Exhibit No. 99
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PURCHASE AGREEMENT
THIS AGREEMENT is made as of the ___ day of May, 2001, by and between
Trimeris, Inc., a corporation organized under the laws of the State of Delaware
(the "Company") with its principal offices at 4727 University Drive, Suite 100,
Durham, North Carolina 27707, and the purchaser whose name and address is set
forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. The Company has
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authorized the sale, subject to the terms and conditions of this Agreement, of
up to 1,500,000 shares (the "Shares") of common stock, par value $.001 per share
(the "Common Stock"), of the Company. The Company reserves the right to increase
or decrease the number of shares of Common Stock sold in this private placement
prior to the Closing Date.
SECTION 2. Agreement to Sell and Purchase the Shares. At the
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Closing (as defined in Section 3), the Company will sell to the Purchaser and
the Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, the number of Shares (at the purchase price) shown below:
Price Per
Number to Be Share in Aggregate
Purchased Dollars Price
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The Company proposes to enter into this same form of purchase
agreement with certain other investors (the "Other Purchasers") and expects to
complete sales of the Shares to them. The Purchaser and the Other Purchasers
are hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agent" shall mean Lehman Brothers Inc. If the Closing Date has not occurred on
or prior to the date that is 120 calendar days after the date hereof, the
Company's obligation to sell and the Purchaser's obligation to purchase the
Shares will expire as of such date.
SECTION 3. Delivery of the Shares at the Closing. The completion
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of the purchase and sale of the Shares (the "Closing") shall occur at the
offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New York
10038 as soon as practicable and as agreed by the parties hereto within three
business days following the execution of the Agreements, or on such later date
or at such different location as the parties shall agree in writing, but not
prior to the date that the conditions for Closing set forth below have been
satisfied or waived by the appropriate party (the "Closing Date"). The Closing
shall occur at a time to be agreed upon by
the Company and the Placement Agent and of which the Purchasers will be notified
by facsimile transmission or otherwise.
At the Closing, the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as designated by the Purchaser in writing, representing the number of
Shares set forth in Section 2 above and bearing an appropriate legend referring
to the fact that the Shares were sold in reliance upon the exemption from
registration under the Securities Act of 1933, as amended (the "Securities Act")
provided by Section 4(2) thereof and Rule 506 thereunder. The name(s) in which
the stock certificates are to be registered are set forth in the Stock
Certificate Questionnaire attached hereto as part of Appendix I. The Company's
obligation to complete the purchase and sale of the Shares and deliver such
stock certificate(s) to the Purchaser at the Closing 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 same-day funds in the full amount of the purchase
price for the Shares being purchased hereunder; (b) completion of the purchases
and sales under the Agreements with all of the Other Purchasers; and (c) the
accuracy of the representations and warranties made by the Purchasers and the
fulfillment of those undertakings of the Purchasers to be fulfilled prior to the
Closing. The Purchaser's obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be subject to
the condition that the representations and warranties made by the Company herein
are accurate in all material respects and that the Company has fulfilled, in all
material respects, all undertakings to be fulfilled prior to Closing. The
Purchaser's obligations hereunder are expressly not conditioned on the purchase
by any or all of the Other Purchasers of the Shares that the Other Purchasers
have agreed to purchase from the Company.
SECTION 4. Representations, Warranties and Covenants of the
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Company. The Company as of the date hereof represents and warrants to, and
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covenants with, the Purchaser as follows:
4.1 Organization and Qualification. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware and the Company is qualified to do business as a foreign
corporation in each jurisdiction in which qualification is required, except
where failure to so qualify would not reasonably be expected to have a Material
Adverse Effect (as defined herein). The Company has no Subsidiaries. True and
complete copies of the Company's Certificate of Incorporation and Bylaws have
been filed by the Company with the United States Securities and Exchange
Commission (the "Commission") and have been made available to the Purchaser.
The Company has all requisite power and authority and has all necessary
approvals, licenses, permits and authorizations to own, operate or lease its
properties and to carry on its business as now conducted and as proposed to be
conducted in the Confidential Private Placement Memorandum dated April 26, 2001
(including all exhibits and supplements thereto and amendments thereof, the
"Private Placement Memorandum"), except where the failure to have any such
approval, license, permit or authorization would not reasonably be expected to
have a Material Adverse Effect (as defined herein). For the purposes of this
Amendment, the term "Subsidiary" shall mean any (A) firm, corporation,
partnership, limited liability company, trust or other entity (a "Person") of
which the Company owns directly or indirectly through a subsidiary, nominee
arrangement or otherwise (1) at least a majority of the outstanding voting
capital stock (or other outstanding voting shares
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of beneficial interest) or (2) at least a majority of the partnership,
membership, joint venture or similar interests, or (B) partnership in which the
Company is a general partner.
