STOCK PURCHASE AGREEMENT
BETWEEN
INHALE THERAPEUTIC SYSTEMS, INC.
AND
CAPITAL RESEARCH AND MANAGEMENT COMPANY
DATED DECEMBER 8, 1998
TABLE OF CONTENTS
PAGE
1. PURCHASE OF COMMON STOCK............................................ 1
2. CLOSING DATE; DELIVERY.............................................. 1
2.1 Closing; Closing Date......................................... 1
2.2 Delivery...................................................... 1
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................... 1
3.1 Authorization................................................. 1
3.2 No Conflict with Other Instruments............................ 1
3.3 Certificate of Incorporation; By-laws......................... 2
3.4 Organization, Good Standing and Qualification................. 2
3.5 Disclosure Documents.......................................... 2
3.6 Capitalization................................................ 2
3.7 Subsidiaries.................................................. 2
3.8 Valid Issuance of Shares...................................... 2
3.9 Litigation, etc............................................... 2
3.10 Governmental Consents......................................... 3
3.11 Brokers Fee................................................... 3
3.12 Contracts..................................................... 3
3.13 No Material Change............................................ 3
3.14 Intellectual Property......................................... 3
3.15 Compliance.................................................... 3
3.16 Investment Company............................................ 4
3.17 SEC Documents; Financial Statements........................... 4
3.18 Additional Information........................................ 4
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER......................... 4
4.1 Legal Power................................................... 4
4.2 Due Execution................................................. 4
4.3 Investment Representations.................................... 4
4.4 No Brokers.................................................... 6
5. CONDITIONS TO CLOSING............................................... 6
5.1 Conditions to Obligations of Purchaser at Closing............. 6
5.2 Conditions to Obligations of the Company at Closing........... 7
6. REGISTRATION OF THE SHARES.......................................... 7
6.2 Indemnification............................................... 8
7. MISCELLANEOUS....................................................... 11
i.
TABLE OF CONTENTS
(CONTINUED)
PAGE
7.1 Survival of Representations, Warranties and Agreements........ 11
7.2 Governing Law................................................. 11
7.3 Successors and Assigns........................................ 12
7.4 Entire Agreement.............................................. 12
7.5 Severability.................................................. 12
7.6 Amendment and Waiver.......................................... 12
7.7 Notices....................................................... 12
7.8 Fees and Expenses............................................. 12
7.9 Titles and Subtitles.......................................... 12
7.10 Counterparts................................................. 12
7.11 NASDAQ....................................................... 12
7.12 Acknowledgment of Purchaser Regarding Document Delivery...... 12
EXHIBITS:
---------
Exhibit A SCHEDULE OF EXCEPTIONS
Exhibit B CERTIFICATE OF INCORPORATION
Exhibit C BYLAWS
Exhibit D FORM OF OPINION OF XXXXXX GODWARD LLP
ii.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of 8th December 1998, by and between INHALE
THERAPEUTIC SYSTEMS, INC., a Delaware corporation with its principal office
at 000 Xxxxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000 (the "Company"), and
CAPITAL RESEARCH AND MANAGEMENT COMPANY, a Delaware corporation with its
principal office at 333 S. Hope Street, 55th Floor, Los Angeles, California
90071 (the "Purchaser"), on behalf of SMALLCAP World Fund, Inc. and
American Variable Insurance Series-Growth Fund.
IN CONSIDERATION of the mutual covenants and agreements contained
herein, the Company and the Purchaser agree as follows:
1. PURCHASE OF COMMON STOCK. Subject to the terms and conditions
of this Agreement, and in reliance on the representations and warranties
contained herein, at the Closing (as hereinafter defined) the Company agrees
to sell to Purchaser and Purchaser agrees to purchase from the Company, one
million two hundred thousand (1,200,000) shares of the Company's Common Stock
(the "Shares"). The purchase price per share shall be $31.00.
