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EXHIBIT 10.42
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STOCK PURCHASE AGREEMENT
ARIAD Pharmaceuticals, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies & Gentlemen:
The undersigned, ________________________ (the "Investor"), hereby
confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of
___________, 1998 between ARIAD Pharmaceuticals, Inc., a Delaware corporation
(the "Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to
2,500,000 shares (the "Shares") of Common Stock of the Company, $.001 par value
per share (the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement conditioned upon
registration of the Shares for resale (the "Offering").
3. The Company and the Investor agree that the Investor will
purchase from the Company and the Company will sell to the Investors, for a
purchase price of $___________ per share, or an aggregate purchase price of
$_______________, ______________ Shares pursuant to the Terms and Conditions for
Purchase of Shares attached hereto as Annex I and incorporated herein by
reference as if fully set forth herein. Unless otherwise requested by the
Investor, certificates representing the shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a)
it has had no position, office or other material relationship within the past
three years with the Company or its affiliates, (b) neither it, nor any group of
which it is a member or to which it is related, beneficially owns (including the
right to acquire or vote) any securities of the Company and (c) it has no direct
or indirect affiliation or association with any NASD member. Exceptions:
________________________________________________________________________________
________________________________________________________________________________
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
INVESTOR
By: ________________________________________
Print Name: ________________________________
Title: _____________________________________
Address: ___________________________________
____________________________________________
Tax ID No.: ________________________________
Contact name: ______________________________
Telephone: _________________________________
Name in which shares should be
registered (if different): _________________
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AGREED AND ACCEPTED:
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ARIAD PHARMACEUTICALS, INC.
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By: Xxxxxx X. Xxxxxx, M.D.
Title: Chairman of the Board,
President and Chief Executive Officer
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. AUTHORIZATION AND SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
2,500,000 Shares. The Company reserves the right to increase or decrease this
number.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES; SUBSCRIPTION DATE.
2.1 At the Closing (as defined in Section 3), the Company
will sell to the Investor, and the Investor will purchase from the Company, upon
the terms and conditions hereinafter set forth, the number of Shares set forth
on the signature page hereto at the purchase price set forth on such signature
page.
2.2 The Company proposes to enter into this same form of
Stock Purchase Agreement with certain other investors (the "Other Investors")
and expects to complete sales of Shares to them. (The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the "Investors,"
and this Agreement and the Stock Purchase Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the
"Agreements.") The Company will accept executed Agreements from Investors for
the purchase of Shares commencing upon the date on which the Company provides
the Investors with the proposed purchase price per Share and concluding upon the
date (the "Subscription Date") on which the Company has (i) executed Agreements
with Investors for the purchase of at least 2,000,000 Shares, and (ii) notified
BancAmerica Xxxxxxxxx Xxxxxxxx (the "Placement Agent") in writing that it is no
longer accepting Agreements from Investors for the purchase of Shares. The
Company may not enter into any Agreements after the Subscription Date.
3. DELIVERY OF THE SHARES AT CLOSING. The completion of the
purchase and sale of the Shares (the "Closing") shall occur at a place and time
(the "Closing Date") to be specified by the Company and the Placement Agent, not
later than 90 days after the date the Registration Statement (as hereinafter
defined) is filed with the Securities and Exchange Commission (the "SEC") and of
which the Investors will be notified in advance by the Placement Agent. At the
Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of Shares set forth on the signature page
hereto, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor.
The Company's obligation to issue the Shares to the Investor shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the Shares
being purchased hereunder; (b) completion of the purchases and sales under the
Agreements with the Other Investors; and (c) the accuracy of the representations
and warranties made by the Investors and the fulfillment of those undertakings
of the Investors to be fulfilled prior to the Closing.