4.2 Authorized Capital Stock. The authorized capital stock of the
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Company consists of 60,000,000 shares of Common Stock and 10,000,000 shares of
preferred stock, $0.001 par value per share ("Preferred Stock"). As of the
close of business on the date one business day prior to the date hereof, no
shares of Preferred Stock were issued and outstanding, and the information
relating to the Common Stock set forth on page 9 of the Private Placement
Memorandum was true and correct as of the close of business on the date one
business day prior to the date hereof as if such information had been provided
on such date; the issued and outstanding shares of the Company's Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws and
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Except as disclosed above or in
the Private Placement Memorandum, the Company does not have outstanding any
options to purchase, or any preemptive rights or other rights to subscribe for
or to purchase, any securities or obligations convertible into, or any contracts
or commitments to issue or sell, shares of its capital stock or any such
options, rights, convertible securities or obligations, or any obligation to
repurchase, redeem or otherwise acquire any outstanding security of the Company.
Except as referenced in the Private Placement Memorandum, there are no
stockholder agreements, voting agreements or similar agreements or arrangements
with respect to the Common Stock to which the Company is a party, or, to the
knowledge of the Company, between or among any of the Company's stockholders.
4.3 Issuance, Sale and Delivery of the Shares. The Shares have been
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duly authorized and, when issued, delivered and paid for in the manner set forth
in this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable. No preemptive rights or other rights to subscribe for or
purchase exist with respect to the issuance and sale of the Shares by the
Company pursuant to this Agreement. No stockholder of the Company has any right
(which has not been waived or has not expired by reason of lapse of time
following notification of the Company's intent to file the registration
statement to be filed by it pursuant to Section 7.1 (the "Registration
Statement")) to require the Company to register the sale of any shares owned by
such stockholder under the Securities Act in the Registration Statement. No
further approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale or registration of the
Shares by the Company as contemplated herein.
4.4 Due Execution, Delivery and Performance of this Agreement. The
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Company has full legal right, corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Company. The execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions herein contemplated will not violate any provision of the
organizational documents of the Company and will not result in the creation of
any lien, charge, security interest or encumbrance upon any assets of the
Company pursuant to the terms or provisions of, or will not conflict with,
result in the breach or violation of, or constitute, either by itself or upon
notice or the passage of time or both, a default under any agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which the Company is a party or by which the Company or any of its respective
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properties may be bound or affected and in each case which would have a material
adverse effect on the financial condition, properties, business, prospects or
results of operations of the Company (a "Material Adverse Effect") or, to the
Company's knowledge, any statute or any authorization, judgment, decree, order,
rule or regulation (collectively, "Laws") of any court or any foreign, federal,
state or local regulatory body, administrative agency or other governmental body
(each, a "Governmental Authority") applicable to the Company or any of its
respective properties. No consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental body is
required for the execution and delivery of this Agreement or the consummation of
the transactions contemplated by this Agreement, except for compliance with the
Blue Sky laws and federal securities laws applicable to the offering of the
Shares. Upon its execution and delivery, and assuming the valid execution
thereof by the Purchaser, this Agreement will constitute a valid and binding
obligation of the Company, enforceable 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 Company in Section 7.3 hereof may be held violative of public policy and
therefore legally unenforceable.
4.5 Accountants. KPMG LLP, who has expressed its opinion with
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respect to the consolidated financial statements to be included in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 2000 (the
"Form 10-K"), and incorporated by reference in the Registration Statement and
the Prospectus which forms a part thereof, has represented to the Company that
KPMG LLP is an independent accountant as required by the Securities Act and the
rules and regulations promulgated thereunder (the "Rules and Regulations"). The
financial statements of the Company and the related notes contained in the Form
10-K present fairly in all material respects the financial position of the
Company as of the dates indicated, and the results of operations and cash flows
for the periods specified therein. Except as specified in the notes thereto,
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. Such financial statements are
in all material respects in agreement with the books and records of the Company.
The Company keeps proper accounting records in which all material assets and
liabilities, and all material transactions, of the Company are recorded in
conformity with applicable accounting principles.
4.6 No Defaults. Except as disclosed in the Private Placement
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Memorandum, and except as to defaults, violations and breaches which
individually or in the aggregate would not be material to the Company, the
Company is not in violation or default of any provision of its certificate of
incorporation or bylaws, or in breach of or default with respect to any
provision of any agreement, judgment, decree, order, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which it is
a party or by which it or any of its properties are bound; and there does not
exist any state of fact which, with notice or lapse of time or both, would
constitute an event of default on the part of the Company as defined in such
documents, except such defaults which individually or in the aggregate would not
be material to the Company.
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4.7 Contracts. All material agreements to which the Company is a
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party and which are required to have been filed by the Company pursuant to the
Securities Act, the Exchange Act and/or the Rules and Regulations, including all
contracts described in the Private Placement Memorandum, have been filed by the
Company with the Commission pursuant to the requirements of the Securities Act
and/or the Exchange Act, as applicable, and the Rules and Regulations. As of
the date hereof, each such agreement is in full force and effect and is binding
on the Company and, to the Company's knowledge, is binding upon such other
parties, in each case in accordance with its terms, and neither the Company nor,
to the Company's knowledge, any other party thereto is in breach of or default
under any such agreement, which breach or default would have a Material Adverse
Effect. The Company has not received any written notice regarding the
termination of any such agreements.