2. CLOSING DATE; DELIVERY.
2.1 CLOSING; CLOSING DATE. Subject to the terms of Section 5,
the closing of the sale and purchase of the Shares under Section 1 of this
Agreement (the "Closing") shall be held at 2:00 p.m. (PDT) on December 9,
1998 the "Closing Date") at the offices of the Company, or at such other time
and place as the Company and Purchaser may agree.
2.2 DELIVERY. At the Closing, subject to the terms and
conditions hereof, the Company will deliver to Purchaser a stock certificate,
in the names designated by Purchaser, representing the shares of Common Stock
deliverable at such Closing, dated as of Closing, against payment of the
purchase price therefor by wire transfer, unless other means of payment shall
have been agreed upon by Purchaser and the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Subject to and
except as disclosed by the Company in the Schedule of Exceptions attached
hereto as Exhibit A, the Company hereby represents and warrants and covenants
to Purchaser as follows:
3.1 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement has been taken. The
Company has the requisite corporate power to enter into this Agreement and
carry out and perform its obligations under the terms of this Agreement. At
the Closing, the Company will have the requisite corporate power to sell the
shares of Common Stock to be sold at such Closing. This Agreement has been
duly authorized, executed and delivered by the Company and, upon due
execution and delivery by Purchaser, this Agreement will be a valid and
binding obligation of the Company, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by equitable principles.
3.2 NO CONFLICT WITH OTHER INSTRUMENTS. The execution,
delivery and performance of this Agreement will not result in any violation
of, be in conflict with, or constitute a default under, with or without the
passage of time or the giving of notice: (a) any provision of the Company's
Certificate of Incorporation or Bylaws as either shall be in effect; (b) any
provision of any judgment, decree or order to which the Company is a party or
by which it is bound; (c) any material contract, obligation or commitment to
which the Company is a party or
1.
by which it is bound; or (d) any statute, rule or governmental regulation
applicable to the Company.
3.3 CERTIFICATE OF INCORPORATION; BY-LAWS. Attached hereto as
Exhibits B and C, respectively, are true, correct and complete copies of the
Certificate of Incorporation and Bylaws of the Company, as in effect on the
date hereof.
3.4 ORGANIZATION, GOOD STANDING AND QUALIFICATION. 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 corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
3.5 DISCLOSURE DOCUMENTS. The Company's Form 10-K filed with
the Securities and Exchange Commission on March 23, 1998, as amended on April
30, 1998, and Forms 10-Q for the fiscal quarters ended March 31, June 30, and
September 30, 1998, did not, when filed with the Securities and Exchange
Commission, contain any untrue statements of material fact or omit to state
any material fact necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading.
3.6 CAPITALIZATION
(a) The authorized capital stock of the Company consists of
50,000,000 shares of Common Stock, of which 15,688,596 shares were issued and
outstanding as of September 30, 1998, and 10,000,000 shares of Preferred
Stock, none of which are outstanding. All such issued and outstanding shares
have been duly authorized and validly issued, and are fully paid and
nonassessable and have been issued in compliance with all applicable federal
and state securities laws.
(b) The Company had outstanding options to purchase 2,939,256
shares of Common Stock and outstanding warrants to purchase 20,000 shares of
Common Stock as of September 30, 1998. There are no preemptive or other
outstanding rights, options, warrants, conversion rights or agreements for
the purchase or acquisition from the Company of any shares of its capital
stock or other securities of the Company.
3.7 SUBSIDIARIES. The Company does not presently own or control,
directly or indirectly, and has no stock or other interest as owner or
principal in, any other corporation or partnership, joint venture,
association or other business venture or entity.
3.8 VALID ISSUANCE OF SHARES. The shares of Common Stock which
will be purchased by Purchaser hereunder, when issued, sold and delivered in
accordance with the terms hereof for the con-sideration expressed herein,
will be duly and validly authorized and issued, fully paid and nonassessable
and, based in part upon the representations of Purchaser in Section 4.3 of
this Agreement, will be issued in compliance with all applicable federal and
state securities laws.
