Exhibit 4.1
Medarex, Inc.
2.25% Convertible Senior Notes
due 2011
Purchase
Agreement
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April 27, 2004
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Goldman, Sachs & Co.,
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J.P. Morgan Securities
Inc.,
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c/o Goldman, Sachs &
Co.,
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85 Broad Street,
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New York, New York 10004.
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Ladies and Gentlemen:
Medarex, Inc., a New Jersey
corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the
Purchasers named in Schedule I hereto (the
“Purchasers”) an aggregate of $150,000,000 principal
amount of the 2.25% Convertible Senior Notes due 2011
(“Convertible Notes”), convertible into shares of
Common Stock, $0.01 par value per share (“Stock”), of
the Company specified above (the “Firm Securities”)
and, at the election of the Purchasers, up to an aggregate of
$50,000,000 additional aggregate principal amount of the
Convertible Notes (the “Optional Securities”) (the Firm
Securities and the Optional Securities which the Purchasers elect
to purchase pursuant to Section 2 hereof are herein
collectively called the “Securities”).
1.
The Company
represents and warrants to, and agrees with, each of the Purchasers
that:
(a)
A preliminary
offering circular, dated April 26, 2004 (the
“Preliminary Offering Circular”), and an offering
circular, dated April 27, 2004 (the “Offering
Circular”), have been prepared, and together with the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2003, which is incorporated by reference in
the Offering Circular, are being furnished in connection with the
offering of the Securities and shares of the Stock issuable upon
conversion thereof. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to and
include the Company’s most recent Annual Report on Form 10-K
and all subsequent documents filed with the United States
Securities and Exchange Commission (the “Commission”)
pursuant to Section 13(a), 13(c), 14 or 15(d) of the United
States Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or prior to the date of the
Preliminary Offering Circular or the Offering Circular, as the case
may be, and any reference to the Preliminary Offering Circular or
the Offering Circular, as the case may be, as amended or
supplemented, as of any specified date, shall be deemed to include
(i) any documents filed with the Commission pursuant to
Section 13(a), 13(c),
14 or 15(d) of
the Exchange Act after the date of the Preliminary Offering
Circular or the Offering Circular, as the case may be, and prior to
such specified date and (ii) any Additional Issuer Information (as
defined in Section 5(f)) furnished by the Company prior to the
completion of the distribution of the Securities; and all documents
filed under the Exchange Act and so deemed to be included in the
Preliminary Offering Circular or the Offering Circular, as the case
may be, or any amendment or supplement thereto are hereinafter
called the “Exchange Act Reports”. The Exchange
Act Reports, when they were or are filed with the Commission,
conformed or will conform in all material respects to the
applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder in effect on
such dates. The Preliminary Offering Circular or the Offering
Circular and any amendments or supplements thereto and the Exchange
Act Reports did not and will not, as of their respective dates,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through Goldman, Sachs &
Co. expressly for use therein;
(b)
Neither the
Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included in the Offering
Circular any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Offering Circular; and, since the respective
dates as of which information is given in the Offering Circular,
there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material
adverse change, or any development, involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the
Offering Circular;
(c)
The Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of New Jersey, with power
and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Circular, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the
Company has been duly incorporated or organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(d)
The Company has
an authorized capitalization as set forth in the Offering Circular,
and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; the shares of Stock initially issuable upon
conversion of the Securities (“Conversion Stock”) have
been duly and validly authorized and reserved for issuance and,
when issued and delivered in accordance with the provisions of the
Securities and the Indenture referred to below, will be duly and
validly issued, fully paid and non-assessable and will conform to
the description of the Stock contained in the Offering Circular;
and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and (except for directors’
qualifying shares) are owned directly or
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indirectly by the
Company, free and clear of all liens, encumbrances, security
interests, equities or claims;
(e)
The Securities
have been duly authorized and, when issued and delivered pursuant
to this Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
indenture to be dated as of May 3, 2004 (the
“Indenture”) between the Company and Wilmington Trust
Company, as Trustee (the “Trustee”), under which they
are to be issued, which will be substantially in the form
previously delivered to you; the Indenture has been duly authorized
and, when executed and delivered by the Company and the Trustee,
the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Securities and the Indenture will conform in all material respects
to the descriptions thereof in the Offering Circular and will be in
substantially the form previously delivered to you;
(f)
None of the
transactions contemplated by this Agreement (including, without
limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations G, T, U, and X of the
Board of Governors of the Federal Reserve System;
(g)
Prior to the date
hereof, neither the Company nor any of its affiliates has taken any
action which is designed to or which has constituted or which might
