Exhibit 1.1
________________________________________________________________________________
________________________________________________________________________________
ICOS Corporation
(a Delaware corporation)
[_________] Shares of Common Stock
FORM OF
-------
UNDERWRITING AGREEMENT
----------------------
Dated: November ___, 2001
________________________________________________________________________________
________________________________________________________________________________
Table of Contents
Page
----
SECTION 1. Representations and Warranties ........................................................ 2
(a) Representations and Warranties by the Company ................................... 2
(i) Compliance with Registration Requirements .............................. 2
(ii) Incorporated Documents ................................................. 3
(iii) Good Standing .......................................................... 3
(iv) Authorization of Agreement ............................................. 4
(v) Authorization and Description of Securities ............................ 4
(vi) Capitalization of Company .............................................. 4
(vii) Capitalization of Subsidiaries and Ownership Interests in JV Partners .. 4
(viii) Absence of Defaults and Conflicts ...................................... 4
(ix) Absence of Further Requirements ........................................ 5
(x) Independent Accountants ................................................ 5
(xi) Financial Statements ................................................... 5
(xii) No Material Adverse Change in Business ................................. 6
(xiii) Absence of Proceedings ................................................. 6
(xiv) Possession of Licenses and Permits ..................................... 6
(xv) Investment Company Act ................................................. 7
(xvi) No Manipulation ........................................................ 7
(xvii) Possession of Intellectual Property .................................... 7
(xviii) Title to Property ...................................................... 7
(xix) Absence of Labor Dispute ............................................... 7
(xx) Environmental Laws ..................................................... 8
(xxi) Filing and Payment of Taxes ............................................ 8
(xxii) Insurance Coverage ..................................................... 8
(xxiii) Internal Controls ...................................................... 8
(xxiv) Minutes Books .......................................................... 9
(xxv) Accuracy of Exhibits ................................................... 9
(xxvi) Accuracy of Descriptions of Relationships .............................. 9
(xxvii) Absence of Registration Rights ......................................... 9
(xxviii) Margin Securities ...................................................... 9
(xxix) Absence of Claim to Commission or Fee .................................. 9
(xxx) Forward-Looking Statements ............................................. 10
(xxxi) No Distribution of Materials ........................................... 10
(b) Officer's Certificates .......................................................... 10
SECTION 2. Sale and Delivery to Underwriters; Closing ............................................ 10
(a) Initial Securities .............................................................. 10
(i)
(b) Option Securities .................................................. 10
(c) Payment ............................................................ 11
(d) Denominations; Registration ........................................ 11
SECTION 3. Covenants of the Company ................................................. 11
(a) Compliance with Securities Regulations and Commission Requests ..... 11
(b) Filing of Amendments ............................................... 12
(c) Delivery of Registration Statements ................................ 12
(d) Delivery of Prospectuses ........................................... 12
(e) Continued Compliance with Securities Laws .......................... 12
(f) Blue Sky Qualifications ............................................ 13
(g) Rule 158 ........................................................... 13
(h) Use of Proceeds .................................................... 13
(i) Listing ............................................................ 13
(j) Restriction on Sale of Securities .................................. 13
(k) Reporting Requirements ............................................. 14
SECTION 4. Payment of Expenses ...................................................... 14
(b) Termination of Agreement ........................................... 14
SECTION 5. Conditions of Underwriters' Obligations .................................. 15
(a) Effectiveness of Registration Statement ............................ 15
(b) Opinion of Counsel for Company ..................................... 15
(c) Opinion of Counsel for Underwriters ................................ 15
(d) Officers' Certificate .............................................. 15
(e) Accountant's Comfort Letter ........................................ 16
(f) Bring-down Comfort Letter .......................................... 16
(g) Approval of Listing ................................................ 16
(h) Lock-up Agreements ................................................. 16
(i) Conditions to Purchase of Option Securities ........................ 16
(j) Additional Documents ............................................... 17
(k) Termination of Agreement ........................................... 17
SECTION 6. Indemnification .......................................................... 17
(a) Indemnification of Underwriters .................................... 17