3.9 LITIGATION, ETC. There is no action, suit or proceeding
pending nor, to the best of its knowledge, any action, suit, proceeding or
investigation currently threatened against the Company, nor, to the best of
its knowledge, is there any basis therefor, which might result, either
individually or in the aggregate, in any material adverse change in the
assets, condition, affairs or prospects of the Company, financial or
otherwise. The foregoing includes, without limitation, any action, suit,
proceeding or investigation, pending or threatened, that questions the
validity of this Agreement or the right of the Company to enter into the
Agreement.
2.
3.10 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority
on the part of the Company is required in connection with the consummation of
the transactions contemplated by this Agreement, except for notices required
or permitted to be filed with certain state and federal securities
commissions, which notices will be filed on a timely basis.
3.11 BROKERS FEE. Except for Xxxxx Xxxxx Xxxxxx & Company, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by
this Agreement based on arrangements made by the Company. The Company is
solely responsible for any fee or commission payable to Xxxxx Xxxxx Xxxxxx &
Company in connection with the transactions contemplated by this Agreement,
and covenants to pay such fee or commission at Closing and agrees to
indemnify Purchaser against all liabilities related to such fees.
3.12 CONTRACTS. The contracts described in the Private
Placement Memorandum (as defined below) or incorporated by reference therein
are in full force and effect on the date hereof; and neither the Company, nor
to the best of the Company's knowledge, any other party is in material breach
of or default under any of such contracts.
3.13 NO MATERIAL CHANGE. Since September 30, 1998 and except
as described in or specifically contemplated by the Private Placement
Memorandum, (i) the Company has not incurred any material liabilities or
obligations, indirect, or contingent, or entered into any material verbal or
written agreement or other transaction which is not in the ordinary course of
business or which could result in a material adverse effect on the Company;
(ii) the Company has not sustained any material loss or interference with its
business or properties from fire, flood, windstorm, accident or other
calamity, whether or not covered by insurance; (iii) the Company has not paid
or declared any dividends or other distributions with respect to its capital
stock and the Company is not in material default in the payment of principal
or interest on any outstanding debt obligations; (iv) there has not been any
change in the capital stock other than the sale of the Shares hereunder,
shares issued pursuant to employee equity incentive plans or purchase plans
approved by the Company's Board of Directors or indebtedness material to the
Company (other than in the ordinary course of business); and (v) there has
not been any material adverse change in the condition (financial or
otherwise), business, properties or results of operations of the Company.
3.14 INTELLECTUAL PROPERTY. Except as disclosed in or
specifically contemplated by the Private Placement Memorandum or incorporated
by reference therein, the Company has sufficient trademarks, trade names,
patent rights, copyrights, licenses, and governmental authorizations to
conduct its businesses as now conducted; and the Company has no knowledge of
any material infringement by it of trademark, trade name rights, patent
rights, copyrights, licenses, trade secrets or other similar rights of
others, and no claim has been made against the Company regarding trademark,
trade name, patent, copyright, license, trade secrecy or other infringement
which could have a material adverse effect on the condition (financial or
otherwise), business or results of operations of the Company.
3.15 COMPLIANCE. The Company has not been advised, and has no
reason to believe, that it is not conducting its business in compliance with
all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, including, without limitation, all applicable local,
state and federal environmental laws and regulations; except where failure to
be so in compliance would not materially adversely affect the condition
(financial or otherwise), business or results of operations of the Company.
3.
3.16 INVESTMENT COMPANY. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
3.17 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has
filed in a timely manner all documents that it was required to file with the
SEC under Sections 13, 14(a) and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), during the twelve (12) months
preceding the date of this Agreement. As of their respective filing dates
(or, if amended prior to the date of this Agreement, when amended), all
documents filed by the Company with the SEC (the "SEC Documents") complied in
all material respects with the requirements of the Exchange Act. None of the
SEC Documents as of their respective dates contained any untrue statement of
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company 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 financial position of the Company at the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments). The Company is eligible to use the Registration Statement on
Form S-3 for resale of the Shares.
