Exhibit 10.1
Date:
To: Trimeris, Inc. ("Party B")
Attention:
From:
Re: Equity Option Confirmation
Reference Number:
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The purpose of this communication is to confirm the terms and conditions of the
call option (the "Transaction") entered into between us on the Trade Date
specified below. This communication constitutes a "Confirmation" as referred to
in the Master Agreement specified below.
The definitions and provisions contained in the 1996 ISDA Equity Derivatives
Definitions (the "Equity Definitions"), as published by the International Swaps
and Derivatives Association, Inc. ("ISDA") are incorporated into this
Confirmation. In the event of any inconsistency between those definitions and
provisions and this Confirmation, this Confirmation will govern.
This Confirmation evidences a complete binding agreement between you and us as
to the terms of the Transaction to which this Confirmation relates. In addition,
you and we agree to use all reasonable efforts promptly to negotiate, execute
and deliver an agreement in the form of the ISDA Master Agreement
(Multicurrency-Cross Border) (the "ISDA Form"), with such modifications as you
and we will in good faith agree. Until such time as we execute and deliver the
ISDA Form, this Confirmation, together with all other documents referring to the
ISDA Form (each a "Confirmation"), shall supplement, form a part of, and be
subject to an agreement in the form of the ISDA Form as if we had executed an
agreement in such form (but without any Schedule) on the Trade Date of the first
such Transaction between us. In the event of any inconsistency between the
provisions of the ISDA Form and this Confirmation, this Confirmation will
prevail for the purpose of this Transaction. Upon the execution by you and us of
an agreement in the form of the ISDA Form, this Confirmation will supplement,
form a part of, and be subject to that agreement. All provisions contained or
incorporated by reference in that agreement upon its execution will govern this
Confirmation except as expressly modified below.
The terms of the Transaction to which this Confirmation relates are as follows:
Trade Date:
Option Style: European
Option Type: Call
Seller: Party B
Buyer: Party A
Shares: Common stock of Trimeris Inc. (Symbol: TRMS)
Number of Options:
Option Entitlement: 1.00
Strike Price: USD
Premium: USD
Premium Payment
Date: Three Currency Business Days following the Trade Date
Exchange: The NASDAQ Stock Market
Related Exchange(s): Any exchange or quotation system on which the Shares
or options or futures on the Shares are listed or
quoted.
Clearance System: The Depository Trust Company, or any successor to or
transferee of such clearance system.
Calculation Agent: Party A
Procedure for Exercise
- ----------------------
Expiration Time: The close of trading on the Exchange without regard
to extended or after hours trading (local time in
New York).
Expiration Date:
Automatic Exercise: Applicable
Seller's Contact
Details for Notice:
Telephone:
Reference Price: The last reported sale price (if the Exchange
is The NASDAQ Stock Market) or the closing price (if
the Exchange is other than The NASDAQ Stock Market)
per Share at the Expiration Time on the Expiration
Date, as reported by the Exchange, without regard to
extended or after hours trading.
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Settlement Terms
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Settlement: The Transaction will be Physically Settled;
provided, however, that Party B may elect to
make Cash Settlement or Net Share Settlement
applicable by giving notice to Party A on a
day (the "Election Date") no later than (in
the case of Cash Settlement) five Exchange
Business Days, or (in the case of Net Share
Settlement) twenty Exchange Business Days,
before the Expiration Date.
Cash Settlement: If Party B elects Cash Settlement, Party B
shall pay the Cash Settlement Amount to
Party A on the Cash Settlement Payment Date.
Settlement Price: If Physical Settlement is applicable,
the Settlement Price shall be the amount
determined in accordance with Section
2.1(g)(iii) of the Equity Definitions, or if
Net Share Settlement or Cash Settlement is
applicable, the Settlement Price shall be the
price determined in accordance with Section
4.4(b)(i) of the Equity Definitions.