(b) Indemnification of Company, Directors and Officers ................. 18
(c) Actions against Parties; Notification .............................. 18
(d) Settlement without Consent if Failure to Reimburse ................. 19
SECTION 7. Contribution ............................................................. 20
(ii)
SECTION 8. Representations, Warranties and Agreements to Survive Delivery .... 21
SECTION 9. Termination of Agreement .......................................... 21
(a) Termination; General ........................................ 22
(b) Liabilities ................................................. 22
SECTION 10. Default by One or More of the Underwriters ........................ 22
SECTION 11. Notices ........................................................... 22
SECTION 12. Parties ........................................................... 23
SECTION 13. GOVERNING LAW AND TIME ............................................ 23
SECTION 14. Effect of Headings ................................................ 23
SCHEDULES
Schedule A - List of Underwriters ............................................... Sch A-1
Schedule B - Pricing Information ................................................ Sch B-1
Schedule C - List of Persons subject to Lock-up ................................. Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Xxxxxxx Coie LLP ................................. A-1
Exhibit B - Form of Opinion of Xxxxxxxx, Xxxxxxxx & Xxxxx ....................... B-1
Exhibit C - Form of Lock-up Letter .............................................. C-1
(iii)
ICOS Corporation
(a Delaware corporation)
_______ Shares of Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
----------------------
November ____, 2001
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Banc of America Securities LLC
Xxxxxxxxx Xxxxxxxx, Inc.
XX Xxxxx Securities Corporation
as Representatives of the several Underwriters
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-3629
c/x Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
ICOS Corporation, a Delaware corporation (the "Company"), confirms its
agreement with Credit Suisse First Boston Corporation ("CSFBC"), Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom CSFBC, Xxxxxxx Xxxxx, Banc of America Securities
LLC, Xxxxxxxxx Xxxxxxxx, Inc. and XX Xxxxx Securities Corporation are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $.01 per share, of the Company ("Common Stock") set forth in said
Schedule A, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of [_____] additional shares of Common Stock to
cover over-allotments, if any. The aforesaid [_____] shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the [_____] shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Registration No.
333-63790), including a prospectus, relating to certain of its debt and equity
securities (including the Securities) and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"). Such registration statement has been declared effective by the
Commission. As provided in Section 3(a), a prospectus supplement reflecting the
terms of the offering of the Securities and the other matters set forth therein
has been prepared and will be filed pursuant to Rule 424 under the 1933 Act.
Such prospectus supplement is herein referred to as the "Prospectus Supplement."
The information included in such prospectus supplement that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is herein referred to as the "Rule 430A
Information." Such registration statement, including the exhibits thereto and
the documents incorporated by reference therein, is herein called the
"Registration Statement", and the base prospectus included therein relating to
all offerings of securities under the Registration Statement, as supplemented by
the Prospectus Supplement, is herein called the "Prospectus".
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. A registration
-----------------------------------------
statement on Form S-3 (File No. 333-63790), including all pre-effective
amendments thereto (the "Initial Registration Statement"), in respect of
the Securities has been filed with the Commission; the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto, but including
all documents incorporated by reference in the prospectus contained
therein, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the 1933 Act,
and the rules and regulations (the "1933 Act Regulations") of the
Commission thereunder, which became effective upon filing, no other
document with respect to the
2
Initial Registration Statement or document incorporated by reference
therein has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the Commission
(any preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the 1933 Act
Regulations, is hereinafter called a "Preliminary Prospectus"). No document
has been or will be prepared or distributed in reliance on Rule 434 under
the 1933 Act. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission. The Registration Statement
conforms (and the Rule 462(b) Registration Statement, if any, the
Prospectus and any amendments or supplements to either of the Registration
Statements or the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform) in all material respects
to the requirements of the 1933 Act and the 1933 Act Regulations and do not
and will not, as of the applicable effective date (as to the Registration
Statements and any amendment thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto) contain 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
not misleading; provided, however, that the foregoing representations and
warranties shall not apply to information contained in or omitted from the
Registration Statements or the Prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company through CSFBC or Xxxxxxx Xxxxx by or
on behalf of any Underwriter specifically for inclusion therein.