The Investor's obligation to purchase the Shares shall be subject to
the following conditions, any one or more of which may be waived by the
Investor: (a) Investors shall have executed Agreements for the purchase of at
least 2,000,000 Shares; (b) the Company shall have (i) filed a registration
statement (the "Registration Statement") within five (5) business days after the
Subscription Date, (ii) received an
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indication from the SEC that it has no further comments with respect to the
Registration Statement, and (iii) submitted an acceleration request providing
for the Registration Statement to be declared effective at a time immediately
following the Closing and on or prior to the 90th day after the date of its
filing; and (c) satisfaction of all of the conditions set forth in Section 6(b)
of the Placement Agency Agreement dated as of ________, 1998 between the Company
and the Placement Agent. The Investor's obligations hereunder are expressly not
conditioned on the purchase by any or all of the Other Investors of the Shares
that they have agreed to purchase from the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents and warrants to, and covenants with, the Investor, as
follows:
4.1. ORGANIZATION. Each of the Company and its
Subsidiaries (as defined in Rule 405 under the Securities Act of 1933, as
amended (the "Securities Act")), is duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization. Each of the
Company and its Subsidiaries has full power and authority to own, operate and
occupy its properties and to conduct its business as presently conducted and as
described in the private placement memorandum, dated __, 1998 distributed in
connection with the sale of the Shares (including the documents incorporated by
reference therein, the "Placement Memorandum") and is registered or qualified to
do business and in good standing in each jurisdiction listed on Schedule 4.1,
which schedule includes each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified would have a
material adverse effect upon the business, financial condition, properties or
operations of the Company and its Subsidiaries, considered as one enterprise,
and no proceeding has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification. The Company does not have any Subsidiaries nor does
it control, directly or indirectly, or own, directly or indirectly, any shares
of stock or any other equity interest of any corporation, partnership or limited
liability company, other than as disclosed in the Placement Memorandum.
4.2. DUE AUTHORIZATION. The Company has all requisite
power and authority to execute, deliver and perform its obligations under the
Agreements, and the Agreements have been duly authorized and validly executed
and delivered by the Company and constitute legal, valid and binding agreements
of the Company enforceable against the Company in accordance with their terms,
except as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.3. NON-CONTRAVENTION. The execution and delivery of the
Agreements, the issuance and sale of the Shares to be sold by the Company under
the Agreements, the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A) conflict with
or constitute a violation of, or default (with the passage of time or otherwise)
under, (i) any material bond, debenture, note or other evidence of indebtedness,
or under any material lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which the Company
or any Subsidiary is a party or by which it or any of its Subsidiaries or their
respective properties are bound, (ii) the charter, by-laws or other
organizational documents of the Company or any Subsidiary, or (iii) any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary or their respective properties, or (B) result in the creation or
imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or any
Subsidiary or an
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acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them is bound or to which any of the property or assets of the
Company or any Subsidiary is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, or other governmental body in the United States is
required for the execution and delivery of the Agreements and the valid issuance
and sale of the Shares to be sold pursuant to the Agreements, other than such as
have been made or obtained, and except for any securities filings required to be
made after the Closing under federal or state securities laws.
4.4. CAPITALIZATION. The capitalization of the Company as
of January 31, 1998 is as set forth in the Placement Memorandum. The Company has
not issued any capital stock since that date other than pursuant to (i)
outstanding warrants or options disclosed in the Placement Memorandum, (ii)
pursuant to employee benefit plans disclosed in the Placement Memorandum, or
(iii) pursuant to the 1997 HMR Genomics Agreement (as defined in the Placement
Memorandum). The Shares to be sold pursuant to the Agreements have been duly
authorized, and when issued and paid for in accordance with the terms of the
Agreements will be duly and validly issued, fully paid and nonassessable. The
outstanding shares of capital stock of the Company have been duly and validly
issued and are fully paid and nonassessable, have been issued in compliance with
all federal and state securities laws, and were not issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities.
Except as set forth in or contemplated by the Placement Memorandum, there are no
outstanding rights (including, without limitation, preemptive rights), warrants
or options to acquire, or instruments convertible into or exchangeable for, any
unissued shares of capital stock or other equity interest in the Company or any
Subsidiary, or any contract, commitment, agreement, understanding or arrangement
of any kind to which the Company is a party or of which the Company has
knowledge and relating to the issuance or sale of any capital stock of the
Company or any Subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options. The Company holds no shares of capital
stock in its Treasury. Without limiting the foregoing, no preemptive right,
co-sale right, registration right, right of first refusal or other similar right
exists with respect to the Shares or the issuance and sale thereof. No further
approval or authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the Shares. The
Company owns the entire equity interest in each of its Subsidiaries, free and
clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest, other than as described in the Placement Memorandum. Except as
disclosed in the Placement Memorandum, there are no stockholders agreements,
voting agreements or other similar agreements with respect to the Common Stock
or Series B Preferred Stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company's stockholders.
4.5. LEGAL PROCEEDINGS. There is no material legal or
governmental proceeding pending or, to the knowledge of the Company, threatened
or contemplated to which the Company or any Subsidiary is or may be a party or
of which the business or property of the Company or any Subsidiary is or may be
subject that is not disclosed in the Placement Memorandum.
4.6. NO VIOLATIONS. Neither the Company nor any Subsidiary
is in violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a material adverse effect on the business or financial
condition of the Company and its Subsidiaries, considered as one enterprise, or
is in default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of
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indebtedness in any indenture, mortgage, deed of trust or any other agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or by which the properties of the Company or
any Subsidiary are bound or affected, and there exists no condition which, with
the passage of time or otherwise, would constitute a material default under any
such document or instrument or result in the imposition of any material penalty
or the acceleration of any material indebtedness.
