EXHIBIT 4.1
STOCK AND WARRANT PURCHASE AGREEMENT
This Stock and Warrant Purchase Agreement (the "Agreement") is made as of
March 22, 2001 between NASTECH PHARMACEUTICAL COMPANY INC., a Delaware
corporation (the "Company"), and the purchasers who are signatories hereto (the
"Purchasers").
WHEREAS, the Company wishes to sell and the Purchasers desire to purchase
shares (the "Shares") of the Company's Common Stock, $.006 par value per share
("Common Stock") and Warrants (as defined in Section 1.3), as such are being
offered by the Company pursuant to an Offering Memorandum dated February 5, 2001
(which together with all exhibits thereto and any amendment or supplement
thereto is referred to herein as the "Offering Memorandum"), this Agreement and
the documents as set forth herein ;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Purchase and Sale of Shares and Warrants.
1.1 Sale to the Purchasers. Subject to the terms and conditions
hereof, the Company will issue and sell to each Purchaser the number of Shares
set forth opposite such Purchaser's name on the signature page and the number of
Warrants to purchase the number of Shares of Common Stock as set forth opposite
such Purchaser's name on the signature page hereto for the purchase price
indicated on the signature page hereto ("Purchase Price."). The obligations of
each Purchaser hereunder are several and not joint and no Purchaser shall be
obligated to purchase any number of Shares in excess of the number set forth
opposite such Purchaser's name on the signature page hereto.
1.2 Aggregate Sale. Pursuant to this Agreement, the Company shall
sell up to 90.988 Units, consisting of up to an aggregate of 1,364,820 Shares of
Common Stock and up to an aggregate of 682,410 Warrants to purchase Common Stock
of the Company. Each Unit consists of 15,000 shares of Common Stock and 7,500
Warrants. The Unit Purchase Price will be equal to the product of 15,000
multiplied by $4.875. Each Unit will be sold at a purchase price of $73,125 per
Unit. Each Warrant issued shall be in the form of Exhibit H attached hereto and
shall entitle the holder to purchase one Share of Common Stock of the Company at
an exercise price equal to 130% of $4.875. The Warrants shall be exercisable for
a term of five years from the date of issuance.
1.3 Payment of Purchase Price. On or prior to the Closing Date, each
Purchaser will deliver to State Street Bank and Trust Company as Escrow Agent
(the "Escrow Agent") the amount of the aggregate Purchase Price for the Units
purchased by such Purchaser hereunder, by wire transfer of funds to the Escrow
Agent. The Purchase Price shall be maintained in a segregated account until the
Closing Date and shall be released either (a) to the Company upon the
consummation of the transaction contemplated hereunder; or (b) to the Purchaser
upon the termination of this Agreement in accordance with Section 7.
2. Closing Date and Delivery.
2.1 Closing Date. The closing of the purchase and sale of the Shares
and Warrants hereunder (the "Closing") will be held at such time (the "Closing
Date") as shall be agreed upon by the Company, the Placement Agent and the
Purchasers (optionally at the offices of the Placement Agent, 650 Fifth Avenue,
New York, NY 11019). The Closing Date shall occur upon receipt of subscriptions
for all of the Units offered by the Company, (or such lesser amount as
determined by the Company), but in no event shall the Closing Date be later than
March 31, 2001.
2.2 Deliveries at Closing. At the Closing the Company shall deliver
the following to each Purchaser: (a) a stock certificate registered in such
Purchaser's name, or in such nominee name(s) as designated by the Purchaser in
writing, representing the Shares purchased by such Purchaser; (b) Warrants in
such Purchaser's name, or in such nominee name(s) as designated by the Purchaser
in writing; (c) an opinion of Roberts, Sheridan and Kotel, The New York Practice
of Dickstein Shapiro's Corporate & Finance Group dated the Closing Date and
substantially in the form attached hereto as Schedule I ("Opinion of Counsel");
and (d) a certificate, signed by the President of the Company, to the effect
that (i) the representations and warranties of the Company contained in this
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Agreement are true and correct in all material respects on and as of the Closing
Date as though newly made on and as of that date (except for representations and
warranties which speak as of the date of the Agreement or as of another specific
date or period, which shall continue to be true and correct in all material
respects as of the respective dates and for the respective periods covered
thereby) and (ii) the Company has performed and complied with, in all material
respects, all of its covenants contained in this Agreement and required to be
performed or complied with on or before the Closing. Each Purchaser's obligation
to purchase the Shares shall be subject to the following conditions: (a) the
accuracy of the representations and warranties made by the Company herein and
the fulfillment of those undertakings of the Company to be fulfilled prior to
Closing; and (b) delivery of the Opinion of Counsel.