Cash Settlement
Payment Date: Three Currency Business Days after the
Valuation Date
Net Share Settlement: If Party B elects Net Share Settlement, the
Seller shall deliver to the Buyer the number
of whole Shares (the "Settlement Shares")
equal to (i) the Cash Settlement Amount (if
any) divided by (ii) the Closing Value, plus
cash in lieu of any fractional Share. At any
time following an election of Net Share
Settlement by Party B (as the settlement
method applicable to the exercise of the
Transaction on the Expiration Date) but no
later than five Exchange Business Days before
the Expiration Date, Party B may elect Cash
Settlement or Physical Settlement.
Closing Value: The last reported sale price (if the
Exchange is The NASDAQ Stock Market) or
closing price (if the Exchange is other than
The NASDAQ Stock Market) per Share on the
Valuation Date, as reported by the Exchange,
without regard to extended or after hours
trading.
Settlement Date: If Physical Settlement is applicable,
the Settlement Date shall be the date
determined in accordance with Section 6.2 of
the Equity Definitions, or if Net Share
Settlement is applicable, the Settlement Date
shall be the date determined in accordance
with Section 6.2 of the Equity Definitions
provided that any reference to "Exercise
Date" in that section shall be deemed to be a
reference to "Valuation Date."
Valuation for Cash Settlement
- -----------------------------
Valuation Date: As defined in Section 4.2 of the Equity
Definitions
Valuation Time: At the close of trading on the Exchange,
without regard to extended or after hours
trading.
Relevant Price: The last reported sale price (if the
Exchange is The NASDAQ Stock Market) or
closing price (if the Exchange is other than
The NASDAQ Stock Market) per Share at the
Valuation Time on an Averaging Date, as
reported by the Exchange.
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Averaging Dates: The Valuation Date and each of the two
Exchange Business Days preceding the
Valuation Date
Averaging Date
Market Disruption: Modified Postponement
Adjustment Events
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Method of
Adjustment: Calculation Agent Adjustment
Extraordinary Events
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Consequences of Merger Events:
(a) Share-for-Share: Cancellation and Payment
(b) Share-for-Other: Cancellation and Payment
(c) Share-for-Combined: Cancellation and Payment
For the purposes of this Confirmation, the second line of Section 9.3(b)(ii) of
the Equity Definitions is deleted and replaced with, "Share Basket Option
Transaction, the Option Transaction will be cancelled as of the earlier of (i)
the third Exchange Business Day following the Announcement Date and (ii) the
twentieth Exchange Business Day before the Merger Date".
Nationalization or Insolvency: Cancellation and Payment
Miscellaneous
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Conditions on Net Share Settlement
and Physical Settlement: If Party B elects Physical Settlement or
Net Share Settlement, the following
conditions must be met: (i) Party B will
enter into a Registration Rights Agreement
with Party A in form and substance reasonably
acceptable to Party A not later than the
Election Date, which agreement will contain,
among other things, the representations and
warranties, indemnification and contribution
provisions and the obligation of Party B to
deliver customary opinions of counsel and
accountants' comfort letters and officers'
certificates, in each case, consistent with
those that Party A would require in the case
of a primary issuance of common stock, and
obligations of Party A and Party B relating
to the registration of the Settlement Shares
and the Make-Whole Shares (the "Registered
Shares"); (ii) the Shelf Registration (as
hereinafter defined) shall have been declared
effective by the Securities and Exchange
Commission not less than five Exchange
Business Days prior to the Expiration Date;
and (iii) Party B shall maintain the
effectiveness of the Shelf Registration and a
prospectus covering the Registered Shares
available for use by Party A until all
Registered Shares have been sold by Party A.
"Shelf Registration" means a registration
statement in form and substance reasonably
acceptable to Party A for an offering to be
made on a continuous basis pursuant to Rule
415 under the Securities Act of 1933, as
amended, registering Party A's resale of all
the Settlement Shares, plus any Make-whole
Shares, in the manner or manners designated
by Party A.