have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Securities;
(h)
The issue and
sale of the Securities and the compliance by the Company with all
of the provisions of the Securities, the Indenture, the
Registration Rights Agreement (as hereinafter defined in
Section 1(s) hereof) and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except for any
such conflict, breach, violation or default which would not have a
material adverse effect on the business, results of operation or
financial condition of the Company and its subsidiaries, taken as a
whole (a “Material Adverse Effect”), nor will such
action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any existing statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement, the Registration
Rights Agreement or the Indenture, except for the filing of a
notice on Form D and a registration statement by the Company with
the Commission pursuant to the United States Securities Act of
1933, as amended (the “Act”), pursuant to Regulation D
promulgated under the Act and Section 5(l) hereof and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers;
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(i)
Neither the
Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or By-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound which
would individually or in the aggregate have a Material Adverse
Effect;
(j)
The statements
set forth in the Offering Circular under the captions
“Description of Notes” and “Description of
Capital Stock”, insofar as they purport to constitute a
summary of the terms of the Securities and the Stock, under the
caption “Certain United States Federal Income Tax
Consequences”, and under the caption
“Underwriting” (other than the statements made therein
in conformity with and in reliance on written information furnished
by the Purchasers expressly for use therein) and “Risk
Factors — We depend on patents and proprietary rights”
and in the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 under the captions
“Business — Intellectual Property” and
“— Regulatory Issues”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and complete in all material
respects;
(k)
Other than as set
forth in the Offering Circular, there are no court, arbitration,
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(l)
When the
Securities are issued and delivered pursuant to this Agreement, the
Securities will not be of the same class (within the meaning of
Rule 144A under the Act) as securities which are listed on a
national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(m)
The Company is
subject to Section 13 or 15(d) of the Exchange
Act;
(n)
The Company is
not, and after giving effect to the offer and sale of the
Securities will not be, an “investment company”, as
such term is defined in the United States Investment Company Act of
1940, as amended (the “Investment Company
Act”);
(o)
Neither the
Company, nor any person acting on its or their behalf has offered
or sold the Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the
Act;
(p)
Except as
disclosed in the Offering Circular, within the preceding six
months, neither the Company nor any other person acting on behalf
of the Company has offered or sold to any person any Securities, or
any securities of the same or a similar class as the Securities,
other than Securities offered or sold to the Purchasers
hereunder. The Company will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in Rule 902
under the Act) of any Securities or any substantially similar
security issued by the Company, within six months subsequent to the
date on which the distribution of the Securities has been completed
(as notified to the Company by Goldman, Sachs & Co.), is
made
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under
restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the
United States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the
Securities Act;
(q)
Neither the
Company nor any of its affiliates does business with the government
of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes;
(r)
Ernst &
Young LLP, who have audited certain financial statements of
the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(s)
The Registration
Rights Agreement between the Company and the Purchasers to be dated
as of May 3, 2004 (the “Registration Rights
Agreement”) has been duly authorized and, when executed and
delivered by the Company (assuming due authorization, execution and
delivery by the Purchasers), will constitute a valid and legally
binding agreement of the Company enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; and the Registration Rights Agreement will conform in
all material respects to the description thereof in the Offering
Circular;
(t)
Except as
disclosed in the Offering Circular, no holder of any security of
the Company (other than the Securities and the Conversion Stock)
has or will have any right to require the registration of such
security by virtue of any transactions contemplated by this
Agreement or the Registration Rights Agreement other than any such
right that has been expressly waived in writing;
(u)
The Company and
its subsidiaries own or possess or can acquire on reasonable terms
adequate licenses or other rights to use the patents and patent
applications, copyrights, trademarks, service marks, trade names,
technology and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary rights) necessary in any
material respect to conduct their business in the manner described
in the Offering Circular (collectively, the “Company
Intellectual Property”); and except as disclosed in the
Offering Circular, neither the Company nor any of its subsidiaries
has received any notice of infringement (and the Company does not
know of any such infringement) of asserted rights of others with
respect to the Company Intellectual Property, which would
reasonably be expected to result in any Material Adverse
Effect;
(v)
The Company and
its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their business as
presently conducted, including without limitation, all such
certificates, authorizations and permits required by the United
States Food and Drug Administration (the “FDA”), the
Nuclear Regulatory Commission (the “NRC”) or any other
federal, state or foreign agencies or bodies engaged in the