4.7. GOVERNMENTAL PERMITS, ETC. With the exception of the
matters which are dealt with separately in Section 4.1, 4.13, 4.14 and 4.21,
each of the Company and its Subsidiaries has all necessary franchises, licenses,
certificates and other authorizations from any foreign, federal, state or local
government or governmental agency, department, or body that are currently
necessary for the operation of the business of the Company and its Subsidiaries
as currently conducted and as described in the Placement Memorandum except where
the failure to currently possess could not reasonably be expected to have a
material adverse effect.
4.8. INTELLECTUAL PROPERTY. Subject to the matters
discussed under "Risk Factors" in the Placement Memorandum (i) each of the
Company and its Subsidiaries owns or possesses sufficient rights to use all
material patents, patent rights, trademarks, copyrights, licenses, inventions,
trade secrets, trade names and know-how (collectively, "Intellectual Property")
described or referred to in the Placement Memorandum as owned or used by it or
that are necessary for the conduct of its business as now conducted or (to the
Company's knowledge based on the current stage of development of the Company's
products) as proposed to be conducted as described in the Placement Memorandum
except where the failure to currently own or possess could not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its Subsidiaries considered as one enterprise, (ii) neither the Company nor
any of its Subsidiaries has received any notice of, or has any knowledge of, any
infringement of or conflict with asserted rights of the Company or any of its
Subsidiaries by others with respect to any Intellectual Property, except as
described in the Placement Memorandum and except as could not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its Subsidiaries considered as one enterprise, (iii) neither the Company nor
any of its Subsidiaries has received any notice of, or has any knowledge of, any
infringement of or conflict with asserted rights of a third party with respect
to any Intellectual Property that, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, operations, business of the Company and its
Subsidiaries considered as one enterprise.
4.9. FINANCIAL STATEMENTS. The financial statements of the
Company and the related notes contained in the Placement Memorandum present
fairly, in accordance with generally accepted accounting principles, the
financial position of the Company and its Subsidiaries as of the dates
indicated, and the results of its operations and cash flows for the periods
therein specified. Such financial statements (including the related notes) have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified, except
as disclosed in the Placement Memorandum. The other financial information
contained in the Placement Memorandum has been prepared on a basis consistent
with the financial statements of the Company.
4.10. NO MATERIAL ADVERSE CHANGE. Except as disclosed in
the Placement Memorandum, since December 31, 1997, there has not been (i) any
material adverse change in the financial condition or earnings of the Company
and its Subsidiaries considered as one enterprise nor has any material adverse
event occurred to the Company or its Subsidiaries, (ii) any material adverse
event affecting the
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Company, (iii) any obligation, direct or contingent, that is material to the
Company and its Subsidiaries considered as one enterprise, incurred by the
Company, except obligations incurred in the ordinary course of business, (iv)
any dividend or distribution of any kind declared, paid or made on the capital
stock of the Company or any of its Subsidiaries, or (v) any loss or damage
(whether or not insured) to the physical property of the Company or any of its
Subsidiaries which has been sustained which has a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company and its Subsidiaries considered as one enterprise.
4.11. DISCLOSURE. The information contained in the
Placement Memorandum as of the date of such information, did not contain an
untrue statement of a material fact or omit 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.
4.12 EXISTING AGREEMENTS AND PHYSICAL PROPERTY. Except as
set forth in the Placement Memorandum, the agreements to which the Company or
any of its Subsidiaries is a party and which are described in the Placement
Memorandum are valid agreements, enforceable by the Company, and its Subsidiary
(as applicable) except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles and, to the best of the Company's knowledge, the other contracting
party or parties thereto are not in material breach or material default under
any of such agreements. Except as set forth in the Placement Memorandum, the
Company owns or leases all such physical properties as are necessary to its
operations as now conducted.
