Exhibit No. 99
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of the 28th day
of January, 2000, by and among Trimeris, Inc., a Delaware corporation (the
"Company"), and the purchaser whose name and address is set forth on the
signature page hereof (the "Investor").
1. Authorization and Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the issuance and sale
of up to 1,750,000 shares (the "Shares") of the common stock, par value $.001
per share (the "Common Stock"), of the Company to certain investors in a private
placement (the "Offering"). The Company reserves the right to increase or
decrease the number of Shares offered and sold in the Offering prior to the
Closing Date (as defined below).
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 At the Closing (as defined in Section 3 hereof), 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. If the Closing Date has not occurred, the Company's obligation to sell and
the Investor's obligation to purchase the Shares will expire on February 15,
2000.
2.2 The Company proposes to enter into this same form of 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 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 notified Deutsche Bank Securities Inc. (in its capacity as
Placement Agent for the Shares, the "Placement Agent") in writing that it is no
longer accepting Agreements from Investors for the purchase of Shares.
2.3 Investor acknowledges that the Company intends to pay the Placement
Agent a fee in respect of the sale of Shares to the Investor.
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, and of which the
Investors will be notified in advance by the Placement Agent. At the Closing,
each Investor shall make payment for the Shares to the Company or its order by
wire transfer of federal funds to the account specified by the Company. Such
payment shall be made upon delivery of certificates for the Shares to the
respective accounts of the Investors 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 the purchase price for the Shares being purchased
hereunder as set forth on the signature page hereto; (b) completion
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of purchases and sales in an aggregate amount of not less than 1,000,000 Shares
under this Agreement and 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
accuracy of the representations and warranties made by the Company and the
fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing. The Investor's obligations 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. The Company is duly incorporated and validly existing and
in good standing under the laws of the jurisdiction of its organization. The
Company 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
Exchange Act Documents (as defined below) and is registered or qualified to do
business and in good standing in 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 ("Material Adverse Effect"), 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.
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 any
material lease, contract, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which the Company is a party
or by which it or its properties are bound, (ii) the charter, by-laws or other
organizational documents of the Company, or (iii) any law, administrative
regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority binding upon the Company or its properties, where such
conflict, violation or default is likely to result in a Material Adverse Effect,
or (B) result in the creation or imposition of any material lien, encumbrance,
claim, security interest or restriction whatsoever upon any of the material
properties or assets of the Company or a material acceleration of indebtedness
pursuant to any obligation, agreement or condition contained in any material
bond, debenture, note or any other material evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other material agreement or
instrument to which the Company is a party or by which any of them is bound or
to which any of the material property or assets of the Company 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,
except for any securities filings required to be made under
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federal or state securities laws, and except where any failure to obtain any of
the foregoing would not have a Material Adverse Effect.
4.4 Capitalization. The capitalization of the Company as of January 25,
2000 is as follows (excluding unvested options and treasury shares): preferred
stock, $.001 par value, 10,000,000 shares authorized, no shares issued and
outstanding; Common Stock, 30,000,000 shares authorized, 13,782,071 shares
issued and outstanding; 1,696,382 shares of Common Stock reserved for issuance
pursuant to outstanding stock options; 502,044 shares of Common Stock reserved
for future issuance under the Company's stock option plan and stock purchase
plan; and 373,734 shares of Common Stock reserved for issuance pursuant to
outstanding warrants. The Company has not issued any capital stock since that
date other than pursuant to the Company's employee benefit plans. 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 Exchange Act Documents, 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
contract, commitment, agreement, understanding or arrangement of any kind to
which the Company is a party and relating to the issuance or sale of any capital
stock of the Company, any such convertible or exchangeable securities or any
such rights, warrants or options. Without limiting the foregoing and other than
certain registration rights previously granted by the Company to certain Company
shareholders which may (under certain circumstances) delay the registration of
the Investors' Shares, no preemptive right, co-sale right, right of first
refusal or other similar right exists with respect to the issuance and sale of
the Shares. The Company has no subsidiaries (as defined in Rule 405 under the
Securities Act of 1933, as amended (the "Securities Act")) and does not own,
directly or indirectly, any equity interest in any firm, partnership, joint
venture, association or other entity. Except as disclosed in the Exchange Act
Documents, there are no stockholders agreements, voting agreements or other
similar agreements with respect to the Common Stock to which the Company is a
party.
4.5 Legal Proceedings. There is no material legal or governmental
proceeding pending to which the Company or any Subsidiary is a party or of which
the business or property of the Company is subject that is not disclosed in the
Exchange Act Documents.