(ii) Incorporated Documents. The documents incorporated or deemed
----------------------
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and the rules
and regulations of the Commission thereunder, and, when read together with
the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and at
the Closing Time (and if any Option Securities are purchased, at the Date
of Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Good Standing. The Company and each of its subsidiaries, and
-------------
each of Suncos Corporation, Lilly ICOS LLC and ICOS-Texas Biotechnology
L.P. (the "JV Partners") have been duly incorporated or organized and are
validly existing as corporations, partnerships or limited liability
companies in good standing under the laws of their respective jurisdictions
of incorporation or organization, are duly qualified to do business and are
in good standing as foreign corporations, partnerships or limited liability
companies in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such
qualification and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged, except where the failure to have such power or
3
authority necessary to own or hold their respective properties would not
have, singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"). In addition to the JV Partners, the Company owns or
controls, directly or indirectly, only the following corporations,
associations or other entities: ICOS Development Corporation, ICOS-ET-LP
LLC and ICOS-ET-GP LLC.
(iv) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
(v) Authorization and Description of Securities. The Securities to
-------------------------------------------
be issued and sold by the Company to the Underwriters hereunder has been
duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid
and nonassessable and free of any preemptive or similar rights and will
conform to the description thereof contained in the Prospectus.
(vi) Capitalization of Company. The Company has an authorized
-------------------------
capitalization as set forth in the Prospectus, and all of the issued shares
of capital stock of the Company, including the Securities when issued and
delivered in accordance with this Agreement, have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus. None of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or similar rights of any securityholder of the Company.
(vii) Capitalization of Subsidiaries and Ownership Interests in JV
------------------------------------------------------------
Partners. All the outstanding shares of capital stock of each corporate
--------
subsidiary of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and, except to the extent set forth in the
Prospectus, are owned by the Company directly or indirectly through one or
more wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party. None of the outstanding shares of capital
stock of any subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such subsidiary. Except to the
extent set forth in the Prospectus, the ownership interests in the JV
Partners are owned by the Company directly or indirectly through one or
more wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party.
(viii) Absence of Defaults and Conflicts. None of the Company or any
---------------------------------
of its subsidiaries or JV Partners (i) is in violation of its charter or
by-laws, (ii) is in default in any respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or
(iii) is in violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may
be subject except in the cases of clauses (ii) and (iii), any violations or
defaults which would
4
not have a Material Adverse Effect. The execution, delivery and performance
of this Agreement by the Company and the consummation of the transactions
contemplated hereby and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default or Repayment
Event (as defined below) under, or result in the creation or imposition of
a lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary or JV Partner pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries or the JV Partners is a party or by which the
Company or any of its subsidiaries or the JV Partners is bound or to which
any of the property or assets of the Company or any of its subsidiaries or
the JV Partners is subject (except in the case of such occurrence which
would not have a Material Adverse Effect), nor will such actions result in
any violation of (a) the provisions of the charter or by-laws of the
Company or any of its subsidiaries or the JV Partners or (b) any statute or
any order, rule or regulation of any court, domestic or foreign, or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or the JV Partners or any of their properties or assets,
except in the case of clause (b), any violation which would not have a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary or JV
Partner.
(ix) Absence of Further Requirements. Except for the registration of
-------------------------------
the Securities under the 1933 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the 1934 Act and applicable state securities laws and rules and regulations
of the National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Securities by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
necessary or required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby.