Upon satisfaction of all the conditions to Closing set forth in this
Agreement and the delivery of the certificates representing the Shares and of
the Warrants to the Purchaser, the Escrow Agent shall be directed to deliver to
the Company the Purchase Price for the Shares, less the Placement Agent fee due
to the Placement Agent and any expense that the Company has agreed to reimburse
to the Placement Agent and its counsel, which the Escrow Agent shall pay
directly to them in accordance with the Company's engagement letter with the
Placement Agent.
3. Representations and Warranties by the Company. The Company represents
and warrants to each Purchaser as of the date hereof and as of the Closing Date
that:
3.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted. The
Company is qualified to do business and is in good standing as a foreign
corporation in every jurisdiction in which the failure to so qualify would have
a material adverse effect on the financial condition or business of the Company.
3.2 Changes. Except as set forth herein and in the Offering
Memorandum, since September 30, 2000, the Company has not, to the extent
material to the Company, (i) incurred any debts, obligations or liabilities,
absolute, accrued or contingent, whether due or to become due, other than in the
ordinary course of business, (ii) mortgaged, pledged or subjected to lien,
charge, security interest or other encumbrance any of its assets, tangible or
intangible, (iii) waived any debt owed to the Company or its subsidiaries, (iv)
satisfied or discharged any lien, claim or encumbrance or paid any obligation
other than in the ordinary course of business, (v) declared or paid any
dividends, or (vi) entered into any transaction other than in the usual and
ordinary course of business.
3.3 Litigation. Except as set forth in the Offering Memorandum,
there are no legal actions, suits, arbitrations or other legal, administrative
or governmental proceedings pending or, to the best of the Company's knowledge,
threatened against the Company or its properties, assets or business.
3.4 Compliance with Other Instruments. Except for such matters
which, either individually or in the aggregate, would not have a material
adverse effect on the financial condition or business of the Company, the
execution and delivery of, and the performance and compliance with, this
Agreement and the Warrants and the transactions contemplated hereby or thereby,
with or without the giving of notice, will not (i) result in any breach of, or
constitute a default under, or result in the imposition of any lien or
encumbrance upon any asset or property of the Company pursuant to any agreement
or other instrument to which the Company is a party or by which it or any of its
properties, assets or rights is bound or affected, (ii) violate the Certificate
of Incorporation or Bylaws of the Company, or , subject to the accuracy of the
representations and warranties of the Purchasers contained in Article 4 of this
Agreement, any law, rule, regulation, judgment, order or decree, or (iii) except
for the registration of the Shares and the Warrant Shares under the Securities
Act of 1933, as amended (the "Securities Act"), the listing of the Shares and
the Warrant Shares on the NASDAQ Stock Market and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase of the Shares and the Warrants by the Purchasers, require any consent,
approval, authorization or order of or filing with any court or governmental
agency or body. The Company is not in violation of its Certificate or Bylaws nor
in violation of, or in default under, any lien, mortgage, lease, agreement or
instrument, except for such defaults which would not, individually or in the
aggregate, have a material adverse effect on the financial condition or business
of the Company. The Company is not subject to any restriction which would
prohibit the Company from entering into or performing its obligations under this
Agreement or the Warrants, except
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for such restrictions which would not, individually or in the aggregate, have a
material adverse effect on the ability of the Company to perform its obligations
under this Agreement and the Warrants.
3.5 Reports and Financial Statements. The Purchasers have obtained
copies of the Company's Form 10-K/A for the year ended December 31, 1999, the
Company's Proxy Statement in connection with the 1999 Annual Meeting of
Stockholders, the Company's Registration Statement on Form S-2/A, dated January
12, 2001, the quarterly report on Form 10-Q for the period ended September 30,
2000, and a current report on Form 8-K dated August 8, 2000 filed by the Company
with the Securities and Exchange Commission (the "SEC"), in each case without
exhibits thereto (collectively with all filings of the Company with the SEC, the
"SEC Reports"). As of their respective filing dates, the SEC Reports were
prepared in all material respects in accordance with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such SEC Reports. The SEC
Reports, when read as a whole, as updated by the Offering Memorandum, and the
Offering Memorandum when read together with the exhibits thereto, do not contain
any untrue statements of a material fact and do not omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The audited consolidated financial
statements and unaudited interim financial statements of the Company included in
the SEC Reports have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis (except as may be
indicated therein or in the notes thereto) and fairly present, in all material
respects, the financial position of the Company as at the dates thereof and the
results of its operations and cash flows for the periods then ended subject, in
the case of the unaudited interim financial statements, to normal year-end
adjustments and any other adjustments described in such financial statements.