4.8 No Actions. Except as disclosed in the Private Placement
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Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened to which the Company is or
may be a party or of which property owned or leased by the Company is or may be
the subject, which actions, suits or proceedings, individually or in the
aggregate, are reasonably expected to prevent or materially and adversely affect
the transactions contemplated by this Agreement or result in a material adverse
change in the financial condition, properties, business, prospects or results of
operations of the Company (a "Material Adverse Change"); and, to the Company's
knowledge, no labor disturbance by the employees of the Company exists, or is
imminent which is reasonably expected to have a Material Adverse Effect. The
Company is not party to or subject to the provisions of any material injunction,
judgment, decree or order of any court, regulatory body administrative agency or
other governmental body.
4.9 Properties. The Company has good title to all the properties and
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assets reflected as owned by it in the consolidated financial statements
included in the Private Placement Memorandum, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except (i) those, if any, reflected in
such consolidated financial statements, or (ii) those which are not material in
amount and do not adversely affect the use made and intended 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 its business. Except as disclosed in the Private Placement
Memorandum, the Company owns or leases all such properties as are necessary to
its operations as now conducted.
4.10 No Material Change. Since December 31, 2000 and except as
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described in or specifically contemplated by the Private Placement Memorandum,
(i) the Company has not incurred any material liabilities or obligations,
indirect, or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
or which could reasonably be expected to result in a material reduction in the
future earnings of the Company; (ii) the Company has not sustained any material
loss or interference with its businesses or properties from fire, flood,
windstorm, accident or other calamity not covered by insurance; (iii) the
Company has not paid or declared any dividends or other distributions with
respect to its capital stock and the Company is not in default in the payment of
principal or interest on any outstanding debt obligations; (iv) there has not
been any change in the capital stock of the Company other than the sale of the
Shares hereunder and shares or options issued pursuant to employee equity
incentive plans or purchase plans approved by the
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Company's Board of Directors, or any increase in indebtedness material to the
Company (other than in the ordinary course of business); (v) the Company has
conducted its business only in the ordinary course of business in accordance
with past practice; and (vi) there has not been a Material Adverse Change.
4.11 Intellectual Property. Except as disclosed in or specifically
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contemplated by the Private Placement Memorandum and to the Company's knowledge,
(i) the Company owns or has obtained valid and enforceable licenses or options
for the inventions, patent applications, patents, trademarks (both registered
and unregistered), trade names, copyrights and trade secrets necessary for the
conduct of the Company's business as currently conducted (collectively, the
"Intellectual Property"); and, (ii) (a) there are no third parties who have any
ownership rights to any Intellectual Property that is owned by, or has been
licensed to, the Company for the products described in the Private Placement
Memorandum that would preclude the Company from conducting its business as
currently conducted, except for the ownership rights of the owners of the
Intellectual Property licensed or optioned by the Company; (b) there are
currently no sales of any products that would constitute an infringement by
third parties of any Intellectual Property owned, licensed or optioned by the
Company; (c) there is no pending or threatened action, suit, proceeding or claim
by others challenging the rights of the Company in or to any Intellectual
Property owned, licensed or optioned by the Company, other than claims which
would not reasonably be expected to have a Material Adverse Effect; (d) there is
no pending or threatened action, suit, proceeding or claim by others challenging
the validity or scope of any Intellectual Property owned, licensed or optioned
by the Company, other than non-material actions, suits, proceedings and claims;
and (e) there is no pending or threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary right of others, other than non-
material actions, suits, proceedings and claims.
4.12 Compliance. The Company has not been advised, nor has reason to
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believe, that it is not conducting business in compliance with all applicable
laws, rules and regulations of the jurisdictions in which it is conducting its
business, including, without limitation, all applicable local, state and federal
environmental laws and regulations; in each case, except where failure to be in
compliance would not have a Material Adverse Effect.
4.13 Taxes. The Company has filed all necessary federal, state and
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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 is reasonably likely to
have a Material Adverse Effect.
4.14 Transfer Taxes. On the Closing Date, all stock transfer or other
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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 Purchaser 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 complied with.
4.15 Investment Company. The Company is not an "investment company"
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or an "affiliated person" of, or "promoter" or "principal underwriter" for an
investment company,
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within the meaning of the Investment Company Act of 1940, as amended, and will
conduct its business in a manner such that it will not become subject to such
Act.
4.16 Offering Materials. The Company has not distributed and will not
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distribute prior to the Closing Date any offering material in connection with
the offering and sale of the Shares other than the Private Placement Memorandum
or any amendment or supplement thereto. 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.
4.17 Insurance. The Company maintains insurance of the types, against
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such losses and in the amounts and with such insurers as are customary in the
Company's industry and otherwise reasonably prudent, 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.
4.18 Contributions. The Company has not at any time since its
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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.
4.19 Additional Information. The information contained in the
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following documents, which the Placement Agent has furnished to the Purchaser,
or will furnish prior to the Closing, does not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, as of their respective filing dates or,
if amended, as so amended:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 2000;
(b) the draft Registration Statement;
(c) the Private Placement Memorandum (other than the Appendices);
and
(d) all other documents, if any, filed by the Company with the
Commission since March 31, 2000 pursuant to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the Rules and Regulations.
4.20 Legal Opinion. Prior to the Closing, Wilmer, Cutler & Pickering,
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counsel to the Company, will deliver its legal opinion to the Placement Agent
substantially in the form
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attached hereto as Exhibit A. Such opinion shall also state that each of the
Purchasers may rely thereon as though it were addressed directly to such
Purchaser.