4.6 No Violations. The Company is not 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, which violation, individually or
in the aggregate, would be reasonably likely to have a Material Adverse Effect,
or is in default (and there exists no condition which, with the passage of time
or otherwise, would constitute a default) in the performance of any material
bond, debenture, note or any other evidence of indebtedness, or in any
indenture, mortgage, deed of trust or any other material agreement or instrument
to which the Company is a party or by which the Company is bound or by which its
properties are bound, which would be reasonably likely to have a Material
Adverse Effect.
4.7 Governmental Permits, Etc. The Company 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 as
currently conducted except where the failure to currently possess could not
reasonably be expected to have a Material Adverse Effect.
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4.8 Intellectual Property. Except as set forth in the Company's Form 10-Q
for the quarter ended March 31, 1999 under the caption "Risk Factors -- There is
uncertainty regarding patents and proprietary rights,"
(a) The Company has exclusive ownership or a valid license to use all
patent, copyright, trade secret, trademark or other proprietary rights that are
used in the business of the Company and are material to the Company
(collectively, "Intellectual Property"). All of such material patents,
registered trademarks and registered copyrights have been duly registered in,
filed in or issued by the United States Patent and Trademark Office, the United
States Register of Copyrights or the corresponding offices of other
jurisdictions and have been maintained and renewed in accordance with all
applicable provisions of law and administrative regulations in the United States
and all such jurisdictions.
(b) All material licenses or other material agreements under which
(i) the Company is granted rights in Intellectual Property and (ii) the Company
has granted rights to others in Intellectual Property owned or licensed by the
Company, are in full force and effect and there is no material default by the
Company thereto.
(c) No proceedings have been instituted or are pending which challenge
in a material manner the rights of the Company in respect to the Company's right
to the use of the Intellectual Property. The Company has the right to use, free
and clear of material claims or rights of other persons, all of its customer
lists, designs, computer software, systems, data compilations, and other
information that are required for its products or its business as presently
conducted.
(d) The Company believes it has taken such reasonable steps as are
required in accordance with sound business practice and business judgment to
establish and preserve its ownership of all material copyright, trade secret and
other proprietary rights with respect to its products and technology.
(e) To the knowledge of the Company, the present business, activities and
products of the Company do not infringe any intellectual property of any other
person, except where such infringement would not have a Material Adverse Effect
on the Company. No material proceeding charging the Company with infringement of
any adversely held Intellectual Property has been filed. To the Company's
knowledge, there exists no third party unexpired patent or patent application
which includes claims that would be infringed by, or otherwise have a Material
Adverse Effect on the business activities or products of the Company. To the
knowledge of the Company, the Company is not making unauthorized use of any
material confidential information or trade secrets of any third party. To the
Company's knowledge, the activities of the Company or any of its employees on
behalf of the Company do not violate any material agreements or arrangements
known to the Company which any such employees have with other persons, if any.
4.9 Financial Statements. The financial statements of the Company and the
related notes contained in the Exchange Act Documents present fairly, in
accordance with generally accepted accounting principles, the financial position
of the Company 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 may be disclosed in the Exchange Act
Documents.
4.10 No Material Adverse Change. Since September 30, 1999, (i) there has not
been any Material Adverse Effect affecting the Company, (ii) any obligation,
direct or contingent, that is material to the Company, incurred by the Company,
except obligations incurred in the ordinary course of business, (iii) any
dividend or distribution of any kind declared, paid or made on the capital stock
of the Company, or (iv) any loss or damage (whether or not insured) to the
physical property of the Company which has been sustained which has a Material
Adverse Effect.
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4.11 Disclosure. The information contained in the Exchange Act Documents 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 Nasdaq Compliance. The Company's Common Stock is registered pursuant to
Section 12(g) of the Exchange Act (as defined in Section 4.13) and is listed on
the Nasdaq National Market of the Nasdaq Stock Market (the "Nasdaq Stock
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 Stock Market, nor has the
Company received any notification that the Securities and Exchange Commission
(the "SEC") or the National Association of Securities Dealers, Inc. ("NASD") is
contemplating terminating such registration or listing.
4.13 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) Quarterly Report on Form 10-Q for the Quarter Ended September
30, 1999, filed with the SEC on November 15, 1999;
(b) Quarterly Report on Form 10-Q for the Quarter Ended June 30,
1999, filed with the SEC on August 13, 1999;
(c) Quarterly Report on Form 10-Q for the Quarter Ended March 31,
1999, filed with the SEC on May 17, 1999;
(d) Annual Report on Form 10-K for the Year Ended December 31,
1998, filed with the SEC on March 31, 1999;
(e) Definitive Proxy Statement filed with the SEC on April 30,
1999; and
(f) All other documents, if any, filed by the Company with the SEC
since December 31, 1998 pursuant to the reporting requirements
of the Exchange Act (collectively, the "Exchange Act
Documents").