3.6 Shares. The Shares, the Warrants and the Warrant Shares, when
issued and paid for pursuant to the terms of this Agreement as the case may be,
will be duly and validly authorized, issued and outstanding, fully paid,
nonassessable and free and clear of all pledges, liens, encumbrances and
restrictions (other than arising under federal or state securities laws). The
authorized capital stock of the Company, including the Shares, conforms, and
when issued, the Warrant Shares will conform, to all statements relating thereto
included in the documents set forth herein. The issuance of the Shares, the
Warrants and the Warrant Shares is not subject to any preemptive or other
similar rights. The Company has duly reserved 798,420 shares of its authorized
but unissued Common Stock for issuance upon exercise of the Warrants by the
Purchasers and the Placement Agent, and such shares shall remain so reserved
(subject to reduction from time to time for Common Stock issued upon the
exercise of the Warrants), as long as the Warrants are exercisable.
3.7 Securities Laws. Subject to the accuracy of the representations
and warranties of the Purchasers contained in Article 4 of this Agreement, the
offer, sale and issuance of the Shares, the Warrants and the Warrant Shares as
contemplated by this Agreement are exempt from the registration requirements of
the Securities Act, and from the registration or qualifications requirements of
the laws of any applicable state or other U.S. jurisdiction.
3.8 Capital Stock. As of December 31, 2000, (i) 6,803,485 shares of
the Company's Common Stock were issued and outstanding, (ii) no shares of the
Company's Preferred Stock were issued and outstanding, and (iii) options and or
warrants to purchase 2,130,745 Shares of the Company's Common Stock were issued
and outstanding. There are also 1,249,500 shares of common stock that are
issuable under the equity line of credit and under the warrants which may be
granted in the future under the equity line of credit. All of the outstanding
Shares of the Company's capital stock are validly issued, fully paid and
nonassessable. Except as set forth in this Section 3.8 or the Offering
Memorandum, as of December 31, 2000, there are no outstanding subscriptions,
options, warrants, calls, contracts, demands, commitments, conversion rights or
other agreements or arrangements of any character or nature whatever under which
the Company is or may be obligated to issue its Common Stock, Preferred Stock or
warrants or options to purchase Common Stock or Preferred Stock. No holder of
any security of the Company is entitled to any preemptive or similar rights to
purchase any securities of the Company.
3.9 Corporate Acts and Proceedings. This Agreement has been duly
authorized by the requisite corporate action and has been duly executed and
delivered by an authorized officer of the Company, and is a valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and as to limitations on the enforcement of the remedy of
specific performance and other equitable remedies. The requisite corporate
action necessary to the authorization, reservation, issuance and delivery
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of the Shares, the Warrants and the Warrant Shares has been taken by the
Company. Upon execution and delivery thereof by a duly authorized officer of the
Company, the Warrants will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and as to
limitations on the enforcement of the remedy of specific performance and other
equitable remedies.
3.10 No Implied Representations. All of the Company's
representations and warranties are contained in this Agreement, and no other
representations or warranties by the Company shall be implied.
3.11 Filing of Reports. Since the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, the Company has filed with the
SEC all reports and other material required to be filed by it therewith pursuant
to Section 13, 14 or 15(d) of the Exchange Act and the Company is eligible to
register the offer and resale of the Shares and the Warrant Shares on a
Registration Statement on Form S-3, or a successor form.
3.12 Compliance with Laws. The business and operations of the
Company have been conducted in accordance with all applicable laws, rules and
regulations of all governmental authorities, except for such violations which
would not, individually or in the aggregate, have a material adverse effect on
the financial condition or business of the Company.
1.13 Closing Date. Except as to representations and warranties that
speak of a specific date or period, all the representations and warranties made
by the Company in this Section 3 shall be true and complete from the date of
this Agreement through the Closing Date and the Company shall provide each
Purchaser, before the Closing, with any documents or information necessary for
such representations and warranties to remain true and complete as of the
Closing Date.