4.13 REGULATORY COMPLIANCE. Except as described in the
Placement Memorandum and subject to the matters described under "Risk Factors"
in the Placement Memorandum, (i) the Company and its Subsidiaries have operated
and currently operate their businesses in conformity with all applicable laws,
rules and regulations of each jurisdiction in which they are conducting
business, including, without limitation, the United States Food and Drug
Administration (the "FDA"), except where the failure to be so in compliance
would not have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its Subsidiaries considered as one enterprise, (ii) the Company and its
Subsidiaries have all licenses, certificates, authorizations, approvals,
permits, franchises, orders and consents from all state, federal and other
governmental or regulatory authorities including, without limitation, the FDA,
which are necessary to the current conduct of their businesses, except where the
failure to be so in compliance would not have a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company and its Subsidiaries considered as one enterprise,
(iii) all of such licenses, certificates, authorizations, approvals, permits,
franchises, orders and consents are valid and in full force and effect, (iv) the
Company and its Subsidiaries have fulfilled and performed, and will fulfill and
perform, all of their obligations with respect to, and are operating in
compliance with, all such licenses, certificates, authorizations, approvals,
permits, franchises, orders and consents and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or result in any impairment of the rights of the holder thereof, except to the
extent that any such revocation, termination or impairment would not have a
material adverse effect on the financial condition, results of operations,
business or business prospects of the Company and its Subsidiaries considered as
one enterprise, (v) no such licenses, certificates, authorizations, approvals,
permits, franchises, orders or consents contain any restrictions that have or
could reasonably be expected to have a material adverse effect on the financial
condition, results of operations, business or business prospects of the Company
and its Subsidiaries considered as one enterprise, and (vi) the Company is not
aware of any existing or imminent matter which could reasonably be expected to
have an adverse impact on the current operations or business of the Company or
its Subsidiaries.
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4.14 NASDAQ COMPLIANCE. The Company's Common Stock is
registered pursuant to Section 12(g) of the Exchange Act and is listed on The
Nasdaq Stock Market, Inc. National Market (the "Nasdaq National Market"), and
the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
de-listing the Common Stock from the Nasdaq National Market, nor has the Company
received any notification that the SEC or the National Association of Securities
Dealers, Inc. ("NASD") is contemplating terminating such registration or
listing.
4.15 FOREIGN CORRUPT PRACTICES. Neither the Company nor
any of its Subsidiaries, nor, to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any of its
Subsidiaries, have (i) directly or indirectly, used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) failed to disclose
fully any contribution made by the Company or made by any person acting on its
behalf and of which the Company is aware in violation of law; (iv) violated in
any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended; or (v) made any unlawful bribe, rebate, payoff, influence, kick-back
or other unlawful payment.
4.16 NO MANIPULATION OF STOCK. The Company has not taken
and will not take, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
4.17 OSHA. The operations of the Company and its
Subsidiaries with respect to any real property currently leased, owned or by any
means controlled by the Company or any of its Subsidiaries (the "Real Property")
are in compliance with all federal, state, and local laws, ordinances, rules,
and regulations relating to occupational health and safety and the environment
except where failure to be in such compliance could not reasonably be expected
to have a material adverse effect; the Company and its Subsidiaries maintain all
licenses, permits and authorizations necessary to operate under all such laws
applicable to the Company and its Subsidiaries except where the failure to so
possess could not reasonably be expected to have a material adverse effect.
4.18 LOCK-UP AGREEMENTS. Lock-up Agreements or similar
agreement with the Placement Agent have been executed by each of the Company and
the Company's executive officers and directors providing that, subject to
certain exceptions, such entity or individual will not sell, offer, contract to
sell, pledge, grant any option to purchase or otherwise dispose of any shares of
the Company's Common Stock for a period ending 90 days after the Registration
Statement is declared effective.
4.19 ACCOUNTING CONTROLS. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) 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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4.20 LOANS TO DIRECTORS OR OFFICERS. There are no
outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business or except in documents that in the aggregate are not
material) or guarantees of indebtedness by the Company to or for the benefit of
any of the officers or directors of the Company or any of the members of the
families of any of them, except as disclosed in the Placement Memorandum.
4.21 COMPLIANCE WITH FLORIDA STATUTES. The Company has
complied with all provisions of Florida Statutes Section 517.075, and the
regulations thereunder, relating to doing business with the Government of Cuba
or with any person or affiliate located in Cuba.
4.22. REPORTING STATUS. The Company has filed in a timely
manner all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") during the 12 months
preceding the date of this Agreement. The following documents complied in all
material respects with the SEC's requirements as of their respective filing
dates, and the information contained therein as of the date thereof did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under where they were made not misleading:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997;
(b) The Company's proxy statement in connection with its
1997 Annual Meeting of Stockholders;
(c) all other documents, if any, filed by the Company
with the SEC since December 31, 1997 pursuant to the
reporting requirements of the Exchange Act.