4.21 Intellectual Property Opinion. Prior to the Closing, Pennie &
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Edmonds LLP, patent counsel for the Company, will deliver its legal opinion to
the Placement Agent substantially in the form attached hereto as Exhibit B.
Such opinion shall state that each of the Purchasers may rely thereon as though
it were addressed directly to such Purchaser.
4.22 Commission Reports. The Company has filed with the Commission
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all documents required to be filed with the Commission since May 1, 2000.
Except to the extent that they may have been subsequently amended or otherwise
modified prior to the date hereof by subsequent reports or filings, as of their
respective filing dates, all such filings complied in all material respects with
the requirements of the Securities Act or the Exchange Act, as applicable, and
the Rules and Regulations. Except to the extent they may have been subsequently
amended or otherwise modified prior to the date hereof by subsequent reports or
filings, as of their respective filing dates, each such filing did not contain
any untrue statement of 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.
4.23 Rule 144. The Company will file, on a timely basis, the reports
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required to be filed by it under the Securities Act and the Exchange Act and the
Rules and Regulations (or, if the Company is not required to file such reports
it will, upon the request of any holder of the Shares purchased hereunder, make
publicly available such information as necessary to permit the sales of such
Shares pursuant to Rule 144 under the Securities Act), and it will take such
further action as any such holder may reasonably request to enable such holder
to sell Shares purchased hereunder without registration under the Securities Act
within the limitation of the exemption provided by (A) Rule 144 under the
Securities Act, as amended from time to time; or (B) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of a holder,
the Company will deliver to such holder a written statement as to whether it has
complied with such information and requirements.
4.24 Form S-3 Eligibility. As of the date hereof, the Company meets
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the requirements for use of Form S-3 for registration of the resale of the
Shares as contemplated herein and in the Private Placement Memorandum.
4.25 Regulatory Matters.
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(a) As to each product subject to the jurisdiction of the U.S.
Food and Drug Administration ("FDA") under the Federal Food, Drug and
Cosmetic Act and the Regulations thereunder ("FDCA") (each such
product, a "Regulated Product") that is manufactured, tested,
distributed and/or marketed by the Company, such Regulated Product is
being manufactured, tested, distributed and/or marketed in substantial
compliance with all applicable requirements under FDCA and similar
state and foreign laws and regulations, including but not limited to
those relating to investigational use, premarket clearance, good
manufacturing practices, labeling, advertising, record keeping, filing
of reports
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and security, except where lack of compliance would not have a
Material Adverse Effect.
(b) The Company has not received any written notices or
correspondence from the FDA or any other Governmental Authority
requiring the termination, suspension or material modification of any
tests or evaluations conducted on behalf of the Company.
4.26 Certificate. At the Closing, the Company will deliver to the
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Purchaser a certificate executed by the chief executive officer, the chief
financial or accounting officer or the chief business officer of the Company,
dated the Closing Date, in form and substance reasonably satisfactory to the
Purchaser, to the effect that the representations and warranties of the Company
set forth in this Section 4 are true and correct as of the date of this
Agreement and as of the Closing Date, and the Company has complied in all
material respects with all the agreements and satisfied all the conditions
herein on its part to be performed or satisfied on or prior to such Closing
Date.
SECTION 5. Representations, Warranties and Covenants of the
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Purchaser.
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(a) The Purchaser represents and warrants to, and covenants
with, the Company that: (i) the Purchaser is knowledgeable,
sophisticated and experienced in making, and is qualified to make,
decisions with respect to investments in shares representing an
investment decision like that involved in the purchase of the Shares,
including investments in securities issued by the Company, and has
requested, received, reviewed and considered all information it deems
relevant in making an informed decision to purchase the Shares; (ii)
the Purchaser is acquiring the number of Shares set forth in Section 2
above 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 persons regarding the distribution of such Shares (this
representation and warranty not limiting the Purchaser's right to sell
pursuant to the Registration Statement or, other than with respect to
any claims arising out of a breach of this representation and
warranty, the Purchaser's right to indemnification under Section 7.3);
(iii) the Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with the Securities Act and the Rules and
Regulations nor will Purchaser engage in any short sale which results
in a disposition of any of the Shares by Purchaser; (iv) the Purchaser
has completed or caused to be completed the Registration Statement
Questionnaire attached hereto as part of Appendix I, for use in
preparation of the Registration Statement, and the answers thereto are
true and correct as of the date hereof and will be true and correct as
of the effective date of the Registration Statement (provided that
Purchaser shall be entitled to update such information prior to the
effective date of the Registration Statement); (v) the Purchaser has,
in connection with its decision to purchase the number of Shares set
forth in Section 2 above, relied solely upon the Private Placement
Memorandum and the documents included therein and the
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representations and warranties of the Company contained herein; and
(vi) the Purchaser is an "accredited investor" within the meaning of
Rule 501(a) of Regulation D promulgated under the Securities Act; and
(vii) the Purchaser agrees to notify the Company immediately of any
change in any of the foregoing information until such time as the
Purchaser has sold all of its Shares or the Company is no longer
required to keep the Registration Statement effective.