3.14 Proprietary Rights. The Company owns or is licensed to use all
patents, patent applications, inventions, trademarks, trade names, applications
for registration of trademarks, service marks, service mark applications,
copyrights, know-how, manufacturing processes, formulae, trade secrets, licenses
and rights in any thereof and any other intangible property and assets (herein
called the "Proprietary Rights") which are material to the business of the
Company, as now conducted or as proposed to be conducted. The Company does not
have any knowledge of, and the Company has not given or received any notice of,
any pending conflicts with or infringement of the rights of others with respect
to any Proprietary Rights or with respect to any license of Proprietary Rights.
No action, suit, arbitration, or legal, administrative or other proceeding, or
investigation is pending or, to the knowledge of the Company, threatened, which
involves any Proprietary Rights. The Company is not subject to any judgment,
order, writ, injunction or decree of any court or any Federal, state, local,
foreign or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, and has not entered
into or is a party to any contract which restricts or impairs the use of any
such Proprietary Rights in a manner which would have a material adverse effect
on the use of any of the Proprietary Rights. To the knowledge of the Company, no
Proprietary Rights used by the Company, and no services or products sold by the
Company, conflict with or infringe upon any proprietary rights owned or licensed
by any third party. The Company has not received written notice of any pending
conflict with or infringement upon such third-party proprietary rights. No
claims have been asserted by any person with respect to the validity of the
Company's ownership or right to use the Proprietary Rights and, to the knowledge
of the Company, there is no reasonable basis to believe that such a claim will
be asserted. To the knowledge of the Company, the Proprietary Rights are valid
and enforceable.
3.15 Compliance with Environmental Laws. Except as would not, singly
or in the aggregate, have a material adverse effect on the Company, the Company
is not in violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to the Company's knowledge,
no expenditures material to the Company are or will be required to comply with
any such existing statute, law or regulation. To the Company's knowledge, the
Company does not have any liability to any governmental authority or other third
party arising under or as a result of any such past or existing statute, law or
regulation, which liability would be material to the Company.
3.16 Permits, Licenses, Etc. The Company owns, possesses or has
obtained, and is operating in compliance with, all governmental, administrative
and third party licenses, permits, certificates, registrations, approvals,
consents and other authorizations (collectively, "Permits") necessary to own or
lease (as the case may be) and operate its properties, whether tangible or
intangible, and to conduct its businesses or operations as currently
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conducted, except such licenses, permits, certificates, registrations,
approvals, consents and authorizations the failure of which to obtain would not
have a material adverse effect on the business, properties, operations,
financial condition or results of operations of the Company, and the Company has
not received any notice of proceedings relating to the revocation, modification
or suspension of any Permits or any circumstance which would lead it to believe
that such proceedings are reasonably likely.
3.17 Insurance. The Company maintains insurance of the type and in
the amount reasonably 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.
3.18 Registration Rights. Except as set forth in the Offering
Memorandum, there are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the Securities Act.
4. Representations and Warranties by the Purchasers; Restrictions on
Transfer.
Each Purchaser severally represents and warrants to, and covenants and
agrees with, the Company, as of the Closing Date, as follows:
4.1 Authorization. Purchaser is duly organized and in good standing
in the jurisdiction of its organization and has all requisite legal and
corporate or other power and capacity and has taken all requisite corporate or
other action to execute and deliver the Agreement, to purchase the Shares and
the Warrants to be purchased by it and to carry out and perform all of its
obligations under the Agreement. This Agreement has been duly authorized,
executed and delivered and constitutes the legal, valid and binding obligation
of Purchaser, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and as to limitations on the enforcement of the remedy of
specific performance and other equitable remedies.
4.2 Investor Status. Purchaser is an "Accredited Investor" as
defined in Rule 501 of Regulation D under the Securities Act or a "Qualified
Institutional Buyer," as such term is defined in Rule 144A of the Securities
Act. Purchaser acknowledges receiving and reviewing the documents comprising the
Offering Memorandum, including the SEC Documents. Purchaser is aware of the
Company's business affairs and financial condition and has had access to and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Shares and the Warrants. Purchaser has
such business and financial experience as is required to give it the capacity to
utilize the information received, to evaluate the risks involved in purchasing
the Units and making an informed decision about purchasing the Units, and to
protect its own interests in connection with the purchase of the Units and is
able to bear the risks of an investment in the Units. Purchaser is not itself a
"broker" or a "dealer" as defined in the Exchange Act of 1934 and is not an
"affiliate" of the Company as defined in Rule 405 of the Securities Act.