3.18 ADDITIONAL INFORMATION. The Company represents and warrants
that the information contained in the Private Placement Memorandum dated
December 8, 1998 (the "Private Placement Memorandum") containing certain
summary information relating to the sale by the Company of the Shares
pursuant to the Agreement, including all addenda and exhibits thereto (other
than the Appendices), is true and correct in all material respects.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to the Company as follows:
4.1 LEGAL POWER. Purchaser has the requisite legal power to
enter into this Agreement, to carry out and perform its obligations under the
terms of this Agreement and, at the Closing, will have the requisite legal
power to purchase the Shares.
4.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by Purchaser, and, upon due execution and delivery by
the Company, this Agreement will be a valid and binding obligation of
Purchaser, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by equitable principles.
4.3 INVESTMENT REPRESENTATIONS. In connection with the purchase
of the Shares, the Purchaser makes the following representations:
(a) the Purchaser, taking into account the personnel and
resources it can practically bring to bear on the purchase of the Shares
contemplated hereby, is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase
of the Shares, including investments in securities issued by the Company, and
has requested, received, reviewed and considered all information it deems
relevant in making an informed decision to purchase the Shares;
4.
(b) the Purchaser is acquiring the Shares in the ordinary
course of its business and for its own account for investment only (as
defined for purposes of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976 and the regulations thereunder) and with no present intention of
distributing any such Shares or any arrangements or understanding with any
other persons regarding the distribution of such Shares;
(c) the Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer, or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of) any of the Shares
except in compliance with the Securities Act of 1933, as amended, (the "Act")
and the rules and regulations of the Securities and Exchange Commission (the
"SEC");
(d) the Purchaser has completed or caused to be completed the
Registration Statement Questionnaire and the Stock Certificate Questionnaire,
both attached hereto as Appendix I, for use in preparation of the
Registration Statement and the answers thereto are true and correct to the
best knowledge of the Purchaser as of the date hereof and will be true and
correct as of the effective date of the Registration Statement;
(e) the Purchaser has, in connection with its decision to
purchase the Shares, relied solely upon the Private Placement Memorandum and
the documents included therein and the representations and warranties of the
Company contained herein;
(f) the Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the Act;
(g) the Purchaser understands that (i) the shares of Common
Stock to be purchased under this Agreement have not been registered under the
Act by reason of a specific exemption therefrom, that such securities must be
held by Purchaser, and that Purchaser must, therefore, bear the economic risk
of such investment, until a subsequent disposition thereof is registered
under the Act or is exempt from such registration; (ii) each certificate
representing such shares will be endorsed with the following legends:
(1) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(2) THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS, INCLUDING RESTRICTIONS ON
TRANSFERABILITY, OF THAT CERTAIN STOCK PURCHASE AGREEMENT, DATED DECEMBER 8,
1998. A COPY OF SUCH STOCK PURCHASE AGREEMENT WILL BE FURNISHED TO THE
RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO
INHALE THERAPEUTIC SYSTEMS, INC. AT ITS PRINCIPAL PLACE OF BUSINESS."
(3) Any legend required to be placed thereon by the
Company's Bylaws (and shown on Exhibit C hereto or as may hereafter be added
to such Bylaws
5.
with respect to all Common Stock of the Company) or under applicable state
securities laws; and (iii) the Company will instruct any transfer agent not
to register the transfer of the shares of Common Stock purchased pursuant to
this Agreement (or any portion thereof) unless the conditions specified in
the foregoing legends are satisfied, until such time as a transfer is made,
pursuant to the terms of this Agreement, and in compliance with Rule 144 or
pursuant to a registration statement or, if the opinion of counsel referred
to above is to the further effect that such legend is not required in order
to establish compliance with any provisions of the Act or this Agreement; and
(h) the Purchaser has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the shares of Common Stock purchased hereunder.
4.4 NO BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based on arrangements
made by Purchaser.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO OBLIGATIONS OF PURCHASER AT CLOSING.