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Make-Whole
Provision: If within sixty Exchange Business Days from
(and including) the date Party B delivers
Settlement Shares to Party A pursuant to Net
Share Settlement of the Transaction, Party A
resells all or any portion of the Settlement
Shares and the net proceeds received by Party
A upon resale of such Shares exceed the Cash
Settlement Amount (or if less than all of the
Shares are resold, the applicable pro rata
portion of the Cash Settlement Amount), Party
A shall promptly refund in cash such
difference to Party B. In the event that such
net proceeds are less than the Cash
Settlement Amount (or if less than all of the
Settlement Shares are resold, the applicable
pro rata portion of the Cash Settlement
Amount), Party B shall pay in cash or
additional Shares such difference (the
"Make-whole Amount") to Party A promptly
after receipt of notice thereof. In the event
that Party B elects to pay the Make-whole
Amount in additional Shares, the requirements
set forth above with respect to payment of
the Cash Settlement Amount in Shares,
including Make-whole requirements, shall
apply, such that Party A shall pay to Party B
any such excess and Party B shall pay to
Party A in cash or additional Make-whole
Shares any additional Make-whole Amount. In
calculating the net proceeds from the resale
of any Settlement Shares there shall be
deducted from such proceeds any amount equal
to the underwriting discount or commission
determined by the Calculation Agent
multiplied by the total number of Shares sold
pursuant to a Shelf Registration or (in the
case of restricted Shares), the total number
of Shares delivered by Party B to Party A
pursuant to Net Share Settlement.
Title to Shares: If the Transaction is to be Physically
Settled or Net Share Settled, the party
obligated to deliver Shares represents,
warrants and agrees that (a) (if not the
issuer of the Shares), it is the legal and
beneficial owner of the Shares it is required
to deliver; (b) it has the right to transfer
or, (if the issuer of the Shares) issue,
those Shares; (c) it will convey good title
to the Shares it is required to deliver, free
from all liens, charges, equities, rights of
pre-emption or other security interests or
encumbrances whatsoever; (d) (if the issuer
of the Shares), all Shares will, at the time
of delivery, be duly authorized, validly
issued and fully paid and non-assessable; and
(e) if the Transaction is to be Physically
Settled, the Shares it will deliver will not
be "restricted" or "control" securities
within the meaning of Rule 144 under the
Securities Act of 1933 as amended (the
"Securities Act") and will be freely
transferable without restriction when
delivered upon settlement.
Transfer: Neither party may transfer any rights nor
delegate any obligations in respect of the
Transaction, in whole or in part, directly or
indirectly, without the prior written consent
of the non-transferring party.
Additional Modifications to and Elections under the ISDA Form
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A. Governing Law and Consent to Jurisdiction:
The Transaction will be governed by and construed in accordance with the laws of
New York (without reference to choice of law doctrine). Solely as between the
parties hereto, and relating solely to matters arising concerning this
Transaction, each party irrevocably submits to the non-exclusive jurisdiction of
the courts of the state of New York and the United States District Court located
in the Borough of Manhattan in the City of New York, and waives any objection
which it may have at any time to the laying of venue of any proceedings
concerning this transaction brought in such court, waives any claim that such
proceedings have been brought in an inconvenient forum and
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further waives the right to object that such court does not have jurisdiction
over any party. Notwithstanding the foregoing, nothing in this Confirmation
precludes either party from bringing proceedings in any other jurisdiction nor
will the bringing of proceedings in any one or more jurisdictions preclude the
brining of proceedings in another jurisdiction.