4.23 LISTING. The Company shall comply with all
requirements of the National Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and the listing thereof on the Nasdaq
National Market.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
5.1 The Investor represents and warrants to, and
covenants with, the Company that: (i) the Investor is an "accredited investor"
as defined in Regulation D under the Securities Act and the Investor is also
knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company and investments in comparable companies, and
has requested, received, reviewed and considered all information it deemed
relevant in making an informed decision to purchase the Shares; (ii) the
Investor is acquiring the number of Shares set forth on the signature page
hereto in the ordinary course of its business and for its own account for
investment only and with no present intention of distributing any of such Shares
or any arrangement or understanding with any other persons regarding the
distribution of such Shares; (iii) the Investor 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, applicable state securities
laws and the respective rules and regulations promulgated thereunder; (iv) the
Investor has answered all questions on the signature page hereto for use in
preparation of the Registration Statement and the answers thereto are true and
correct as of the date hereof and will be
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true and correct as of the Closing Date; (v) the Investor will notify the
Company immediately of any change in any of such information until such time as
the Investor has sold all of its Shares or until the Company is no longer
required to keep the Registration Statement effective; and (vi) the Investor
has, in connection with its decision to purchase the number of Shares set forth
on the signature page hereto, relied only upon the Placement Memorandum and the
representations and warranties of the Company contained herein. Investor
understands that its acquisition of the Shares has not been registered under the
Securities Act or registered or qualified under any state securities law in
reliance on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of the Investor's, investment intent as
expressed herein. Investor has completed or caused to be completed and delivered
to the Company the Purchaser Questionnaire attached as Exhibit D to the
Placement Memorandum, which questionnaire is true and correct in all material
respects.
5.2 The Investor acknowledges, represents and agrees that
no action has been or will be taken in any jurisdiction outside the Untied
States by the Company or the Placement Agent that would permit an offering of
the Shares, or possession or distribution of offering materials in connection
with the issue of the Shares, in any jurisdiction outside the United States
where action for that purpose is required. Each Investor outside the United
States will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in
its possession or distributes any offering material, in all cases at its own
expense. The Placement Agent is not authorized to make any representation or use
any information in connection with the issue, placement, purchase and sale of
the Shares other than as contained in the Placement Memorandum.
5.3 The Investor hereby covenants with the Company not to
make any sale of the Shares without complying with the provisions of this
Agreement, including Section 7.2 hereof, and without effectively causing the
prospectus delivery requirement under the Securities Act to be satisfied, and
the Investor acknowledges that the certificates evidencing the Shares will be
imprinted with a legend that prohibits their transfer except in accordance
therewith. The Investor acknowledges that there may occasionally be times when
the Company, based on the advice of its counsel, determines that it must suspend
the use of the Prospectus forming a part of the Registration Statement until
such time as an amendment to the Registration Statement has been filed by the
Company and declared effective by the SEC or until the Company has amended or
supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and
covenants with, the Company that (i) the Investor has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii) this
Agreement constitutes a valid and binding obligation of the Investor enforceable
against the Investor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Investors
herein may be legally unenforceable.
5.5 Investor will not, prior to the effectiveness of the
Registration Statement, sell, offer to sell, solicit offers to buy, dispose of,
loan, pledge or grant any right with respect to (collectively, a "Disposition"),
the Common Stock of the Company, nor will Investor engage in any hedging or
other transaction which is designed to or could reasonably be expected to lead
to or result in a Disposition of Common Stock of the Company by the Investor or
any other person or entity. Such prohibited hedging or other transactions would
include without limitation effecting any short sale or having in effect any
short
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position (whether or not such sale or position is against the box and regardless
of when such position was entered into) or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to the
Common Stock of the Company or with respect to any security (other than a
broad-based market basket or index) that includes, relates to or derives any
significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the
Placement Memorandum, this Agreement or any other materials presented to the
Investor in connection with the purchase and sale of the Shares constitutes
legal, tax or investment advice. The Investor has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of Shares.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Investor herein shall survive the execution of this
Agreement, the delivery to the Investor of the Shares being purchased and the
payment therefor.
7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company
shall:
(a) subject to receipt of necessary information
from the Investors, prepare and file with the SEC, within five (5) business days
after the Subscription Date, the Registration Statement to enable the resale of
the Shares by the Investors from time to time through the automated quotation
system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of
necessary information from the Investors, to cause the Registration Statement to
become effective within 90 days after the Registration Statement is filed by the
Company;
(c) prepare and file with the SEC such amendments
and supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep the Registration Statement
current and effective for a period not exceeding, with respect to each
Investor's Shares purchased hereunder, the earlier of (i) the second anniversary
of the Closing Date, (ii) the date on which the Investor may sell all Shares
then held by the Investor without restriction by the volume limitations of Rule
144(e) of the Securities Act, or (iii) such time as all Shares purchased by such
Investor in this Offering have been sold pursuant to a registration statement.