Purchaser's obligation to purchase the Shares at the Closing is subject to
the fulfillment to Purchaser's satisfaction, on or prior to the Closing, of
all of the following conditions, any of which may be waived by Purchaser:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in
Section 3 hereof shall be true and correct in all material respects on the
Closing Date with the same force and effect as if they had been made on and
as of said date and the Company shall have performed and complied with all
obligations and conditions herein required to be performed or complied with
by it on or prior to the Closing and a certificate duly executed by an
officer of the Company, to the effect of the foregoing, shall be delivered to
the Purchaser.
(b) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to counsel to the Purchaser,
and counsel to the Purchaser shall have received all such counterpart
originals or certified or other copies of such documents as they may
reasonably request.
(c) QUALIFICATIONS, LEGAL INVESTMENT. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory
body of the United States or of any state that are required in connection
with the lawful sale and issuance of the Shares shall have been duly obtained
and shall be effective on and as of the Closing. No stop order or other
order enjoining the sale of the Shares such Closing shall have been issued
and no proceedings for such purpose shall be pending or, to the knowledge of
the Company, threatened by the Securities and Exchange Commission, or any
commissioner of corporations or similar officer of any state having
jurisdiction over this transaction. At the time of the Closing, the sale and
issuance of the Shares shall be legally permitted by all laws and regulations
to which the Purchaser and the Company are subject.
(d) OPINION OF COUNSEL TO THE COMPANY. In connection with
any sale of shares hereunder, the Purchaser shall have received from Xxxxxx
Godward LLP, counsel to the Company, an opinion letter addressed to it, dated
the date of the Closing in substantially the form attached hereto as Exhibit
D.
6.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT CLOSING. The
Company's obligation to issue and sell the Shares to be sold at the Closing
is subject to the fulfillment to the Company's satisfaction, on or prior to
the Closing of the following conditions, any of which may be waived by the
Company:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties made by the Purchaser in Section 4 hereof shall be true and
correct in all material respects at the date of the Closing with the same
force and effect as if they had been made on and as of the date hereof.
(b) PERFORMANCE OF OBLIGATIONS. Purchaser shall have
performed and complied with all agreements and conditions herein required to
be performed or complied with by it on or before the Closing and a
Certificate duly executed by an officer of the Purchaser, to the effect of
the foregoing, shall be delivered to the Company.
(c) QUALIFICATIONS, LEGAL INVESTMENT. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory
body of the United States or of any state that are required in connection
with the lawful sale and issuance of the Shares shall have been duly obtained
and shall be effective on and as of the Closing. No stop order or other
order enjoining the sale of such shares shall have been issued and no
proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by the SEC, or any commissioner of corporations or
similar officer of any state having jurisdiction over this transaction. At
the time of the Closing the sale and issuance of the Shares shall be legally
permitted by all laws and regulations to which the Purchaser and the Company
are subject.
6. REGISTRATION OF THE SHARES.
6.1 As soon as practical following the Closing, and in any event
within 10 days thereafter, the Company will prepare and file with the SEC a
registration statement on Form S-3 (or such other form that the Company may
be eligible to use) relating to the sale of the Shares by Purchaser from time
to time (the "Registration Statement"), and use its best efforts, subject to
receipt of necessary information from Purchaser, to cause such Registration
Statement to be declared effective by the SEC as soon as practicable after
the SEC has completed its review process. In the event the Registration
Statement has not been declared effective by the SEC within 60 days of its
filing date, the purchase price shall be re-calculated as follows: (a) if
the effective date occurs more than 60 days but less than 75 days from the
filing date, the purchase price shall be reduced by five percent (5%), (b) if
the effective date occurs more than 75 days but less than 120 days from the
filing date, the purchase price shall be reduced by ten percent (10%) and (c)
if the effective date has not occurred within 120 days from the filing date,
the purchase price shall be reduced by twenty-five percent (25%). Within 15
days of the earlier of (i) the effective date of the Registration Statement
or (ii) the date that is 120 days from the filing date, the Company shall
refund the amount of the discount to the Purchaser by making a cash payment
to Purchaser. The Company agrees to use its best efforts to keep such
Registration Statement effective until the date on which the Shares may be
resold by Purchaser without registration by reason of Rule 144(k) under the
Act of 1933 or any other rule of similar effect. Notwithstanding the
foregoing, following the effectiveness of the Registration Statement, the
Company may, at any time, suspend the effectiveness of the Registration
Statement for up to no longer than 30 days, as appropriate (a "Suspension
Period"), by giving notice to the Purchaser, if the Company shall have
determined that the Company may be required to disclose any material
corporate development. The Company will use its best efforts to minimize the
length of any Suspension Period. Notwithstanding the foregoing, no more than
two Suspension Periods may occur in any twelve (12) month period. Purchaser
agrees that, upon receipt of any notice from the Company of a Suspension
Period, Purchaser will not sell any Shares pursuant to the Registration
Statement until (i) Purchaser is advised in writing by the Company that the
use of the applicable prospectus
7.