4.14 Listing. The Company shall use its reasonable best efforts to comply
with all requirements of the NASD with respect to the issuance of the Shares and
the listing thereof on the Nasdaq Stock Market.
4.15 No Manipulation of Stock. The Company has not taken and will not, in
violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in manipulation of the price of the
Common Stock to facilitate the sale or resale of the Shares.
4.16 Accountants. KPMG LLP, who the Company expects will express their
opinion with respect to the financial statements to be incorporated by reference
from the Company's Annual Report on Form 10-K for the year ended December 31,
1999 into the Registration Statement (as defined below) and the Prospectus which
forms a part thereof, are independent accountants as required by the Securities
Act and the rules and regulations promulgated thereunder (the "Rules and
Regulations").
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4.17 Contracts. The contracts described in the Exchange Act Documents or
incorporated by reference therein that are material to the Company are in full
force and effect on the date hereof, and neither the Company nor, to the
Company's knowledge, any other party to such contracts is in breach of or
default under any of such contracts which would have a Material Adverse Effect.
4.18 Properties. The Company has good and marketable title to all the
properties and assets reflected as owned by it in the financial statements
included in or incorporated by reference into the Exchange Act Documents,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
(i) those, if any, reflected in such financial statements, (ii) those of the
United States Government to exercise rights with respect to inventions made with
Government support, or (iii) those which are not material in amount and do not
adversely affect the use made and promised to be made of such property by the
Company. The Company holds its leased properties under valid and binding leases,
with such exceptions as are not materially significant in relation to their
respective businesses. Except as disclosed in the Exchange Act Documents, the
Company owns or leases all such properties as are necessary to its operations as
now conducted.
4.19 Taxes. The Company has filed all necessary federal, state and foreign
income and franchise tax returns and has paid or accrued all taxes shown as due
thereon, and the Company has no knowledge of a tax deficiency which has been or
might be asserted or threatened against it which would have a Material Adverse
Effect.
4.20 Transfer Taxes. On the Closing Date, all stock transfer or other taxes
(other than income taxes) which are required to be paid in connection with the
sale and transfer of the Shares to be sold to the Investor hereunder will be, or
will have been, fully paid or provided for by the Company and all laws imposing
such taxes will be or will have been fully complied with.
4.21 Investment Company. The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for an
investment company, within the meaning of the Investment Company Act of 1940, as
amended.
4.22 Offering Materials. Other than the Exchange Act Documents and the press
release dated January 28, 2000 relating to the clinical progress of the
Company's investigational drugs (the "Offering Materials"), the Company has not
distributed and will not distribute prior to the Closing Date any offering
material in connection with the offering and sale of the Shares. The Company has
not in the past nor will it hereafter take any action independent of the
Placement Agent to sell, offer for sale or solicit offers to buy any securities
of the Company which would bring the offer, issuance or sale of the Shares, as
contemplated by this Agreement, within the provisions of Section 5 of the
Securities Act, unless such offer, issuance or sale was or shall be within the
exemptions of Section 4 of the Securities Act.
4.23 Insurance. The Company maintains and will continue to maintain
insurance of the types and in the amounts that the Company reasonably believes
is adequate for its business, including, but not limited to, insurance covering
all real and personal property owned or leased by the Company against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against by similarly situated companies, all of which insurance is in full force
and effect.
4.24 Contributions. The Company has not at any time since its incorporation,
directly or indirectly, (i) made any unlawful contribution to any candidate for
public office, or failed to disclose fully any contribution in violation of law,
or (ii) made any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
4.25 Legal Opinion. The Company shall cause to be delivered to the Investors
and the Placement Agent by counsel to the Company a customary legal opinion
pertaining to Rule 10b-5 under the
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Securities Exchange Act of 1934 and to the availability of an exemption from the
registration provisions of the Securities Act.
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 and no arrangement
or understanding exists with any other person 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 (as defined in Section 7.1) and the answers thereto are
true and correct as of the date hereof and will be 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 Offering Materials 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 Investor
Questionnaire attached as Exhibit A hereto, 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 United 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 Offering Materials.
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.