(b) The Purchaser understands that the Shares are being offered
and sold to it in reliance upon specific exemptions from the
registration requirements of Securities Act, the Rules and Regulations
and state securities laws and that the Company is relying upon the
truth and accuracy of, and the Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein in order to determine
the availability of such exemptions and the eligibility of the
Purchaser to acquire the Shares.
(c) The Purchaser understands that the information contained in
the Private Placement Memorandum is strictly confidential and
proprietary to the Company and has been prepared from the Company's
publicly available documents and other information and is being
submitted to the Purchaser solely for such Purchaser's confidential
use. The Purchaser agrees to use the information contained in the
Private Placement Memorandum for the sole purpose of evaluating a
possible investment in the Shares and the Purchaser hereby
acknowledges that it is prohibited from reproducing or distributing
the Private Placement Memorandum, this Purchase Agreement, or any
other offering materials, in whole or in part, or divulging or
discussing any of their contents except for use internally and by its
legal counsel and except as required by law or legal process.
Further, the Purchaser understands that the existence and nature of
all conversations and presentations, if any, regarding the Company and
this offering must be kept strictly confidential until such time as
the Company makes a public announcement of the offering, which will
occur no later than two business days following the Closing Date. The
Purchaser understands that the federal securities laws impose
restrictions on trading based on information regarding this offering.
In addition, the Purchaser hereby acknowledges that unauthorized
disclosure of information regarding this offering may cause the
Company to violate Regulation FD.
(d) The Purchaser understands that its investment in the Shares
involves a significant degree of risk and that the market price of the
Common Stock has been and continues to be volatile and that no
representation is being made as to the future value of the Common
Stock. The Purchaser has the knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of an investment in the Shares and has the ability to bear the
economic risks of an investment in the Shares.
(e) The Purchaser understands that no Governmental Authority has
passed upon or made any recommendation or endorsement of the Shares.
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(f) The Purchaser understands that, until such time as the
Shares may be sold by non-affiliates of the Company pursuant to Rule
144 under the Securities Act without any restriction as to the number
of securities as of a particular date that can then be immediately
sold, the Shares may bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against
transfer of the certificates for the Shares):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities may not be sold, transferred or assigned in the
absence of an effective registration statement for the securities
under said Act, or an opinion of counsel, in form, substance and
scope reasonably acceptable to the Company, that registration is
not required under said Act or unless sold pursuant to Rule 144
under said Act."
(g) The Purchaser's principal executive offices are in the
jurisdiction set forth immediately below the Purchaser's name on the
signature pages hereto.
(h) The Purchaser hereby covenants with the Company not to make
any sale of the Shares under the Registration Statement without
effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied, and the Purchaser acknowledges and
agrees that such Shares are not transferable on the books of the
Company unless the certificate submitted to the transfer agent
evidencing the Shares is accompanied by a separate Purchaser's
Certificate of Subsequent Sale: (i) in the form of Appendix II hereto,
(ii) executed by an officer of, or other authorized person designated
by, the Purchaser, and (iii) to the effect that (A) the Shares have
been sold in accordance with the Registration Statement, the
Securities Act and any applicable state securities or blue sky laws
and (B) the requirement of delivering a current prospectus has been
satisfied. The Purchaser 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 the Registration Statement has been filed by the Company and
declared effective by the Commission, or such time as such prospectus
has been supplemented, or until such time as the Company has filed an
appropriate report with the Commission pursuant to the Exchange Act.
The Purchaser hereby covenants that it will not sell any Shares
pursuant to said prospectus during the period commencing at the time
at which the Company gives the Purchaser written notice of the
suspension of the use of said prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may
thereafter effect sales pursuant to said prospectus, provided,
however, that the Company will use its reasonable efforts to cause the
use of the prospectus so suspended to be promptly resumed.
11
(i) The Purchaser further represents and warrants to, and
covenants with, the Company that (i) the Purchaser 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) upon the execution and delivery of this
Agreement, and assuming the valid execution thereof by the Company,
this Agreement shall constitute a valid and binding obligation of the
Purchaser, enforceable 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 Purchaser in Section
7.3 hereof may be held violative of public policy and therefore
legally unenforceable.
SECTION 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 Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
SECTION 7. Registration of the Shares; Compliance with the
-----------------------------------------------
Securities Act.