(x) Independent Accountants. KPMG LLP, who have expressed their
-----------------------
opinions on the audited financial statements and related schedules included
or incorporated by reference in the Registration Statements and the
Prospectus, are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(xi) Financial Statements. The financial statements, together with the
--------------------
related notes and schedules, included or incorporated by reference in the
Prospectus and in each Registration Statement fairly present the financial
position and the results of operations
5
and changes in financial position of the Company and its consolidated
subsidiaries at the respective dates or for the respective periods therein
specified. Such statements and related notes and schedules have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis except as may be set forth in the Prospectus.
The supporting schedules, if any, included in the Registration Statement
present fairly in accordance with generally accepted accounting principles
the information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(xii) No Material Adverse Change in Business. Since the date of the
--------------------------------------
latest audited financial statements included or incorporated by reference
in the Prospectus, (a) none of the Company or any of its subsidiaries or JV
Partners has sustained, 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 Prospectus,
(b) there has not been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or the JV Partners or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries and JV Partners taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, (c) there have been no
transactions entered into by the Company or any of its subsidiaries or JV
Partners, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries and JV Partners
taken as a whole, other than as set forth in the Prospectus and (d) there
has been no dividend or distribution of any kind declared, paid or made on
any class of capital stock of the Company or any of its subsidiaries.
(xiii) Absence of Proceedings. Except as set forth in the Prospectus,
----------------------
there is no legal or governmental proceeding pending to which the Company
or any of its subsidiaries or JV Partners is a party or of which any
property or assets of the Company or any of its subsidiaries or JV Partners
is the subject which, singularly or in the aggregate, if determined
adversely to the Company or any of its subsidiaries or JV Partners, would
have a Material Adverse Effect or would prevent or adversely affect the
ability of the Company to perform its obligations under this Agreement; and
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others. The
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary or JV Partner is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Possession of Licenses and Permits. The Company and each of its
----------------------------------
subsidiaries and JV Partners possess all licenses, certificates,
authorizations and permits issued by, and have made all declarations and
filings with, the appropriate state, federal or
6
foreign regulatory agencies or bodies which are necessary or desirable for
the ownership of their respective properties or the conduct of their
respective businesses as described in the Prospectus except where any
failures to possess or make the same, singularly or in the aggregate, would
not have a Material Adverse Effect, and none of the Company or any of its
subsidiaries or JV Partners has received notification of any revocation or
modification of any such license, authorization or permit and has any
reason to believe that any such license, certificate, authorization or
permit will not be renewed.
(xv) Investment Company Act. Neither the Company nor any of its
----------------------
subsidiaries or JV Partners is or, after giving effect to the offering of
the Securities and the application of the proceeds thereof as described in
the Prospectus will become an "investment company" within the meaning of
the Investment Company Act of 1940, as amended and the rules and
regulations of the Commission thereunder.
(xvi) No Manipulation. Neither the Company nor any of its officers,
---------------
directors or to the Company's knowledge, affiliates has taken or will take,
directly or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to cause
or result in, stabilization or manipulation of the price of any security of
the Company.
(xvii) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries and JV Partners own or possess the right to use all patents,
trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights necessary to carry on the business as described in the
Prospectus, and none of the Company or any of its subsidiaries or JV
Partners has received any notice or is otherwise aware of any claim to the
contrary or any challenge by any other person to the rights of the Company
and its subsidiaries and JV Partners with respect to the foregoing. Except
as described in the Prospectus, the Company's business as now conducted and
as proposed to be conducted does not and will not infringe or conflict with
any patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses or other intellectual property or franchise right of any
person. Except as described in the Prospectus, no claim has been made
against the Company alleging the infringement by the Company of any patent,
trademark, service mark, trade name, copyright, trade secret, license or
other intellectual property right or franchise right of any person.
(xviii) Title to Property. The Company and each of its subsidiaries
-----------------
and JV Partners have good and marketable title in fee simple to, or have
valid rights to lease or otherwise use, all items of real or personal
property which are material to the business of the Company and its
subsidiaries taken as a whole, in each case free and clear of all liens,
encumbrances, claims and defects that may result in a Material Adverse
Effect.