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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 Shares
if doing so would be in violation of applicable securities laws, 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 the Shares
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 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 Shares or with respect to any security (other
than a broad-based market basket or index) that includes or derives any
significant part of its value from the Shares.
5.6 The Investor understands that nothing in 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) prepare and file with the SEC, within 30 days after the Closing Date, a
registration statement on Form S-3 (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 Stock Market or in
privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary
information from the Investors, to cause the Registration Statement to
become effective as soon as practicable, but in no event later than 120 days
after the Closing Date;
(c) use its reasonable best efforts to 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;
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(d) furnish to the Investor with respect to the Shares registered under the
Registration Statement such number of copies of the Registration Statement,
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;
(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 of any proceeding for that purpose; and it will promptly use its
reasonable 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.
(h) With a view to making available to the Investor the benefits of Rule 144
(or its successor rule) and any other rule or regulation of the SEC that may
at any time permit the Investor to sell Shares to the public without
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule
144, until the earlier of (A) such date as all of the Investor's Shares may
be resold pursuant to Rule 144(k) or any other rule of similar effect or (B)
such date as all of the Investor's Shares shall have been resold; (ii) file
with the SEC in a timely manner all reports and other documents required of
the Company under the Securities Act and under the Exchange Act; and (iii)
furnish to the Investor upon request, as long as the Investor owns any
Shares, (A) a written statement by the Company that it has complied with the
reporting requirements of the Securities Act and the Exchange Act, (B) a
copy of the Company's most recent Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, and (C) such other information as may be reasonably
requested in order to avail the Investor of any rule or regulation of the
SEC that permits the selling of any such Shares without registration.
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) 150 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.
10
(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 reasonable 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 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 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 case of 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 reasonable efforts to cause the use of the Prospectus so suspended
to be resumed as soon as reasonably practicable.
(d) 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 (or arranges for
delivery of such to the transferee's broker). Upon receipt of a written 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.
(e) 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 as Exhibit B
hereto, 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 officer, director, each
person who controls such Investor within the meaning of Section 15 of the
Securities Act, or affiliate of such Investor; (ii) the term "Registration
Statement"
11
shall include any final Prospectus, exhibit, supplement or amendment included in
or relating to the Registration Statement referred to in Section 7.1; and (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; 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 or the failure of such Selling Stockholder to comply with its
covenants and agreements contained in Sections 5 or 7.2 hereof 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 severally 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 Sections 5 or 7.2 hereof, 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, 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 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 reasonable 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 12
retain its own counsel at the reasonable 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 gross
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 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.
7.4 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
13
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.
8. 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:
(a) if to the Company, to:
Trimeris, Inc.
4727 University Drive, Suite 100
Durham, North Carolina 27707
Attn: Dr. Dani P. Bolognesi
Phone: 919-419-6050
Telecopy: 919-419-1816
(b) with a copy mailed to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: John B. Watkins, Esq.
Phone: 202-663-6000
Telecopy: 202-663-6363
(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 in accordance with this Section 8.
9. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11. 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.
12. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to any
choice of law provisions thereof, and the federal law of the United States of
America.
13. 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.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly-authorized representatives shown below.
______________________________________________
"INVESTOR"
By: __________________________________________
Print Name: __________________________________
Title: _______________________________________
Address: _____________________________________
______________________________________________
Number of Shares: ____________________________
Aggregate Purchase Price $____________________
Tax ID No.: __________________________________
Contact name: ________________________________
Telephone: ___________________________________
Name in which shares should be
registered (if different): ___________________
Accepted and Agreed to by :
TRIMERIS, INC.
By: ____________________
Title: ____________________
Date: ____________________
15
Exhibit A
---------
TRIMERIS, INC.
INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: Trimeris, Inc.
This Investor Questionnaire ("Questionnaire") must be completed by each
potential investor in connection with the offer and sale of the shares of the
common stock, par value $.001 per share, of Trimeris, Inc. (the "Shares"). The
Shares are being offered and sold by Trimeris, Inc. (the "Company") without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and the securities laws of certain states, in reliance on the exemptions
contained in Section 4(2) of the Securities Act and on Regulation D promulgated
thereunder and in reliance on similar exemptions under applicable state laws.
The Company must determine that a potential investor meets certain suitability
requirements before offering or selling Shares to such investor. The purpose of
this Questionnaire is to assure the Company that each investor will meet the
applicable suitability requirements. The information supplied by you will be
used in determining whether you meet such criteria, and reliance upon the
private offering exemptions from registration is based in part on the
information herein supplied.
This Questionnaire does not constitute an offer to sell or a solicitation of an
offer to buy any security. Your answers will be kept strictly confidential.