- --------------
7.1 Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) as soon as reasonably practicable, but in no event later
than 15 days following the Closing Date, prepare and file with the
Commission the Registration Statement on Form S-3 or other available
form relating to the sale of the Shares by the Purchaser and the Other
Purchasers from time to time on the Nasdaq National Market or the
facilities of any national securities exchange on which the Common
Stock is then traded or in privately-negotiated transactions;
(b) use commercially reasonable efforts, subject to receipt of
necessary information from the Purchasers, to cause the Registration
Statement to become effective promptly following clearance by the
Commission and, in any event, use its commercially reasonable efforts,
subject to receipt of necessary information from the Purchasers, to
cause the Commission to declare the Registration Statement effective
within 75 days after the Closing Date;
(c) use its commercially reasonable efforts to promptly prepare
and file with the Commission such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith
as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of the Shares (subject to the
Company receiving notification and all necessary information from the
selling stockholders described therein and their respective
transferees, assignees and donees) and keep the Registration Statement
effective
12
and free from any material misstatement or omission until the date on
which the Shares may be resold by non-affiliates of the Company
without registration by reason of Rule 144(k) under the Securities Act
or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement (and to each underwriter,
if any, of such Shares) such number of copies of prospectuses and all
amendments thereof or supplements thereto and such other documents as
the Purchaser may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares by the
Purchaser; provided, however, that the obligation of the Company to
-------- -------
deliver copies of prospectuses to the Purchaser shall be subject to
the receipt by the Company of reasonable assurances from the Purchaser
that the Purchaser 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;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser and keep
such qualification or registration in effect for so long as the
Registration Statement is in effect; 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; and
(f) notify the holder of any Shares purchased hereunder at any
time (1) when a prospectus or any prospectus supplement or post-
effective amendment with respect to the Registration Statement is
proposed to be filed; (2) when the Registration Statement has become
effective; (3) of any request by the Commission or any other
Governmental Authority for amendments or supplements to the
Registration Statement or related prospectus or for additional
information; (4) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceeding for that purpose; (5) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any Shares for sale
in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose; (6) of the happening of (but not the
nature or details of) any event as a result of which the prospectus
included in the Registration Statement, as then in effect, includes an
untrue statement of material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made;
(g) provide a transfer agent and registrar for all Shares
covered by the Registration Statement not later than the effective
date of the Registration Statement;
(h) provide that all Shares covered by the Registration
Statement will be listed on the Nasdaq National Market or other
securities exchange or
13
automated inter-dealer quotation system on which the Company's Common
Stock is then listed or traded.
(i) bear all expenses in connection with the procedures in
paragraphs (a) through (h) of this Section 7.1 and the registration of
the Shares pursuant to the Registration Statement, other than fees and
expenses, if any, of counsel or other advisers to the Purchaser or the
Other Purchasers or underwriting discounts, brokerage fees and
commissions incurred by the Purchaser or the Other Purchasers, if any.
The Company understands that the Purchaser disclaims being an
underwriter, but the Purchaser being deemed an underwriter shall not relieve the
Company of any obligations it has hereunder. A draft of the proposed form of the
Registration Statement is included in the Private Placement Memorandum and a
questionnaire related thereto to be completed by the Purchaser is attached
hereto as Appendix I.
7.2 Transfer of Shares After Registration. The Purchaser 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
in the section titled "Plan of Distribution," or in compliance with Rule 144 or
another exemption from registration and that it will promptly notify the Company
of any changes in the information set forth in the Registration Statement
regarding the Purchaser or its plan of distribution.
7.3 Indemnification. For the purpose of this Section 7.3:
---------------
(i) the term "Purchaser/Affiliate" shall mean any affiliates of
the Purchaser and any person who controls the Purchaser or
any affiliate of the Purchaser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act;
and
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or
relating to, and any document incorporated by reference in,
the Registration Statement referred to in Section 7.1.
(a) The Company agrees to indemnify and hold harmless the
Purchaser and each Purchaser/Affiliate, against any losses, claims,
damages, liabilities or expenses, joint or several, to which the
Purchaser or such Purchaser/Affiliates may become subject, under the
Securities Act, the Exchange Act, or any other federal or state
statutory Law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with
the written consent of the Company), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, including the prospectus, financial
statements and schedules, and all other documents filed
14
as a part thereof, as amended at the time of effectiveness of the
Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of
Rule 430A, or pursuant to Rule 434, of the Rules and Regulations, or
the prospectus, in the form first filed with the Commission pursuant
to Rule 424(b) of the Regulations, or filed as part of the
Registration Statement at the time of effectiveness if no Rule 424(b)
filing is required (the "Prospectus"), or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state in any of them a material fact required to be stated
therein or necessary to make the statements in the Registration
Statement or any amendment or supplement thereto not misleading or in
the Prospectus or any amendment or supplement thereto not misleading
in the light of the circumstances under which they were made, or arise
out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this
Agreement, or any failure of the Company to perform its obligations
hereunder or under Law, and will reimburse the Purchaser and each such
Purchaser/Affiliate for any legal and other expenses as such expenses
are reasonably incurred by the Purchaser or such Purchaser/Affiliate
in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however, that the Company will not be liable in any such
-------- -------
case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Purchaser expressly
for use therein, or (ii) the failure of the Purchaser to comply with
the covenants and agreements contained in Sections 5(h) or 7.2 hereof
respecting the sale of the Shares, or (iii) the inaccuracy of any
representations made by the Purchaser herein or (iv) any statement or
omission in any Prospectus that is corrected in any subsequent
Prospectus that was delivered to the Purchaser prior to the pertinent
sale or sales by the Purchaser.