(d) furnish to the Placement Agent and to the
Investor with respect to the Shares registered under the Registration Statement
such number of copies of Prospectuses and Preliminary Prospectuses in conformity
with the requirements of the Securities Act and such other documents as the
Investor may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Investor, provided, however, that
the obligation of the Company to deliver copies of Prospectuses or Preliminary
Prospectuses to the Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor will comply with the
applicable provisions of the Securities Act and of such other securities or blue
sky laws as may be applicable in connection with any use of such Prospectuses or
Preliminary Prospectuses;
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(e) file documents required of the Company for
normal blue sky clearance in states specified in writing by the Investor,
provided, however, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented;
(f) bear all expenses in connection with the
procedures in paragraph (a) through (e) of this Section 7.1 and the registration
of the Shares pursuant to the Registration Statement; and
(g) advise the Investors, promptly after it shall
receive notice or obtain knowledge of the issuance of any stop order by the SEC
delaying or suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued.
The Company understands that the Investor disclaims being an
underwriter, but the Investor being deemed an underwriter by the SEC shall not
relieve the Company of any obligations it has hereunder, PROVIDED, HOWEVER that
if the Company receives notification from the SEC that the Investor is deemed an
underwriter, then the period by which the Company is obligated to submit an
acceleration request to the SEC shall be extended to the earlier of (i) the 90th
day after such SEC notification, or (ii) 120 days after the initial filing of
the Registration Statement with the SEC.
7.2 TRANSFER OF SHARES AFTER REGISTRATION; SUSPENSION.
(a) The Investor agrees that it will not effect
any disposition of the Shares or its right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act except as
contemplated in the Registration Statement referred to in Section 7.1 and as
described below, and that it will promptly notify the Company of any changes in
the information set forth in the Registration Statement regarding the Investor
or its Plan of Distribution.
(b) Except in the event that paragraph (c) below
applies, the Company shall (i) if deemed necessary by the Company, prepare and
file from time to time with the SEC a post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit 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; (ii) provide the Investor copies of any documents
filed pursuant to Section 7.2(b)(i); and (iii) inform each Investor that the
Company has complied with its obligations in Section 7.2(b)(i) (or that, if the
Company has filed a post-effective amendment to the Registration Statement which
has not yet been declared effective, the Company will notify the Investor to
that effect, will use its best efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly notify the
Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become
effective).
(c) Subject to paragraph (d) below, in the event
(i) of any request by the SEC or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement for
amendments or supplements to a Registration Statement or related Prospectus or
for
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additional information; (ii) of the issuance by the SEC or any other federal
or state governmental authority of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose; (iii) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) of any event or circumstance which
necessitates the making of any changes in the Registration Statement or
Prospectus, or any document incorporated or deemed to be incorporated therein by
reference, so that, in the Registration Statement, it will not contain any
untrue statement of a material fact or any omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or any omission to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; then
the Company shall deliver a certificate in writing to the Investor (the
"Suspension Notice") to the effect of the foregoing and, upon receipt of such
Suspension Notice, the Investor will refrain from selling any Shares pursuant to
the Registration Statement (a "Suspension") until the Investor's receipt of
copies of a supplemented or amended Prospectus prepared and filed by the
Company, or until it is advised in writing by the Company that the current
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in any such Prospectus. In the event of any Suspension, the Company will use its
best efforts to cause the use of the Prospectus so suspended to be resumed as
soon as reasonably practicable within ten (10) business days after the delivery
of a Suspension Notice to the Investor. In addition to and without limiting any
other remedies (including, without limitation, at law or at equity), available
to the Investor, the Investor shall be entitled to specific performance in the
event that the Company fails to comply with the provisions of this Section
7.2(c).
(d) Notwithstanding the foregoing paragraphs of
this Section 7.2, the Investor shall not be prohibited from selling Shares under
the Registration Statement as a result of Suspensions on more than three (3)
occasions of not more than thirty (30) days each in any twelve month period,
unless, in the good faith judgment of the Company's Board of Directors, upon
advice of counsel, the sale of Shares under the Registration Statement in
reliance on this paragraph 7.2(d) would be reasonably likely to cause a
violation of the Securities Act or the Exchange Act and result in potential
liability to the Company.
(e) Provided that a Suspension is not then in
effect, the Investor may sell Shares under the Registration Statement, provided
that it arranges for delivery of a current Prospectus to the transferee of such
Shares. Upon receipt of a request therefor, the Company has agreed to provide an
adequate number of current Prospectuses to the Investor and to supply copies to
any other parties requiring such Prospectuses.