may be resumed, (ii) Purchaser has received copies of any additional or
supplemental or amended prospectus, if applicable, and (iii) Purchaser has
received copies of any additional or supplemental filings which are
incorporated or deemed to be incorporated by reference in such prospectus.
Purchaser further covenants to notify the Company promptly of the sale of all
of its Shares.
6.2 INDEMNIFICATION. For the purpose of this Section 6.2:
(i) the term "Purchaser/Affiliate" shall include
Purchaser and any affiliate of Purchaser;
(ii) the term "Registration Statement" shall include any
final prospectus, exhibit, supplement or amendment included in or relating to
the Registration Statement referred to in Section 6.1.
(a) The Company agrees to indemnify and hold harmless
Purchaser and each person, if any, who controls Purchaser within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which Purchaser or such controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law 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
or expenses (or actions in respect thereof as contemplated below) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, including the
prospectus, financial statements and schedules, and all other documents filed
as a part thereof or incorporated by reference therein, as amended at the
time of effectiveness of the Registration Statement, including any
information deemed to be a part thereof as of the time of effectiveness
pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules
and Regulations, or the prospectus, in the form first filed with the
Commission pursuant to Rule 424(b) of the Regulations, or filed as part of
the Registration Statement at the time of effectiveness if no Rule 424(b)
filing is required (the "Prospectus"), or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state in any of them a material fact required to be stated therein or
necessary to make the statements in any of them not misleading, or arise out
of or are based in whole or in part on any inaccuracy in the representations
and warranties of the Company contained in this Agreement, or any failure of
the Company to perform its obligations hereunder or under law, and will
reimburse Purchaser and each such controlling person for any legal and other
expenses as such expenses are reasonably incurred by Purchaser or such
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; PROVIDED, HOWEVER, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage, liability or expense
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 amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company (i) by or on
behalf of Purchaser expressly for use therein or (ii) the failure of
Purchaser to comply with the covenants and agreements contained in this
Agreement respecting the sale of the Shares, the inaccuracy of any
representations made by Purchaser herein or any statement or omission in any
Prospectus that is corrected in any subsequent Prospectus that was delivered
to Purchaser prior to the pertinent sale or sales by Purchaser. In addition
to its other obligations under this paragraph (a), the Company agrees that,
as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, or any
inaccuracy in the representations and warranties of the Company in this
Agreement or failure to perform its obligations in this Agreement, all as
described in this paragraph (a), it will reimburse Purchaser on a quarterly
basis for all reasonable legal or other
8.
expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of the Company's obligation, to reimburse Purchaser for such
expenses and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have been improper,
Purchaser shall promptly return it to the Company together with interest,
compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing)
announced from time to time by Bank of America National Trust and Savings
Association, San Francisco, California (the "Prime Rate"). Any such interim
reimbursement payments which are not made to a Purchaser within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the date
of such request. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Purchaser will indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of the Securities Act, against any losses, claims, damages,
liabilities or expenses to which the Company, each of its directors, each of
its officers who signed the Registration Statement or controlling person may
become subject, under the Securities Act, the Exchange Act, or any other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected
with the written consent of Purchaser) insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any failure of Purchaser
to comply with the covenants and agreements contained in this Agreement
respecting the sale of the Shares, the inaccuracy of any representation made
by Purchaser herein or any untrue or alleged untrue statement of any 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 amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Purchaser expressly for use
therein, and will reimburse the Company, each of its directors, each of its
officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. In addition to its other obligations under this paragraph (b),
Purchaser agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any failure to comply, statement or omission, or any alleged
failure to comply, statement or omission, described in this paragraph (b)
which relates to written information furnished to the Company by or on behalf
of any purchaser, it will reimburse the Company (and, to the extent
applicable, each officer, director or controlling person) on a quarterly
basis for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of Purchaser's obligations to reimburse
the Company (and, to the extent applicable, each officer, director or
controlling person) for such expenses and the possibility that such payments
might later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, the Company (and, to the extent applicable, each
officer, director or controlling person) shall promptly return it to
Purchaser together with interest, compounded daily, determined on the basis
of the Prime Rate. Any such interim reimbursement payments which are not
made to the Company within 30 days of a request for reimbursement shall bear
interest at the Prime Rate
9.
from the date of such request. This indemnity agreement will be in addition
to any liability which Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6.2 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 6.2 notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party for contribution or otherwise than under the
indemnity agreement contained in this Section 6.2 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it may wish,
jointly with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be a conflict between the
positions of the indemnifying party and the indemnified party in conducting
the defense of any such action or that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf
of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 6.2 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel, approved by
such indemnifying party in the case of paragraph (a), representing the
indemnified parties who are parties to such action) or (ii) the indemnified
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 6.2
is required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 6.2 in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then each applicable
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of any losses, claims, damages, liabilities or
expenses referred to herein (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and Purchaser from the
placement of Common Stock 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 the relative fault of the Company and Purchaser in connection
with the statements or omissions or inaccuracies in the representations and
warranties in this Agreement which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The respective relative benefits received by the Company on
the one hand and Purchaser on the other shall be deemed to be in the same
proportion as the amount paid by Purchaser to the Company pursuant to this
Agreement for the Shares purchased by Purchaser that were sold pursuant to
the Registration Statement bears to the difference (the "Difference") between
the amount Purchaser paid for the Shares that were sold pursuant to the
Registration Statement and the amount received by Purchaser from such sale.
The relative fault of the Company and Purchaser shall be determined by
reference to,
10.
among other things, whether the untrue or alleged statement of a material
fact or the omission or alleged omission to state a material fact or the
inaccurate or the alleged inaccurate representation and/or warranty relates
to information supplied by the Company or by Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, claims, damages, liabilities and expenses referred
to above shall be deemed to include, subject to the limitations set forth in
paragraph (c) of this Section 6.2 any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in paragraph (c) of
this Section 6.2 with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this paragraph (d);
PROVIDED, HOWEVER, that no additional notice shall be required with respect
to any action for which notice has been give under paragraph (c) for purposes
of indemnification. The Company and Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6.2 were determined
solely by pro rata allocation (even if Purchaser were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 6.2, the Purchaser shall not
be required to contribute any amount in excess of the amount by which the
Difference exceeds the amount of any damages that Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in paragraphs
(a) and (b) of this Section 6.2, including the amounts of any requested
reimbursement payments and the method of determining such amounts, shall be
settled by arbitration conducted under the provisions of the Judicial
Arbitration and Mediation Service (JAMS) and shall be held in San Francisco,
California. Any such arbitration must be commenced by service of a written
demand for arbitration or a written notice of intention to arbitrate, therein
electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of any arbitration tribunal in
such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation
of the interim reimbursement provisions contained in paragraphs (a) and (b)
of this Section 6.2 and would not resolve the ultimate propriety or
enforceability of the obligation to reimburse expenses which is created by
the provisions of such paragraphs (a) and (b).