(b) The Purchaser will indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages,
liabilities or expenses to which the Company, each of its directors,
each of its officers who signed the Registration Statement or
controlling person may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written
consent of the Purchaser) insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon (i) any failure to comply with
the covenants and agreements contained in Sections 5(h) or 7.2 hereof
respecting the sale of the Shares or (ii) the inaccuracy of any
representation made by the Purchaser herein or (iii) any untrue or
alleged untrue statement of any material fact contained in the
15
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements in the Registration
Statement or any amendment or supplement thereto not misleading or in
the Prospectus or any amendment or supplement thereto not misleading
in the light of the circumstances under which they were made, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by the Purchaser expressly for
use therein, and will reimburse the Company, each of its directors,
each of its officers who signed the Registration Statement or
controlling person for any legal and other expense reasonably incurred
by the Company, each of its directors, each of its officers who signed
the Registration Statement or controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this
Section 7.3 of notice of the threat or commencement of any action,
such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this Section 7.3 promptly
notify the indemnifying party in writing thereof; but the omission so
to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution
or otherwise than under the indemnity agreement contained in this
Section 7.3 or to the extent it is not prejudiced as a result of such
failure. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all
other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include
-------- -------
both the indemnified party, based upon the advice of such indemnified
party's counsel, and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be a conflict of
interest between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7.3 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal
defenses in accordance with
16
the proviso to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by such indemnifying party in
the case of paragraph (a), representing the indemnified parties who
are parties to such action, plus local counsel, if appropriate) or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of action,
in each of which cases the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to
or otherwise insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) of this Section 7.3 in respect to any
losses, claims, damages, liabilities or expenses referred to herein,
then each applicable indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the placement of the
Common Stock contemplated by this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but the relative fault of the
Company and the Purchaser in connection with the statements or
omissions or inaccuracies in the representations and warranties in
this Agreement that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Purchaser on the other shall be deemed to be in the
same proportion as the amount paid by the Purchaser to the Company
pursuant to this Agreement for the Shares purchased by the Purchaser
that were sold pursuant to the Registration Statement bears to the
difference (the "Difference") between the amount the Purchaser paid
for the Shares that were sold pursuant to the Registration Statement
and the amount received by the Purchaser from such sale. The relative
fault of the Company on the one hand and the Purchaser on the other
shall be determined by reference to, among other things, whether the
untrue or alleged statement of a material fact or the omission or
alleged omission to state a material fact or the inaccurate or the
alleged inaccurate representation and/or warranty relates to
information supplied by the Company or by the Purchaser and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in paragraph (c) of this
Section 7.3, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action
or claim. The provisions set forth in paragraph (c) of this Section
7.3 with respect to the notice of the threat or commencement of any
threat or action shall apply if a claim for contribution is to be made
under this paragraph (d); provided, however, that no additional notice
-------- --------
shall be required with respect to
17
any threat or action for which notice has been given under paragraph
(c) for purposes of indemnification. The Company and the Purchaser
agree that it would not be just and equitable if contribution pursuant
to this Section 7.3 were determined solely by pro rata allocation
(even if the Purchaser were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 7.3, the Purchaser
shall not be required to contribute any amount in excess of the amount
by which the Difference exceeds the amount of any damages that the
Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
7.4 Termination of Conditions and Obligations. The conditions
-----------------------------------------
precedent imposed by Section 5 or Section 7.2 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares upon
the passage of two years from the Closing or at such time as an opinion of
counsel reasonably satisfactory in form and substance to the Company shall have
been rendered to the effect that such conditions are not necessary in order to
comply with the Securities Act.
7.5 Information Available. So long as the Registration Statement is
---------------------
effective covering the resale of Shares owned by the Purchaser, the Company will
furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of
the Company's Annual Report to Stockholders, within 150 days after the
end of each fiscal year of the Company), one copy of (i) its Annual
Report to Stockholders (which Annual Report shall contain financial
statements audited in accordance with US generally accepted accounting
principles by a national firm of certified public accountants), (ii)
if not included in substance in the Annual Report to Stockholders,
upon the request of the Purchaser, its Annual Report on Form 10-K,
(iii) upon the request of the Purchaser, its Quarterly Reports on Form
10-Q, (iv) upon the request of the Purchaser, its Current Reports on
Form 8-K, and (v) a full copy of the particular Registration Statement
covering the Shares (the foregoing, in each case, excluding exhibits);
(b) upon the request of the Purchaser, all exhibits excluded by
the parenthetical to subparagraph (a)(v) of this Section 7.5; and
(c) upon the request of the Purchaser, a reasonable number of
copies of the prospectuses to supply to any other party requiring such
prospectuses;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser and/or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares.
18
SECTION 8. Broker's Fee. The Purchaser acknowledges that the Company
------------
intends to pay to the Placement Agent a fee in respect of the sale of the Shares
to the Purchaser. Each of the parties hereto hereby represents that, on the
basis of any actions and agreements by it, there are no other brokers or finders
entitled to compensation in connection with the sale of the Shares to the
Purchaser.
SECTION 9. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
Trimeris, Inc.
4727 University Drive, Suite 100
Durham, NC 27707
Attention: Robert R. Bonczek
Facsimile: (919) 419-1816
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street
Washington, D.C. 20037-1420
Attention: John B. Watkins, Esq.
Facsimile: (410) 986-2828
or to such other person at such other place as the Company
shall designate to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the
end of this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
SECTION 10. Changes. This Agreement may not be modified or amended
-------
except pursuant to an instrument in writing signed by the Company and the
Purchaser.
SECTION 11. 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.
SECTION 12. Severability. In case any provision contained in this
------------
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
19
SECTION 13. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York and the federal
law of the United States of America.