B. Representations and Warranties:
Party A and Party B each hereby represents, warrants and agrees as follows: (i)
it is duly organized and validly existing under the laws of the jurisdiction of
its organization or incorporation and, if relevant under such laws, in good
standing; (ii) it has the corporate power to execute and deliver this
Confirmation and to perform its obligations under this Confirmation and the
Transaction evidenced hereby; (iii) such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgement of any court or other agency of
government binding upon it or any material contract binding on or affecting it
or any of its assets; (iv) all governmental and other consents that are required
to have been obtained by it with respect to this Confirmation and the
Transaction evidenced hereby have been obtained and are in full force and effect
and all material conditions of any such consents have been complied with; (v)
its obligations under this Confirmation and the Transaction evidenced hereby
constitute its legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at
law)); (vi) it is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any relevant
jurisdiction to make any deduction or withholding for or on account of any tax
from any payment to be made by it to the other party under this Confirmation and
the Transaction evidenced hereby; (vii) its payment obligations hereunder rank
and will rank at all times at least pari passu in all respects with all of its
other unsecured obligations (except for those which are preferred by operation
of law); and (viii) it is entering into this Confirmation and the Transaction
evidenced hereby as principal (and not as agent or in any other capacity,
fiduciary or otherwise); and (ix) (a) it is an "accredited investor," as such
term is defined in Regulation D promulgated under the Securities Act of 1933,
(b) it has had access to such information regarding the Transaction and the
other party as it requested, (c) it has knowledge and experience in financial
and business matters and is capable of evaluating the merits and risks of the
Transaction and is able to bear the economic risk of its investment, including
without limitation the risk of complete loss on the investment, and (d) it
acquired its interest herein and in the Transaction evidenced hereby for its own
account for investment and not with a view to, or in connection with, any
distribution of such interests.
Representations and warranties set forth in section (ix) above will be correct
and complied with in all respects at all times so long as the parties continue
to have obligations and duties to each other hereunder as if repeated then, by
reference to then existing circumstances.
C. "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), NONE
Section 5(a)(vi), NONE
Section 5(a)(vii), NONE
Section 5(b)(iv), NONE
and in relation to Party B for the purpose of:
Section 5(a)(v), Any Affiliate of Party B
Section 5(a)(vi), Any Affiliate of Party B
Section 5(a)(vii), Any Affiliate of Party B
Section 5(b)(iv), Any Affiliate of Party B
D. The "Cross Default" provisions of Section 5(a)(vi) of the ISDA Form, as
modified below, will apply to Party A and to Party B. Section 5(a)(vi) of ISDA
Form is hereby amended by the addition of the following at the end thereof:
6
"provided, however, that notwithstanding the foregoing, an Event of
Default shall not occur under either (1) or (2) above if, as demonstrated to the
reasonable satisfaction of the other party, (a) the event or condition referred
to in (1) or the failure to pay referred to in (2) is a failure to pay caused by
an error or omission of an administrative or operational nature; and (b) funds
were available to such party to enable it to make the relevant payment when due;
and (c) such relevant payment is made within three Business Days following
receipt of written notice from an interested party of such failure to pay."
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) for the payment or
repayment of any money.
"Threshold Amount" means, with respect to Party B or any Specified Entity,
USD10,000,000 or, if lower, the amount in USD of debt which the failure of Party
B to pay will constitute on default or event of default under Party B's
principal credit agreement with banks or other lending institutions and, with
respect to Party A, shall mean 2% of the shareholder's equity (howsoever
described) of Party A as shown on the most recent annual audited financial
statements of Party A.
E. "Payments on Early Termination". For the purpose of Section 6(e) of this
ISDA Form:
(i) Loss will apply.
(ii) The Second Method will apply.
F. In consideration of the parties continuing obligations under this
Transaction, Party A and Party B amend Section 5(a)(ii) of the ISDA Form as of
the Trade Date such that, for the purpose of determining an Event of Default
with respect to Party B under Section 5(a)(ii), the penultimate and last lines
of Section 5(a)(ii) are deleted and replaced with, "with this ISDA Form if such
failure is not remedied on or before the second Exchange Business Day after
Party A has given notice of such failure to Party B (such notice may be given by
facsimile using the most recent facsimile number notified by Party B to Party A
and will be deemed given to Party B upon receipt by Party A of a positive
transmission report generated by Party A's facsimile machine)".