7. MISCELLANEOUS.
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein and in the certificates for the securities delivered
pursuant hereto shall survive the execution of this Agreement, the delivery
to the Purchasers of the Shares being purchased and the payment therefor and
shall expire on the second anniversary of the date hereof.
7.2 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the State of
California and the United States of America, without regard to choice of law
rules.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, and permitted assigns of the parties hereto.
11.
7.4 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto,
and the other documents delivered pursuant hereto, constitutes the full and
entire understanding and agreement among the parties with regard to the
subjects hereof and no party shall be liable or bound to any other party in
any manner by any representations, warranties, covenants, or agreements
except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other
than the parties hereto and their respective successors and assigns, any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided herein.
7.5 SEVERABILITY. Whenever possible, each provision of the
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of the Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of the Agreement. In the event of such
invalidity, the parties shall seek to agree on an alternative enforceable
provision that preserves the original purpose of this Agreement.
7.6 AMENDMENT AND WAIVER. Except as otherwise provided herein,
any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of
time or indefinitely), with the written consent of the Company and Purchaser.
7.7 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
and received (a) upon personal delivery, (b) on the fifth day following
mailing by registered or certified mail, return receipt requested, postage
prepaid, addressed to the Company and Purchaser at their respective addresses
first above written, (c) upon transmission of telegram or facsimile (with
telephonic notice), or (d) upon confirmed delivery by overnight commercial
courier service.
7.8 FEES AND EXPENSES. The Company and the Purchaser shall bear
their own expenses and legal fees incurred on their behalf with respect to
this Agreement and the transactions contemplated hereby.
7.9 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
7.11 NASDAQ. The Company will promptly file a Notification of
Listing of Additional Shares with Nasdaq covering the Shares. The Company
agrees to take all action reasonable and necessary to maintain the listing of
its Common Stock on Nasdaq.
7.12 ACKNOWLEDGMENT OF PURCHASER REGARDING DOCUMENT DELIVERY.
Purchaser acknowledges that the Company, with Purchaser's consent, did not
deliver to Purchaser in paper format Exhibits B and C to this Agreement and
Exhibits A through D to the Private Placement Memorandum. Purchaser further
acknowledges that in lieu of such delivery, Purchaser has obtained such
documents from the SEC's web site at xxx.xxx.xxx.
12.
IN WITNESS WHEREOF, the foregoing Stock Purchase Agreement is hereby
executed as of the date first above written.
INHALE THERAPEUTIC SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title: Secretary and General Counsel
-------------------------------------
CAPITAL RESEARCH AND MANAGEMENT
COMPANY, ON BEHALF OF SMALLCAP WORLD
FUND, INC. AND AMERICAN VARIABLE
INSURANCE SERIES-GROWTH FUND
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
Title:
-------------------------------------
13.
APPENDIX I
INHALE THERAPEUTIC SYSTEMS
STOCK CERTIFICATE QUESTIONNAIRE
In connection with the Agreement, please provide us with the following
information:
1. The exact name that your Shares are to be ______________________________
registered in (this is the name that will
appear on your stock certificate(s)). You
may use a nominee name if appropriate:
2. The relationship between the Purchaser of ______________________________
the Shares and the Registered Holder
listed in response to item 1 above:
3. The mailing address of the Registered ______________________________
Holder listed in response to item 1 above: ______________________________
______________________________
______________________________
4. The Social Security Number or Tax ______________________________
Identification Number of the Registered
Holder listed in response to item 1 above:
APPENDIX I
INHALE THERAPEUTIC SYSTEMS
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
2. Please provide the number of shares that you or your organization will
own immediately after Closing, including those Shares purchased by you
or your organization pursuant to this Purchase Agreement and those
shares purchased by you or your organization through other transactions:
3. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates other than as disclosed in the Prospectus included in the
Registration Statement?
__________ Yes ___________ No
If yes, please indicate the nature of any such relationships below:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