(f) In the event of a sale of Shares by the
Investor, the Investor must also deliver to the Company's transfer agent, with a
copy to the Company, a Certificate of Subsequent Sale substantially in the form
attached hereto as EXHIBIT A, so that the shares may be properly transferred.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" shall include the
Investor and any affiliate of such Investor;
(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 7.1; and
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(iii) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold
harmless each Selling Stockholder from and against any losses, claims, damages
or liabilities to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon (i) any untrue statement of a material fact contained in the
Registration Statement, or (ii) any failure by the Company to fulfill any
undertaking included in the Registration Statement, and the Company will
reimburse such Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, or preparing to defend any such action, proceeding
or claim, PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of, or
is based upon, an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in
preparation of the Registration Statement or the failure of such Selling
Stockholder to comply with its covenants and agreements contained in Sections
5.3 or 7.2 hereof respecting sale of the Shares or any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was delivered
to the Investor prior to the pertinent sale or sales by the Investor.
(b) The Investor agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, (i) any failure to comply with the covenants and agreements
contained in Section 5.3 or 7.2 hereof respecting sale of the Shares, or (ii)
any untrue statement of a material fact contained in the Registration Statement
if such untrue statement was made in reliance upon and in conformity with
written information furnished by or on behalf of the Investor specifically for
use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as the
case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim.
(c) Promptly after receipt by any indemnified
person of a notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 7.3, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action, but the omission to
so notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party under this Section 7.3 (except to the extent
that such omission materially and adversely affects the indemnifying party's
ability to defend such action) or from any liability otherwise than under this
Section 7.3. Subject to the provisions hereinafter stated, in case any such
action shall be brought against an indemnified person, the indemnifying person
shall be entitled to participate therein, and, to the extent that it shall elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such indemnified person of
its election to assume the defense
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thereof, such indemnifying person shall not be liable to such indemnified person
for any legal expenses subsequently incurred by such indemnified person in
connection with the defense thereof, PROVIDED, HOWEVER, that if there exists or
shall exist a conflict of interest that would make it inappropriate, in the
opinion of counsel to the indemnified person, for the same counsel to represent
both the indemnified person and such indemnifying person or any affiliate or
associate thereof, the indemnified person shall be entitled to retain its own
counsel at the expense of such indemnifying person; provided, however, that no
indemnifying person shall be responsible for the fees and expenses of more than
one separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement; PROVIDED that such
consent shall not be unreasonably withheld. No indemnifying person shall,
without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this
Section 7.3 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Investors
on the other in connection with the statements or omissions or other matters
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, in the
case of an untrue statement, whether the untrue statement relates to information
supplied by the Company on the one hand or an Investor on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement. The Company and the Investors agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Investors
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in 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 any such action
or claim. Notwithstanding the provisions of this subsection (d), no Investor
shall be required to contribute any amount in excess of the amount by which the
net amount received by the Investor from the sale of the Shares to which such
loss relates exceeds the amount of any damages which such Investor has otherwise
been required to pay by reason of such untrue statement. 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. The Investors' obligations in this
subsection to contribute are several in proportion to their sales of Shares to
which such loss relates and not joint.
(e) The parties to this Agreement hereby
acknowledge that they are sophisticated business persons who were represented by
counsel during the negotiations regarding the provisions hereof including,
without limitation, the provisions of this Section 7.3, and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 7.3 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement as required by the Act and the
Exchange
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Act. The parties are advised that federal or state public policy as interpreted
by the courts in certain jurisdictions, may be contrary to certain of the
provisions of this Section 7.3, and the parties hereto hereby expressly waive
and relinquish any right or ability to assert such public policy as a defense to
a claim under this Section 7.3 and further agree not to attempt to assert any
such defense.
7.5 TERMINATION OF CONDITIONS AND OBLIGATIONS. The
conditions precedent imposed by Section 5 or this Section 7 upon the
transferability of the Shares shall cease and terminate as to any particular
number of the Shares when such Shares shall have been effectively registered
under the Securities Act and sold or otherwise disposed of in accordance with
the intended method of disposition set forth in the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory to
the Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act.