Notwithstanding any other provisions of this Confirmation or the ISDA Form, the
following provisions shall apply:
1. Settlement on Extraordinary Event:
---------------------------------
(a) If payment is required of Party B pursuant to Section 9.3 or 9.7 of the
Equity Definitions in connection with a "Share-for-Share" Merger Event or
"Share-for-Combined" Merger Even, Party B shall have the right, in its sole
discretion, to elect (the "Extraordinary Transaction Election") to satisfy any
such payment obligation by Net Share Settlement of this Transaction PROVIDED
THAT, in connection with a "Share-for-Combined" Merger Event or
"Share-for-Other" Merger Event, the Extraordinary Transaction Election is
available to satisfy only the percentage of such payment obligation equal to the
percentage of the non-cash consideration over the total Combined Consideration
(in the care of a "Share-for-Combined" Merger Event) or total Other
Consideration (in the case of a "Share-for-Other" Merger Event). The remaining
percentage of such payment obligation must be satisfied in cash. Party B shall
make any election to Net Share Settle the Transaction within two Exchange
Business Days of the Announcement Date but in any event not less than twenty
Exchange Business Days prior to the effective date of such Merger.
(b) For purposes of any such Net Share Settlement: (i) the "Shares" to be
registered and delivered to Party A shall be the Shares, (ii) the Cash
Settlement Amount shall be the amount determined in accordance with Section 9.7
of the Equity Definitions, provided that, for the purposes of this Confirmation,
the second and third lines of Section 9.7(b) of the Equity Definitions are
deleted and replaced with, "promptly by the parties after the Extraordinary
Transaction Election, failing which it will be determined by the Calculation
Agent and based on", (iii) the Closing Value shall be the last reported sale
price (if the Exchange is The NASDAQ Stock Market) or closing price (if the
Exchange is other than The NASDAQ Stock Market) per Share on the third Exchange
Business Day immediately preceding the Settlement Date, (iv) the Settlement Date
shall be the tenth Clearance System Business Day following the Announcement
Date, but in any event not later than eight Exchange Business Days before the
Merger Date, and (v)
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the entity surviving, resulting from, or acquiring Party B in connection with
the Merger Event shall comply with all of the Conditions on Net Share Settlement
set forth in this confirmation.
2. Calculations and Payment on Early Termination:
---------------------------------------------
(a) The obligations of Party B to make payments pursuant to Section 6(d) and
(e) of the ISDA Form are modified as follows: Party B shall have the right to
make any payment required pursuant to Section 6(e) of the ISDA Form following
the occurrence of an Early Termination Date in respect of this Transaction and
any other Transaction between the parties referenced to the Shares and to which
this modification of the ISDA Form is expressly made applicable and under which
Party B is required to make a payment pursuant to Section 6(d) or (e) of the
ISDA Form ("Share Eligible Transactions") by electing to Net Share Settle the
Share Eligible Transactions in accordance with the terms and conditions for Net
Share Settlement herein and in any other Share Eligible Transaction. Party B
shall elect to Net Share Settle the Share Eligible Transactions by giving notice
to Party A of such election (i) if Party B is the Defaulting or Affected Party,
within one Exchange Business Day after the notice fixing an Early Termination
Date is received by Party B or (ii) if Party A is the Defaulting or Affected
Party, in the notice fixing an Early Termination Date. If Party B elects Net
Share Settlement:
(i) The relevant parties shall determine pursuant to Section 6(e) of
the ISDA Form the Loss applicable to Share Eligible Transactions
and to Transactions that are not Share Eligible Transactions
("Other Transactions") (for the avoidance of doubt, Other
Transactions includes Transactions referenced to the Shares in
respect of which Party A has a payment obligation to Party B
under Section 6(d) or (e) of the ISDA Form) and the Cash
Settlement Amount for purposes of Net Share Settlement of Share
Eligible Transactions shall be the amount, if any, payable by
Party B to Party A as the Loss in respect of Share Eligible
Transactions. In consideration of the parties continuing
obligations under this Transaction, Party A and Party B amend the
ISDA Form as of the Trade Date as follows:
(A) Party A's obligation to make any payment pursuant to Section
6(e) of the ISDA Form (the "Section 6(e) Payment") is subject
to the precondition that all amounts payable and securities
deliverable by Party B to Party A in connection with all
Share Eligible Transactions have been received by Party A in
full (the "Receipt"); and
(B) the time provided in the ISDA Form within which Party A must
make the Section 6(e) Payment shall be extended until such
Receipt.