4.3 Investment Intent. Purchaser is purchasing the Shares and the
Warrants for its own account as principal, for investment purposes only, and not
with a present view to or for resale, distribution or fractionalization thereof,
in whole or in part, within the meaning of the Securities Act. Purchaser
understands that its acquisition of the Shares and the Warrants 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 Purchaser's
investment intent as expressed herein. Purchaser has, in connection with its
decision to purchase the number of Shares and the Warrants set forth in this
Agreement, relied solely upon the Offering Memorandum and the representations
and warranties of the Company contained herein. Purchaser will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares or Warrants, except in compliance with the Securities Act and the rules
and regulations promulgated thereunder.
4.4 Registration or Exemption Requirements. Purchaser further
acknowledges and understands that neither the Shares nor the Warrants may be
resold or otherwise transferred except in a transaction registered under the
Securities Act or unless an exemption from such registration is available.
Purchaser is able to bear the economic risk of holding the Shares for an
indefinite period of time and can afford a complete lost of its investment.
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Purchaser understands that until the Shares and Warrant Shares have been
registered for resale by the Purchasers in compliance with applicable securities
laws, the certificates evidencing the Shares, the Warrants and Warrant Shares
will be imprinted with a legend that prohibits the transfer of the Shares,
Warrants and Warrant Shares unless (a) such transaction is registered or such
registration is not required, and (b) if the transfer is pursuant to an
exemption from registration an opinion of counsel reasonably satisfactory to the
Company is obtained to the effect that the transaction is not required to be
registered or is so exempt.
4.5 Restriction on Sales, Short Sales and Hedging Transactions.
Purchaser represents and agrees that during the period from the date Purchaser
was first contacted with respect to the potential purchase of Shares and
Warrants through the date of the execution of the Agreement by Purchaser,
Purchaser did not, and from such date through the effectiveness of the
Registration Statement (as defined below), Purchaser will not, directly or
indirectly, execute or effect or cause to be executed or effected any short
sale, option or equity swap transactions in or with respect to the Company's
Common Stock or any other derivative security transaction the purpose or effect
of which is to hedge or transfer to a third party all or any part of the risk of
loss associated with the ownership of the Shares and Warrants by the Purchaser.
4.6 No Legal, Tax Or Investment Advice. Purchaser understands that
nothing in this Agreement or any other materials presented to Purchaser in
connection with the purchase and sale of the Shares and the Warrants constitutes
legal, tax or investment advice. Purchaser 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 the Shares and the Warrants.
4.7 Closing Date. All the representations and warranties made by the
Purchaser in this Section 4 shall be true and complete from the date of this
Agreement through the Closing Date and the Purchaser shall provide the Company,
before the Closing, with any documents or information necessary for such
representations and warranties to remain true and complete as of the Closing
Date.
4.8 Compliance with Other Instruments. The execution and delivery of
this Agreement, the purchase of the Shares and the Warrants, and the performance
by the Purchaser of all other obligations of the Purchaser contemplated hereby
will not (i) violate any law, rule, regulation, judgment, order or decree
applicable to Purchaser, or (ii) require any consent, approval, authorization or
order of or filing with any court or governmental agency or body. Purchaser is
not subject to any restriction which would prohibit it from entering into or
performing its obligations under this Agreement, except for such restrictions
which would not, individually or in the aggregate, have a material adverse
effect on the ability of Purchaser to perform its obligations under this
Agreement. There is no action, suit, order, judgment or proceeding pending or,
to the knowledge of Purchaser, threatened against or affecting Purchaser that,
individually or when aggregated with one or more other actions, suits, orders,
judgments or proceedings, has or might reasonably be expected to have a material
adverse effect on Purchaser's ability to perform any of its obligations
hereunder or under any of the other agreements and instruments to be executed
and delivered by Purchaser in connection herewith.
4.9 Compliance with Insider Trading Rules. Purchaser agrees to
comply with the laws and rules pertaining to inside information as they may
relate to the purchase or sale of the Company's securities at all times after
the effective date of the Registration Statement.
4.10. Reliance on Representations. Purchaser acknowledges that the
Company and its counsel are entitled to rely on the representations made above.
5. Covenants
5.1 Registration Requirements.
(a) Promptly after, but not later than 30 days after, the
Closing Date, the Company shall prepare and file a registration statement (the
"Registration Statement") with the SEC under the Securities Act to register the
offer and resale of the Shares and the Warrant Shares by the Purchasers
(together, the "Registrable Securities"), and shall use its best efforts to
cause such Registration Statement to become effective within 120 days from the
Closing Date or not more than five days from the date upon which the Securities
and Exchange Commission shall allow the Company to accelerate effectiveness,
whichever is shorter. In the event that the
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Company shall fail to obtain effectiveness of the Registration Statement within
the 120-day period following the Closing Date, the Company hereby agrees that it
shall pay to each Purchaser cash in an amount equal to 2% of the total purchase
price of the shares of common stock purchased by such Purchaser for each and
every thirty (30) day period with respect to which such Registration Statement
shall not be effective. Until such time as the Registration Statement is
effective, the Company shall not grant any registration rights or other rights
to register securities under the Securities Act unless such rights are
subordinate to the rights of the Purchasers under this Section 5.1 or will not
have the effect of delaying a sale or limiting the number of securities which
may be sold by the Purchasers pursuant to the Registration Statement or
otherwise adversely affect the rights of the Purchasers under this Section 5.1.