SECTION 14. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties. Facsimile signatures shall be deemed
original signatures.
SECTION 15. Entire Agreement. This Agreement and the instruments
----------------
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
SECTION 16. Third Party Beneficiaries. This Agreement is intended
-------------------------
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
SECTION 17. Assignment. This Agreement and the rights of the Purchaser
----------
hereunder may not be assigned by Purchaser without the prior written consent of
the Company (except (x) by operation of law; (y) by the Purchaser to its wholly
owned subsidiary; or (z) by an investment advisor to a fund for which it is the
advisor or by or among funds that are under common control, provided that such
assignee agrees to be bound by the terms of this Agreement) and shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
permitted successors, heirs and legal representatives.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
TRIMERIS, INC.
By:_________________________________
Name:
Title:
Print or Type:
Name of Purchaser
(Individual or Institution):
_________________________________
20
Name of Individual representing
Purchaser (if an Institution):
_________________________________
Title of Individual representing
Purchaser (if an Institution):
_________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser:
_________________________________
Address: ___________________________
Telephone: ___________________________
Facsimile: ___________________________
21
SUMMARY INSTRUCTION SHEET FOR PURCHASER
---------------------------------------
(to be read in conjunction with the entire
Purchase Agreement which follows)
A. Complete the following items on BOTH Purchase Agreements:
1. Page 18 - Signature:
(i) Name of Purchaser (Individual or Institution)
(ii) Name of Individual representing Purchaser (if an Institution)
(iii) Title of Individual representing Purchaser (if an Institution)
(iv) Signature of Individual Purchaser or Individual representing
Purchaser
2. Appendix I - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire.
3. Return BOTH properly completed and signed Purchase Agreements
including the properly completed Appendix I to:
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attention: Peter Bennett
B. Instructions regarding the transfer of funds for the purchase of Shares
will be sent by facsimile to the Purchaser by the Placement Agent at a
later date.
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective, as described in the Purchase
Agreement, the Purchaser:
(i) must deliver a current prospectus of the Company to the buyer
(prospectuses must be obtained from the Company at the
Purchaser's request); and
(ii) must send a letter in the form of Appendix II to the Company so
that the Shares may be properly transferred.
Appendix I
TRIMERIS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
- -----------------------------------
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be
registered in (this is the name that will appear on
your stock certificate(s)). You may use a
nominee name if appropriate: ____________________
2. The relationship between the Purchaser of the
Shares and the Registered Holder listed
in response to item 1 above: ____________________
3. The mailing address of the Registered Holder
listed in response to item 1 above: ____________________
____________________
____________________
____________________
4. The Social Security Number or Tax Identification
Number of the Registered Holder listed
in response to item 1 above: ____________________
Appendix I
TRIMERIS, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the number of shares that you or your organization
will beneficially own immediately after Closing, including those Shares
purchased by you or your organization pursuant to this Purchase Agreement and
those shares purchased by you or your organization through other transactions:
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
4. Are you (i) an NASD Member (see definition), (ii) a Controlling
(see definition) shareholder of an NASD Member, (iii) a Person Associated with a
Member of the NASD (see definition), or (iv) an Underwriter or a Related Person
(see definition) with respect to the proposed offering; or (b) do you own any
shares or other securities of any NASD Member not purchased in the open market;
or (c) have you made any outstanding subordinated loans to any NASD Member?
Answer: [_] Yes [_] No If "yes," please describe below
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
NASD Member. The term "NASD member" means either any broker or dealer
-----------
admitted to membership in the National Association of Securities Dealers, Inc.
("NASD"). (NASD Manual, By-laws Article I, Definitions)
Control. The term "control" (including the terms "controlling," "controlled
-------
by" and "under common control with") means the possession, direct or indirect,
of the power, either individually or with others, to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise. (Rule 405 under the
Securities Act of 1933, as amended)
Person Associated with a member of the NASD. The term "person associated
-------------------------------------------
with a member of the NASD" means every sole proprietor, partner, officer,
director, branch manager or executive representative of any NASD Member, or any
natural person occupying a similar status or performing similar functions, or
any natural person engaged in the investment banking or securities business who
is directly or indirectly controlling or controlled by a NASD Member, whether or
not such person is registered or exempt from registration with the NASD pursuant
to its bylaws. (NASD Manual, By-laws Article I, Definitions)
Underwriter or a Related Person. The term "underwriter or a related person"
-------------------------------
means, with respect to a proposed offering, underwriters, underwriters' counsel,
financial consultants and advisors, finders, members of the selling or
distribution group, and any and all other persons associated with or related to
any of such persons. (NASD Interpretation)
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APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
The undersigned, [an officer of, or other person duly authorized by]
______________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of
the shares evidenced by the attached certificate, and as such,
sold such shares on __________________ in accordance with
[date]
Registration Statement number _____________________________________
[fill in the number of or otherwise
________________________________ and the requirement of delivering a
identify Registration Statement]
current prospectus by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or
Institution): ______________________
Name of Individual
Representing
Purchaser (if an
Institution) ______________________
Title of Individual
Representing
Purchaser (if an
Institution): ______________________
Signature by:
Individual Purchaser
or Individual repre-
senting Purchaser: ______________________
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