However, by signing this Questionnaire, you will be authorizing the Company to
provide a completed copy of this Questionnaire to such parties as the Company
deems appropriate in order to ensure that the offer and sale of the Shares will
not result in a violation of the Securities Act or the securities laws of any
state and that you otherwise satisfy the suitability standards applicable to
purchasers of the Shares. All potential investors must answer all applicable
questions and complete, date and sign this Questionnaire. Please print or type
your responses and attach additional sheets of paper if necessary to complete
your answers to any item.
A. BACKGROUND INFORMATION
----------------------
Name:___________________________________________________________________________
Business Address:_______________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number: (___) ________________________________________________________
Residence Address:______________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number: (___) ________________________________________________________
If an individual:
Age: __________ Citizenship: ___________ Where registered to vote: ___________
If a corporation, partnership, limited liability company, trust or other entity:
Type of entity:_________________________________________________________________
1
State of formation:______________________ Date of formation: _________________
Social Security or Taxpayer Identification No.__________________________________
Send all correspondence to (check one):___Residence Address ___Business Address
B. STATUS AS ACCREDITED INVESTOR
-----------------------------
The undersigned is an "accredited investor" as such term is defined in
Regulation D under the Securities Act, as at the time of the sale of the Shares
the undersigned falls within one or more of the following categories (Please
initial one or more, as applicable): 1
____ (1) a bank as defined in Section 3(a)(2) of the Securities Act, or a
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section 2(a)(48) of
that Act; a Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; an employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974, if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with the investment decisions made
solely by persons that are accredited investors;
____ (2) a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
____ (3) an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of acquiring the
Shares offered, with total assets in excess of $5,000,000;
____ (4) a natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of such person's purchase of the Shares
exceeds $1,000,000;
____ (5) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
____________________
1. As used in this Questionnaire, the term "net worth" means the excess of
total liabilities.
2
____ (6) a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the Shares offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of
Regulation D; and
____ (7) an entity in which all of the equity owners are accredited
investors (as defined above).
C. REPRESENTATIONS
---------------
The undersigned hereby represents and warrants to the Company as follows:
1. Any purchase of the Shares would be solely for the account of the
undersigned and not for the account of any other person or with a view to any
resale, fractionalization, division, or distribution thereof.
2. The information contained herein is complete and accurate and may be
relied upon by the Company, and the undersigned will notify the Company
immediately of any material change in any of such information occurring prior to
the closing, if any, with respect to the purchase of Shares by the undersigned
or any co-purchaser.
3. There are no suits, pending litigation, or claims against the
undersigned that could materially affect the net worth of the undersigned as
reported in this Questionnaire.
4. The undersigned 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 (as such
terms are defined in the Purchase Agreement to which this Questionnaire is
attached) until such time as an amendment to the Registration Statement has been
filed by the Company and declared effective by the Securities and Exchange
Commission or until the Company has amended or supplemented such Prospectus. The
undersigned is aware that, in such event, the Shares will not be subject to
ready liquidation, and that any Shares purchased by the undersigned would have
to be held during such suspension. The overall commitment of the undersigned to
investments which are not readily marketable is not excessive in view of the
undersigned's net worth and financial circumstances, and any purchase of the
Shares will not cause such commitment to become excessive. The undersigned is
able to bear the economic risk of an investment in the Shares.
5. In addition to reviewing the Offering Materials (as defined in the
Purchase Agreement to which this Questionnaire is attached), the undersigned has
carefully considered the potential risks relating to the Company and a purchase
of the Shares, and fully understands that the Shares are speculative investments
which involve a high degree of risk of loss of the undersigned's entire
investment. Among others, the undersigned has carefully considered each of the
risks described in the Offering Materials.
6. Except as set forth below, (a) the undersigned has had no position,
office or other material relationship currently or 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.")
3
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire this ____
day of January, 2000, and declares under oath that it is truthful and correct.
_____________________________________________
Print Name
By: _________________________________________
Signature
Title: ______________________________________
(required for any purchaser that is
a corporation, partnership, trust or
other entity)
4
Exhibit B
---------
CERTIFICATE OF SUBSEQUENT SALE
------------------------------
[Transfer Agent]
RE: Sale of Shares of Common Stock of Trimeris, Inc. (the
"Company") pursuant to the Company's Prospectus dated
__________, 2000 (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 Shareholders 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 Shareholder (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: Chief Financial Officer
Trimeris, Inc.
4727 University Drive, Suite 100
Durham, North Carolina 27707
5