7.6 INFORMATION AVAILABLE. So long as the Registration
Statement is effective covering the resale of Shares owned by the Investor, the
Company will furnish to the Investor:
(a) as soon as practicable after available, one
copy of (i) its Annual Reports to Stockholders (which Annual Reports shall
contain financial statements audited in accordance with generally accepted
accounting principles by a national firm of certified public accountants), (ii)
if not included in substance in the Annual Reports to Stockholders, its Annual
Reports on Form 10-K, (iii) its Quarterly Reports on Form 10-Q, and (iv) a full
copy of the particular Registration Statement covering the Shares (the
foregoing, in each case, excluding exhibits);
(b) upon the reasonable request of the Investor,
all exhibits excluded by the parenthetical to subparagraph (a)(iv) of this
Section 7.6 as filed with the SEC and all other information that is made
available to stockholders; and
(c) upon the reasonable request of the Investor,
an adequate number of copies of the Prospectuses to supply to any other party
requiring such Prospectuses; and the Company, upon the reasonable request of the
Investor, will meet with the Investor or a representative thereof at the
Company's headquarters to discuss all information relevant for disclosure in the
Registration Statement covering the Shares and will otherwise cooperate with any
Investor conducting an investigation for the purpose of reducing or eliminating
such Investor's exposure to liability under the Securities Act, including the
reasonable production of information at the Company's headquarters; provided,
that the Company shall not be required to disclose any confidential information
to or meet at its headquarters with any Investor until and unless the Investor
shall have entered into a confidentiality agreement in form and substance
reasonably satisfactory to the Company with the Company with respect thereto.
8. PLACEMENT AGENT'S FEE. The Investor acknowledges that the
Company intends to pay to the Placement Agent a fee in respect of the sale of
the Shares to the Investor.
9. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed (A) if within
domestic United States by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by International
Federal Express or facsimile, and shall be deemed given (i) if delivered by
first class registered or certified mail domestic, three business days after so
mailed, (ii) if delivered by nationally recognized overnight carrier, one
business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed, (iv) if delivered by facsimile, upon
electric confirmation of receipt and shall be delivered as addressed as follows:
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(a) if to the Company, to:
ARIAD Pharmaceuticals, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx X. XxXxxxxx
Phone: 000-000-0000
Telecopy: 000-000-0000
(b) with a copy mailed to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxx
Phone: 000-000-0000
Telecopy: 617-542-2241
(c) if to the Investor, at its address on the signature
page hereto, or at such other address or addresses as
may have been furnished to the Company in writing.
10. CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
11. HEADINGS. The headings of the various section of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
12. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of California,
without giving effect to the principles of conflicts of law.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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EXHIBIT A
CERTIFICATE OF SUBSEQUENT SALE
[NAME OF TRANSFER AGENT]
[ADDRESS OF TRANSFER AGENT]
[CONTACT PERSON AT TRANSFER AGENT]
RE: Sale of Shares of Common Stock of ARIAD Pharmaceuticals,
Inc. (the "Company") pursuant to the Company's
Prospectus dated ___________ , 1998 (the "Prospectus")
--------------------------------------------------------
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares
of Common Stock of the Company included in the table of Selling Stockholders in
the Prospectus, that the undersigned has sold the Shares pursuant to the
Prospectus and in a manner described under the caption "Plan of Distribution" in
the Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner): ____________________________________
Record Holder (e.g., if held in name of nominee): ______________________________
Restricted Stock Certificate No.(s): ___________________________________________
Number of Shares Sold: _________________________________________________________
Date of Sale: __________________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: ______________________________ ________________________________________
By: ____________________________________
Print Name: ____________________________
Title: _________________________________
cc: Xxx X. XxXxxxxx
ARIAD Pharmaceuticals, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
19
INSTRUCTION SHEET FOR INVESTOR
(to be read in conjunction with the entire Stock Purchase Agreement)
A. Complete the following items in the Stock Purchase Agreement:
1. Provide the information regarding the Investor requested on
the signature page (page 1). The Agreement must be executed by
an individual authorized to bind the Investor.
2. Return the signed Stock Purchase Agreement to:
Xxxxx X. Xxxxxxxxx
BancAmerica Xxxxxxxxx Xxxxxxx s
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
An executed original Purchase Agreement or a telecopy thereof
must be received by 5:00 p.m. California time on a date to be determined and
distributed to the Investor at a later date.
B. Instructions regarding the transfer of funds for the purchase of Shares
will be telecopied to the Investor by the Placement Agent at a later
date.
C. To resell the Shares after the Registration Statement covering the
Shares is effective:
(i) Provided that a Suspension of the Registration
Statement is not then in effect pursuant to the terms of the Stock Purchase
Agreement, the investor may sell Shares under the Registration Statement,
provided that it arranges for delivery of a current Prospectus to the
transferee. Upon receipt of a request therefor, the Company has agreed to
provide an adequate number of current Prospectuses to each investor and to
supply copies to any other parties requiring such Prospectuses.
(ii) The Investor must also deliver to the Company's
transfer agent, with a copy to the Company, a Certificate of Subsequent Sale in
the form attached as Exhibit A to the Stock Purchase Agreement, so that the
shares may be properly transferred.