(b) The Company shall pay all Registration Expenses (as
defined below) in connection with any registration, qualification or compliance
hereunder, and each Purchaser shall pay all Selling Expenses (as defined below)
and other expenses that are not Registration Expenses relating to the
Registrable Securities resold by such Purchaser. "Registration Expenses" shall
mean all expenses, except for Selling Expenses, incurred by the Company in
complying with the registration provisions herein described, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses and the expense of any special audits incident to or required by
any such registration. "Selling Expenses" shall mean all selling commissions,
underwriting fees and stock transfer taxes applicable to the Registrable
Securities and all fees and disbursements of counsel for any Purchaser.
(c) If the Registration Statement becomes effective, the
Company will use its best efforts to: (i) keep such registration effective until
the second anniversary of the date such Registration Statement is declared
effective (or, in the case of Warrant Shares, the first anniversary of the date
of issuance of such Warrant Shares, but in any event not later than the fourth
anniversary of the date such Registration Statement is declared effective);
provided, however, if Rule 144 is amended so that the longest period that Rule
144 restricts the manner in which privately placed securities may be sold is a
period shorter than two years, then the period required by this clause shall be
reduced to (A) such shorter period, (B) such date as all of the Registrable
Securities have been resold, or (C) such date as all Registrable Securities may
be sold pursuant to Rule 144 (or any successor rule); (ii) except as provided in
Section 5.1(f), prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Registration Statement; (iii) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as Purchaser from time to time may reasonably request; (iv) cause
the Shares and the Warrant Shares to be quoted on each quotation service on
which the Common Stock of the Company is then quoted; (v) provide a transfer
agent and registrar for all securities registered pursuant to the Registration
Statement and a CUSIP number for all such securities; and (vi) file the
documents required of the Company and otherwise use its best efforts to maintain
requisite blue sky clearance in all U.S. jurisdictions in which any of the
Shares are originally sold and all other states specified in writing by
Purchaser, provided, however, that the Company shall not be required to qualify
to do business in any state in which it is not now so qualified or has not so
consented.
(d) The Company shall furnish to each Purchaser upon request a
reasonable number of copies of a supplement to or an amendment of the prospectus
used in connection with the Registration Statement as may be necessary to
facilitate the public sale or other disposition of all or any of the Registrable
Securities held by Purchaser.
(e) With a view to making available to Purchasers the benefits
of Rule 144 and any other rule or regulation of the Commission that may at any
time permit Purchaser to sell Registrable Securities to the public without
registration or pursuant to a registration statement on Form S-3, the Company
covenants and agrees to use its best efforts to: (i) make and keep public
information available as those terms are understood and defined in Rule 144
until the earlier of (A) the date on which the Shares may be sold pursuant to
Rule 144(k) (or any successor rule) or (B) such date as all of the Registrable
Securities shall have been resold; (ii) file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and Exchange Act; and (iii) furnish to any Purchaser upon
request, as long as the Purchaser owns any Registrable Securities, (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 most recent annual or
quarterly report of the Company, and (C) such other information as may be
reasonably requested in order to avail any Purchaser of any rule or regulation
of the
7
Commission that permits the selling of any such Registrable Securities without
registration or pursuant to such registration statement on Form S-3.
(f) Purchaser hereby acknowledges that there may occasionally
be times when the Company must suspend the use of the prospectus forming a part
of the Registration Statement until such time as an amendment to such
Registration Statement has been filed by the Company and declared effective by
the SEC or until the Company has amended or supplemented such prospectus. The
Purchaser hereby covenants that it will not sell any securities pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchaser notice of the suspension of the use of said prospectus and ending
at the time the Company gives the Purchaser notice that Purchaser may thereafter
effect sales pursuant to said prospectus. Notwithstanding anything herein to the
contrary, the Company shall not suspend use of the Registration Statement by
Purchaser unless such suspension is required by the federal securities laws and
the rules and regulations promulgated thereunder. Notwithstanding the foregoing,
the Company shall not be entitled to exercise its right to block such sales or
suspend use of such prospectus more than three times during the effectiveness of
the Registration Statement nor more than one time in any four month period.