The last sentence of the first paragraph of Section 6(e) of the
ISDA Form shall not apply with respect to Share Eligible
Transactions. Nothing in the immediately preceding sentence shall
affect the obligations of the parties to pay the amount
determined in accordance with Section 6(e) in respect of Other
Transactions in cash in accordance with Section 6 of the ISDA
Form.
(ii) The Settlement Date for Net Share Settlement shall be the later
of:
(A) the payment date determined pursuant to Section 6(d)(ii) of
the ISDA Form; and
(B) the earlier of (x) the second Exchange Business Day following
the date the Registration Statement is declared effective by
the Securities and Exchange Commission ("SEC"); and (y) the
date determined pursuant to paragraph 2(a)(v)(A)(4).
-----------------------
(iii) If Party B is the Defaulting Party or the sole Affected Party,
the Closing Value of the Shares shall be 75% of the last reported
sale price (if the Exchange is The NASDAQ Stock Market) or
closing price (if the Exchange is other than The NASDAQ Stock
Market) per Share on the third Exchange Business Day immediately
preceding the Settlement Date as reported by the Exchange,
without regard to extended or after hours trading. Party B shall
comply with all of the Conditions on Net Share Settlement
applicable to Share Eligible Transactions, except that the
Registration Statement must be declared effective by the
Securities and Exchange Commission ("SEC") not later than the
close of business on the second Exchange Business Day following
the notice fixing an Early Termination Date.
(iv) To the extent permitted under applicable law, interest (before as
well as after judgment) in the Termination Currency, shall accrue
on, and be added to, the Cash Settlement Amount from (and
including) the relevant Early Termination Date to (but excluding)
the date such amount is paid or otherwise settled by the delivery
of the necessary number of Shares as required herein, at the
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Applicable Rate. Such interest will be calculated on the basis
of daily compounding and the actual number of days elapsed.
(v) If Party B has used its best efforts to satisfy the Conditions
on Net Share Settlement but has been unable to because the
Registration Statement is not declared effective by the SEC
within the time set out in paragraph 2(a)(iii) (or, where
-------------------
Party A has previously made the election set out in paragraph
---------
2(a)(v)(B), within the time designated pursuant to paragraph
---------- ---------
2(a)(v)(B)), Party A, in its absolute discretion, may elect
-----------
to:
(A) receive the relevant number of Shares from Party B in
which case:
(1) the day on which Party A makes such an
election to receive such Shares from Party B
is the "Party A Election Date", and
(2) Party B shall withdraw any Registration
Statement filed with the SEC in connection
with the Shares, and
(3) Party B will enter into a Private Placement
Purchase Agreement with Party A in form and
substance acceptable to Party A no later than
the next Exchange Business Day following the
Party A Election Date, and
(4) Party B shall deliver to Party A such Shares
on the Settlement Date which, for the purposes
of this paragraph 2(a)(v)(A)(4), shall be the
-----------------------
third Exchange Business Day following the
Party A Election Date, and
(5) in addition to any Make-whole Amount payable
by Party B pursuant to the Make-Whole
Provision herein, Party B shall deliver to
Party A such additional Shares until Party A
has realized actual net proceeds upon resale
of such Shares equal to Party A's Loss. At its
election, Party A may by a written notice to
Party B retain a number of Shares delivered by
Party B pursuant to this paragraph 2(a)(v). If
-----------------
Party A so elects, Party A shall be deemed to
have sold each such retained Share for an
amount equal to the price per Share obtained
by Party A in the last Share sold by Party A
prior to sending written notice of its
intention to retain Shares to Party B. In no
event will Party A be obligated to exercise
its right to retain Shares; or
(B) extend the period within which the Registration
Statement is to be declared effective by the SEC for a
further period specified in writing by Party A at the
time of such extension.
