duly authorized officer, dated the Closing Date, and
certifying to the fulfillment of the conditions specified in SECTIONS 4.1 and
4.2.
4.6 Registration Rights Agreement. On or before the Closing, the Company
and the Purchasers shall have executed and delivered a counterpart of the
Registration Rights Agreement attached as EXHIBIT B.
4.7 Legal Opinion. The Purchasers shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, an opinion
addressed to the Purchasers, dated the Closing Date, in substantially the form
attached as EXHIBIT D to this Agreement.
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SECTION 5
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company under this Agreement are subject to the
fulfillment on or prior to the Closing of each of the following conditions,
unless otherwise waived:
5.1 Representations and Warranties Correct. The representations and
warranties made by the Purchaser(s) in SECTION 3 hereof shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date.
5.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing Date
shall have been performed or complied with in all material respects.
5.3 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
5.4 No Law Prohibiting or Restricting Such Sale. There shall not be in
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of any person which shall not have been
obtained to issue the Common Stock (except as otherwise provided in this
Agreement).
SECTION 6
MISCELLANEOUS
6.1 Governing Law. This Agreement and all acts and transactions pursuant
to this Agreement and the rights and obligations of the parties to this
Agreement shall be governed, construed and interpreted in accordance with the
laws of the State of California, without giving effect to principles of
conflicts of law.
6.2 Survival. Unless otherwise set forth in this Agreement, the
warranties, representations and covenants of the Company and the Purchasers
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
6.3 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties to this Agreement and their respective
successors and assigns.
6.4 Entire Agreement; Amendment. This Agreement, the Registration Rights
Agreement and the other documents delivered pursuant to this Agreement
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and thereof and supersede all prior
agreements and understandings among the parties relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended, waived,
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discharged or terminated other than by a written instrument signed by the party
against which enforcement of any such amendment, waiver, discharge or
termination is sought.
6.5 Notices and Dates. Unless otherwise provided in this Agreement, any
notice required or permitted by this Agreement shall be in writing and shall be
deemed sufficient upon delivery, when delivered personally or by overnight
courier and addressed to the party to be notified at such party's address as set
forth on the signature page to this Agreement or as subsequently modified by
written notice. If any date provided for in this Agreement falls on a Saturday,
Sunday or legal holiday, such date shall be deemed extended to the next business
day.
6.6 Brokers.
(a) Except as disclosed to the Purchasers, the Company has not
engaged, consented to or authorized any broker, finder or intermediary to act on
its behalf, directly or indirectly, as a broker, finder or intermediary in
connection with the transactions contemplated by this Agreement. The Company
agrees to indemnify and hold harmless the Purchasers from and against all fees,
commissions or other payments owing to any party acting on behalf of the Company
hereunder.
(b) No Purchaser has engaged, consented to or authorized any
broker, finder or intermediary to act on its behalf, directly or indirectly, as
a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. Each Purchaser hereby agrees to indemnify and
hold harmless the Company from and against all fees, commissions or other
payments owing to any party acting on behalf of such Purchaser hereunder.
6.7 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
6.8 Costs and Expenses. Irrespective of whether the Closing is effected,
the Company shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement.
6.9 No Third Party Rights. Nothing in this Agreement shall create or be
deemed to create any rights in any person or entity not a party to this
Agreement.
6.10 Captions and Headings. The captions and headings used herein are for
convenience and ease of reference only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.
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6.11 Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties to this Agreement have executed or caused
their respective authorized officers to execute this Agreement as of the first
date written above.
"COMPANY"
Connetics Corporation Address:
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
By: ____________________________ Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
PURCHASER(S)
By: ____________________________ Address:
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EXHIBIT A
LIST OF PURCHASERS
Name Number of Shares Purchase Price
---- ---------------- --------------
1) Xxxxxxxxx X. Xxxxxx 50,000 $ 200,000.00
2) Xxxx X. Xxxx 12,500 $ 50,000.00
3) Xxxxx Family Partnership 10,000 $ 40,000.00
4) Alta BioPharma Partners, L.P. 155,397 $ 621,588.00
5) Alta Embarcadero BioPharma, LLC 5,857 $ 23,428.00
6) Connetics Partners (Alta Bio), LLC 88,746 $ 354,984.00
7) Domain Partners III, L.P. 241,640 $ 966,560.00
8) DP III Associates, L.P. 8,360 $ 33,440.00
9) Domain Partners IV, L.P. 1,220,747 $ 4,882,988.00
10) XX XX Associates, L.P. 29,253 $ 117,012.00
11) Jalaa Equities 25,000 $ 100,000.00
12) New Enterprise Associates VIII, Limited Partnership 1,233,750 $ 4,935,000.00
13) NEA Presidents Fund, L.P. 15,000 $ 60,000.00
14) NEA Ventures 1998, Limited Partnership 1,250 $ 5,000.00
15) Merlin BioMed Asset Management 45,000 $ 180,000.00
16) Snowdon L.P. 25,000 $ 100,000.00
Total shares issued: 3,167,500 $12,670,000.00
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EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
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EXHIBIT C
CONNETICS CORPORATION
COMPLIANCE CERTIFICATE
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies as follows:
1. He is the duly elected President and Chief Executive Officer of
Connetics Corporation, a Delaware corporation (the "Company").
2. The representations and warranties of the Company set forth in Section
2 of the Common Stock Purchase Agreement (the "Agreement") dated November 20,
1998 are true and correct in all material respects as though made on and as of
the date of this Certificate.
3. The Company has performed and complied with all covenants, agreements,
obligations and conditions contained in the Agreement to be performed by the
Company on or prior to the Closing Date.
The undersigned has executed this Certificate this 3rd day of December
1998.
------------------------------
Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer
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EXHIBIT D
OPINION OF XXXXXX XXXXXXX XXXXXXXX & XXXXXX