5.2. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless each
Purchaser from and against any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) to which such Purchaser may become
subject (under the Securities Act or otherwise) (including in settlement of
litigation) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon, any untrue
statement of a material fact or omission to state a material fact in the
Registration Statement , including all documents filed as a part thereof and
information deemed to be a part thereof, on the effective date thereof, or any
amendment or supplements thereto, or arise out of any failure by the Company to
fulfill any undertaking or covenant included in the Registration Statement or to
perform its obligations hereunder or under law; 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 (i) an untrue
statement or omission in such Registration Statement in reliance upon and in
conformity with information furnished to the Company by or on behalf of such
Purchaser specifically for use in preparation of the Registration Statement and
not corrected by the Purchaser in writing or (ii) an untrue statement or
omission in any prospectus that is corrected in any subsequent prospectus, or
supplement or amendment thereto, that was delivered to a Purchaser prior to the
pertinent sale or sales by such Purchaser and not delivered by such Purchaser to
the entity to which it made such sale(s) prior to such sale(s).
(b) Each Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company from and against any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) to which
the Company 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) an untrue statement or
alleged untrue statement of a material fact or omission to state a material fact
in the Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement (provided,
however, that no Purchaser shall be liable in any such case for any untrue
statement or omission in any prospectus or Registration Statement which
statement has been corrected, in writing, by such Purchaser and delivered to the
Company at least 14 days before the sale from which such loss occurred), or (ii)
an untrue statement or omission in any prospectus that is corrected in any
subsequent prospectus or supplement or amendment thereto, that was delivered to
a Purchaser at least 1 day prior to the pertinent sale or sales by such
Purchaser and not delivered by such Purchaser to the entity to which it made
such sale(s) prior to such sale(s), and each Purchaser, severally and not
jointly, will, as incurred, reimburse the Company for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim. Notwithstanding the foregoing, no
Purchaser shall be liable, or required to indemnify the Company, in the
aggregate, for any amount in excess of the net proceeds received by the
Purchaser from the sale of the Shares or the Warrant Shares, as the case may be,
to which such loss, claim, damage or liability relates.
(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 5.2,
such indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
8
indemnified person, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to the indemnified person. After notice
from the indemnifying person to such indemnified person of the indemnifying
person's election to assume the defense thereof, the 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 judgment of the indemnified
person for the same counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the indemnified
person shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, further, that the indemnifying person shall not
be obligated to assume the expenses of more than one counsel to represent all
indemnified persons.
(d) If the indemnification provided for in this Section 5.2 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 each Purchaser
on the other in connection with the statements or omissions 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, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or a Purchaser on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Purchasers 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 Purchasers 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 Purchaser shall be required to contribute in the aggregate any amount in
excess of the net proceeds received by the Purchaser from the sale of the Shares
or Warrant Shares, as the case may be, to which such loss, claim, damage or
liability relates. 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 Purchaser's obligations in this subsection (d) to
contribute are several in proportion to their sales of Shares or Warrant Shares,
as the case may be, to which such loss relates and not joint.
6. Restrictions on Transferability of Shares and Warrants; Compliance with
Securities Act.
6.1 Restrictions on Transferability. Neither the Shares nor the
Warrants shall be transferable in the absence of registration under the
Securities Act or an exemption therefrom or in the absence of compliance with
any term of the Agreement.
6.2 Restrictive Legend. Until and unless the Shares and Warrant
Shares are registered under the Securities Act, each certificate representing
the Shares and the Warrant Shares and each Warrant shall bear substantially the
following legend (in addition to any legends required under applicable state
securities laws):
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) TO AN ACCREDITED INVESTOR
(AS DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT)
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144
9
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.
6.3 Transfer of Shares and Warrants. Each Purchaser hereby covenants
with the Company not to make any sale of the Shares or Warrants except either
(a) a sale of Shares or Warrant Shares in accordance with the Registration
Statement, in which case the Purchaser covenants to comply with the requirement
of delivering a current prospectus, (b) a sale of Shares or Warrant Shares in
accordance with Rule 144, in which case the Purchaser covenants to comply with
Rule 144 and to deliver such additional certificates and documents as the
Company may reasonably request, or (c) in accordance with another exemption from
the registration requirements of the Securities Act. The legend set forth in
Section 6.2 will be removed from a certificate representing Shares or the
Warrant Shares, as the case may be, following and in connection with any sale of
Shares or Warrant Shares pursuant to subsection (a) or (b) hereof but not in
connection with any sale of Shares or Warrant Shares pursuant to subsection (c)
hereof. The Company will substitute one or more replacement certificates without
the legend at the request of the Purchaser promptly after such time as the
Registration Statement becomes effective.