This section entitled Calculations and Payment on Early Termination shall be
applicable only to the extent and only for as long as necessary for Party B to
account for this Transaction as "permanent equity" within the meaning and for
the purposes of EITF 00-7 or any successor financial statement guidance. Party B
has made its own independent decision based upon its own judgment and upon
advice from such advisers as it has deemed necessary, as to whether the
Transaction may be accounted for as "permanent equity" within such meaning and
for such purposes and is not relying on any communication (written or oral) of
Party A in this regard.
3. Other Provisions
----------------
(a) Determined Amount. Notwithstanding any other provision applicable to this
Transaction, if Party B exercises its right pursuant to section 2(a) above to
------------
Net Share Settle this Transaction, Party B shall not be obliged to deliver, in
connection with this Transaction, in excess of 142,300 Shares, as recalculated
from time to time (the "Determined Amount"). The number of Shares (if any) equal
to (u)(i) the Cash Settlement Amount divided by (ii) the Closing Value (both
terms as defined in section 2(a) above), minus (v) the Determined Amount, are
the "Excess Shares". In the event that, but for this section 3, Party B would be
---------
obliged to deliver a number of Shares equal to the Determined Amount plus the
Excess Shares, Party B agrees to (x) satisfy its remaining obligation by cash
payment or; (y) (i) use its best efforts to increase its number of Authorized
Shares, thereby increasing the Determined Amount, to the extent necessary so
that, but for this section 3, the number of Shares Party B would be obliged to
---------
deliver does not exceed the (recalculated) Determined Amount and (ii) allocate
such newly Authorized Shares in satisfaction of Party B's delivery obligations
under this Transaction in priority to any other use of such Shares. For the
avoidance of doubt, the obligation of Party B to so use its best efforts is an
ongoing obligation.
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(b) Party B hereby represents and warrants that it will:
(i) calculate the Determined Amount based on the maximum amount
able to be calculated in accordance with EITF 00-19 or any
successor financial statement guidance; and
(ii) in respect of all equity derivative transactions in respect
of which Party B's equity securities constitute (all or part
of) the instruments underlying such transactions (the
"Derivative Trades"), use the same methodology to derive the
Determined Amount (howsoever described) applicable to each
Derivative Trade as is used to derive the Determined Amount
for this Transaction.
(c) Rights in Bankruptcy. Party A agrees that, in respect of any obligations
Party B has duly elected be satisfied by Net Share Settlement in accordance with
this Confirmation, in the event of Party B's bankruptcy, Party A shall not have
rights in bankruptcy that rank senior to the rights in bankruptcy of common
shareholders of Party B.
Account Details
- ---------------
Party A: Cash Payments for Physical Settlement
-------------------------------------
Cash Settlement Payments or USD Premium Payments
------------------------------------------------
Delivery of Shares for Physical Settlement and Net Share
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Settlement
----------
Party B: (please advise)
Relationship Between Parties
- ----------------------------
Each party will be deemed to represent to the other party on the date on which
it enters into a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the contrary for that
Transaction):
(a) Non-Reliance. It is acting for its own account, and it has made its own
------------
independent decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgement and
upon advice from such advisers as it has deemed necessary. It is not relying on
any communication (written or oral) of the other party as investment advice or
as a recommendation to enter into that Transaction; it being understood that
information and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a recommendation to
enter into that Transaction. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(b) Assessment and Understanding. It is capable of assessing the merits of and
----------------------------
understanding (on its own behalf or through independent professional advice),
and understands and accepts the terms, conditions and risks of that Transaction.
It is also capable of assuming, and assumes, the risks of that Transaction.
(c) Status of Parties. The other party is not acting as a fiduciary for or an
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adviser to it in respect of that Transaction.
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Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us by facsimile (203 719 0538) at your earliest convenience.
Yours sincerely,
_____________________________
By: _________________________ By: _____________________
Name: Name:
Title: Title:
Confirmed as of the ___ day
of ____________, ____
TRIMERIS, INC.
By: _________________________
Name:
Title:
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