regulation of pharmaceuticals or biohazardous substances, except
where the failure to possess such certificates, authorizations and
permits would not, singly or in the aggregate, have a Material
Adverse Effect; neither the Company nor any subsidiary has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect; the Company and its subsidiaries are in compliance in all
material respects with all applicable federal, state, local and
foreign laws, regulations, orders and decrees governing its
business as currently conducted, including without limitation, all
regulations prescribed
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by the FDA, the
NRC or any other federal, state or foreign agencies or bodies
engaged in the regulation of pharmaceuticals, biohazardous
substances or radioactive materials, except where noncompliance
would not, singly or in the aggregate, have a Material Adverse
Effect; and to the knowledge of the Company, other than as set
forth in the Offering Circular, no prospective change in any
applicable federal, state, local or foreign laws, rules or
regulations has been adopted which, when made effective, would have
a Material Adverse Effect;
(w)
Each contract,
agreement and license set forth in Annex II hereto is legal, valid,
binding, enforceable, and in full force and effect against the
Company or its subsidiary party thereto, as the case may be, and to
the knowledge of the Company, each other party thereto; neither the
Company nor any of its subsidiaries nor, to the Company’s
knowledge, any other party is in breach or default with respect to
any such contract, agreement or license, which breach or default
could reasonably be expected to have a Material Adverse Effect,
and, to the Company’s knowledge, no event has occurred which
with notice or lapse of time or both would constitute a breach or
default which would reasonably be expected to have a Material
Adverse Effect, or permit the termination, material modification,
or acceleration of a material obligation, under any such contract,
agreement or license; and neither the Company nor any of its
subsidiaries has received or given any notice that it or any party
has repudiated any material provision of any such contract,
agreement or license; and
(x)
None of the
Company or any of its subsidiaries is in violation of any statute,
or any rule, regulation, decision or order of any governmental
agency or body or any court relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (“Environmental Laws”),
is to its knowledge liable for any off-site disposal or
contamination pursuant to any Environmental Laws and is subject to
any claim relating to any Environmental Laws in any such case the
effect of which would result in a Material Adverse Effect;
hazardous or toxic substances include (i) any “hazardous
substance” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, (ii)
any “hazardous waste” as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum or
petroleum product, (iv) any polychlorinated biphenyl and (v) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning
of any other Environmental Law.
2.
Subject to the
terms and conditions herein set forth, (a) the Company agrees to
issue and sell to each of the Purchasers, and each of the
Purchasers agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 97% of the principal amount
thereof, the principal amount of Securities set forth opposite the
name of such Purchaser in Schedule I hereto, and (b) in the
event and to the extent that the Purchasers shall exercise the
election to purchase Optional Securities as provided below, the
Company agrees to issue and sell to each of the Purchasers, and
each of the Purchasers agrees, severally and not jointly, to
purchase from the Company, at the same purchase price set forth in
clause (a) of this Section 2, that portion of the aggregate
principal amount of the Optional Securities as to which such
election shall have been exercised (to be adjusted by you so as to
eliminate fractions of $1,000) determined by multiplying such
aggregate principal amount of Optional Securities by a fraction,
the numerator of which is the maximum aggregate principal amount of
Optional Securities which such Purchaser is entitled to purchase as
set forth opposite the name of such Purchaser in Schedule I
hereto and the denominator of which is the maximum aggregate
principal amount of Optional Securities which all of the Purchasers
are entitled to purchase hereunder.
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The Company hereby grants to the
Purchasers the right to purchase at their election up to
$50,000,000 aggregate principal amount of Optional Securities, at
the purchase price set forth in clause (a) of the first paragraph
of this Section 2, for the sole purpose of covering sales of
securities in excess of the aggregate principal amount of Firm
Securities. Any such election to purchase Optional Securities
may be exercised by written notice from you to the Company, given
within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate principal amount of Optional
Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in
Section (4) hereof) or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days
after the date of such notice.
3.
Upon the
authorization by you of the release of the Securities, the several
Purchasers propose to offer the Securities for sale upon the terms
and conditions set forth in this Agreement and the Offering
Circular and each Purchaser hereby represents and warrants to, and
agrees with the Company that:
(a)
It will offer and
sell the Securities only to persons who it reasonably believes are
“qualified institutional buyers” (“QIBs”)
within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A;
(b)
It is an
“accredited investor” within the meaning of
Rule 501 under the Act; and
(c)
It will not offer
or sell the Securities by any form of general solicitation or
general advertising, including but not limited to the methods
described in Rule 502(c) under the Act.
4.
(a) The
Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“DTC”) or
its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each
Purchaser against payment by or on behalf of such Purchaser of the
purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to you at least
forty-eight hours in advance, by causing DTC to credit the
Securities to the account of Goldman, Sachs & Co. at DTC.