7. Termination.
(a) By the Purchaser. The Purchaser may terminate this
Agreement immediately, if at any time prior to the Closing, the Company shall
cease conducting business in the normal course; become insolvent or become
unable to meet its obligations as they become due; make a general assignment for
the benefit of creditors; petition, apply for, suffer or permit with or without
its consent the appointment of custodian, receiver, trustee in bankruptcy or
similar officer for all or any substantial part of its business or assets; avail
itself or become subject to any proceeding under the Federal Bankruptcy Code or
any similar state, federal or foreign statute relating to bankruptcy,
insolvency, reorganization, receivership, arrangement, adjustment of debts,
dissolutions or liquidation.
(b) By the Company. The Company may terminate this Agreement
at any time prior to the Closing if the Purchasers have not agreed to purchase
up to an aggregate of $7.5 million in common stock pursuant to this Agreement
prior to March 31, 2001 or such later date as the Company and the Placement
Agent shall have agreed to extend the offering of the Shares with notice to the
Purchasers.
8. Miscellaneous.
8.1 Survival of Representations and Warranties. All representations
and warranties contained herein shall survive the execution and delivery of this
Agreement, any investigation at any time made by or on behalf of the Purchaser,
and the sale and purchase of the Shares and the Warrants and payment therefor.
8.2 Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and do not constitute a part of
this Agreement.
8.3 Choice of Law. It is the intention of the parties that the
internal laws of the State of New York, without regard to the body of law
controlling conflicts of law, shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties set forth herein.
8.4 Counterparts. This Agreement may be executed concurrently in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.5 Assignment; Parties in Interest. This Agreement may not be
pledged, assigned or otherwise transferred by the Purchasers except by operation
of law but all the terms and provision of this Agreement shall be binding upon
and inure to the benefit of and be enforced by the successors in interest of the
parties hereto. Each successive transferee of the Purchasers shall be deemed to
be a Purchaser for the purpose of Section 5 of this Agreement.
8.6 Amendments. No amendment, modification, waiver, discharge or
termination of any provision of this Agreement nor consent to any departure by
the Purchasers or the Company therefrom shall in any event be effective unless
the same shall be in writing and signed by the party to be charged with
enforcement, and
10
then shall be effective only in the specific instance and for the purpose for
which given. No course of dealing between the parties hereto shall operate as an
amendment of, or a waiver of any right under, this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized representatives as of
the day and year first above written.
Nastech Pharmaceutical Company Inc.
By:________________________
Title:_______________________
[PURCHASER SIGNATURE PAGE CONTINUES ON THE FOLLOWING PAGE]
11
PURCHASER SIGNATURE PAGE AND QUESTIONNAIRE
The undersigned Purchaser hereby executes the Stock and Warrant Purchase
Agreement with Nastech Pharmaceutical Company Inc. (the "Company") and hereby
authorizes this signature page to be attached to a counterpart of such document
executed by a duly authorized officer of the Company.
No. of Shares to be _______________________________________________
Purchased: ____________ Name of Purchaser (PLEASE PRINT OR TYPE)
No. of Shares Underlying
Warrants: _____________
Aggregate Purchase [SIGN HERE]
Price: $____________
By:________________________________________
Title: ____________________________________
Purchaser is a _______ qualified institutional buyer OR
_____ an accredited investor as defined in the Offering Memorandum
Name in which Shares and Warrants are to be registered:
__________________________________________
Address of registered holder: __________________________
Social Security or Tax ID No. of registered holder: __________________________
Contact name and telephone number regarding
Settlement and registration: __________________________
Name
__________________________
Telephone Number
Number of shares of common stock of the Company beneficially owned (meaning
shares owned or controlled or which the Purchaser has the right to acquire or
vote) by the Purchaser, other than the Shares and Warrants being purchased
pursuant hereto: ______________________________________
Have you or your organization had any position, office or other material
relationship with the Company within the past three years?
__________ Yes __________ No
Do you or your organization have any direct or indirect affiliation or
association with any NASD member?
_________ Yes __________ No
If yes to either of the last two questions, please indicate the nature of any
such relationships below:
12