The Company will cause the certificates representing the Securities
to be made available to Goldman, Sachs & Co. for checking at
least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the
“Designated Office”). The time and date of such
delivery and payment shall be, with respect to the Firm Securities,
9:30 a.m., New York City time, on May 3, 2004, or such other
time and date as you and the Company may agree upon in writing,
and, with respect to the Optional Securities, 9:30 a.m., New York
City time, on the date specified by the Purchasers in the written
notice given by Goldman, Sachs & Co. of the Purchasers’
election to purchase such Optional Securities, or such other time
and date as the Purchasers and the Company may agree upon in
writing. Such time and date for delivery of the Firm
Securities is herein called the “First Time of
Delivery”, such time and date for delivery of the Optional
Securities, if not the First Time of Delivery, is herein called the
“Second Time of Delivery”, and each such time and date
for delivery is herein called a “Time of
Delivery”.
(b)
The documents to be delivered at the
Time of Delivery by or on behalf of the parties hereto pursuant to
Section 7 hereof, including the cross-receipt for the
Securities and any additional documents requested by the Purchasers
pursuant to Section 7 hereof, will be delivered at such
time
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and date at the offices of Sullivan
& Cromwell LLP, New York, New York 10004 (the
“Closing Location”), and the Securities will be
delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at
5:00 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 4, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
5.
The Company
agrees with each of the Purchasers:
(a)
To prepare the
Offering Circular in a form approved by you; to make no amendment
or any supplement to the Offering Circular which shall be
disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
(b)
Promptly from
time to time to take such action as you may reasonably request to
qualify the Securities and the shares of Stock issuable upon
conversion of the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c)
To furnish the
Purchasers with five (5) copies of the Offering Circular and each
amendment or supplement thereto signed by an authorized officer of
the Company with the independent accountants’ report(s) in
the Offering Circular, and any amendment or supplement containing
amendments to the financial statements covered by such report(s),
signed by the accountants, and additional written
and electronic
copies thereof in such quantities as you may from time to time
reasonably request, and if, at any time prior to the expiration of
nine months after the date of the Offering Circular, any event
shall have occurred as a result of which the Offering Circular as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or
supplement the Offering Circular, to notify you and upon your
request to prepare and furnish without charge to each Purchaser and
to any dealer in securities as many written and electronic copies as you
may from time to time reasonably request of an amended Offering
Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such
compliance;
(d)
During the period
beginning from the date hereof and continuing until the date 60
days after the date of this Agreement, not to directly or
indirectly offer, sell contract to sell, or otherwise dispose of,
except as provided hereunder, any securities of the Company that
are substantially similar to the Securities or the Stock, including
but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than as expressly
disclosed in the Offering Circular or pursuant to employee stock
option and purchase plans existing on, or upon the conversion or
exchange of convertible, exercisable or exchangeable securities
outstanding as of, the date of this Agreement), without your prior
written consent; provided, however, that the Company may
issue shares of Stock after the 14th
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day of this
60-day period to satisfy payment obligations under certain
acquisition agreements and strategic partnership, collaboration or
licensing arrangements (each, a “Transaction”) in an
aggregate amount for all Transactions not to exceed $10,000,000,
based on the market price of the Stock on the dates of issuance
thereof; and provided further , that nothing in this
Section 5(d) shall preclude the Company from issuing
additional shares of Stock in Transactions after the 14th day of
this 60-day period in excess of the aggregate amount of
$10,000,000, so long as the recipients of such additional shares of
Stock each agree to be bound by a lock-up agreement substantially
similar to the terms and conditions of this Section 5(d)
before the provisos and covering a period of time exceeding 60 days
from the date hereof;
(e)
Not to be or
become, at any time prior to the expiration of three years after
the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act;
(f)
At any time when
the Company is not subject to Section 13 or 15(d) of the
Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon request, to holders of
Securities and prospective purchasers of securities information
(the “Additional Issuer Information”) satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the
Act;
(g)
If requested by
you, to use its best efforts to cause such Designated Securities to
be eligible for the PORTAL Ò
trading system of
the National Association of Securities Dealers, Inc.;
(h)
To furnish to the
holders of the Securities as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and
statements of income, shareholders’ equity and cash flows of
the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the date of the
Offering Circular), to make available to its shareholders
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(i)
During a period
of five years from the date of the Offering Circular, to furnish to
you copies of all reports or other communications (financial or
other) furnished to shareholders of the Company, and to (i) deliver
or make available to you (either in paper copies or, to the extent
that information is filed electronically, electronically) as soon
as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which the Securities or any class
of securities of the Company is listed; and (ii) deliver to you
such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally or
to the Commission);
(j)
During the period
of three years after the Time of Delivery, the Company will not,
and will not permit any of its “affiliates” (as defined
in Rule 144 under the Securities Act) to, resell any of the
Securities which constitute “restricted securities”
under Rule 144 that have been reacquired by any of
them;
(k)
Pursuant to the
Registration Rights Agreement, the Company shall file within 90
days and use its best efforts to caus
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