(xix) Absence of Labor Dispute. No labor disturbance by the
------------------------
employees of the Company or any of its subsidiaries or JV Partners exists
or, to the best of the Company's knowledge, is imminent, which might be
expected to have a Material Adverse Effect. The
7
Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary or JV Partner plans to terminate
employment with the Company or any such subsidiary or JV Partner.
(xx) Environmental Laws. There has been no storage, generation,
------------------
transportation, handling, treatment, disposal, discharge, emission, or
other release of any kind of toxic or other wastes or other hazardous
substances by, due to, or caused by the Company or any of its subsidiaries
or JV Partners (or, to the best of the Company's knowledge, any other
entity for whose acts or omissions the Company or any of its subsidiaries
is or may be liable) upon any of the property now or previously owned or
leased by the Company or any of its subsidiaries or JV Partners, or upon
any other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any
statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for
any violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect; there has been no disposal, discharge, emission or other release of
any kind onto such property or into the environment surrounding such
property of any toxic or other wastes or other hazardous substances with
respect to which the Company or any of its subsidiaries or JV Partners have
knowledge, except for any such disposal, discharge, emission, or other
release of any kind which would not have, singularly or in the aggregate
with all such discharges and other releases, a Material Adverse Effect.
(xxi) Filing and Payment of Taxes. The Company and its subsidiaries
---------------------------
and JV Partners each (i) have filed all necessary federal, state and
foreign income and franchise tax returns, (ii) have paid all federal,
state, local and foreign taxes due and payable for which it is liable, and
(iii) do not have any tax deficiency or claims outstanding or assessed or,
to the best of the Company's knowledge, proposed against it which could
reasonably be expected to have a Material Adverse Effect.
(xxii) Insurance Coverage. The Company and each of its subsidiaries
------------------
and JV Partners carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar businesses in similar industries.
(xxiii) Internal Controls. The Company and each of its subsidiaries
-----------------
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
8
(xxiv) Minutes Books. The minute books of the Company and each of
-------------
its subsidiaries and JV Partners have been made available to the
Underwriters and counsel for the Underwriters, and such books (i) contain a
complete summary of all meetings and actions of the directors and
stockholders of the Company and each of its subsidiaries since the time of
its respective incorporation through the date of the latest meeting and
action, and (ii) accurately in all material respects reflect all
transactions referred to in such minutes.
(xxv) Accuracy of Exhibits. There is no franchise, lease, contract,
--------------------
agreement or document required by the 1933 Act or by the 1933 Act
Regulations to be described in the Prospectus or to be filed as an exhibit
to the Registration Statements which is not described or filed or
incorporated by reference therein as required; and all descriptions of any
such franchises, leases, contracts, agreements or documents contained or
incorporated by reference in the Registration Statements are accurate and
fair descriptions of such documents in all material respects.
(xxvi) Accuracy of Descriptions of Relationships. No relationship,
-----------------------------------------
direct or indirect, exists between or among the Company on the one hand,
and the directors, officers, stockholders, customers or suppliers of the
Company on the other hand, which is required to be described in the
Prospectus and which is not so described.
(xxvii) Absence of Registration Rights. No person or entity has the
------------------------------
right to require registration of shares of Common Stock or other securities
of the Company because of the filing or effectiveness of the Registration
Statements or otherwise, except for persons and entities who have expressly
waived such right or who have been given proper notice and have failed to
exercise such right within the time or times required under the terms and
conditions of such right.
(xxviii) Margin Securities. None of the Company or any of its
-----------------
subsidiaries or JV Partners own any "margin securities" as that term is
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and none of the proceeds of
the sale of the Securities will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin security, for the purpose of
reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which might
cause any of the Securities to be considered a "purpose credit" within the
meanings of Regulation G, T, U or X of the Federal Reserve Board.
(xxix) Absence of Claim to Commission or Fee. None of the Company or
-------------------------------------
any of its subsidiaries or JV Partners is a party to any contract,
agreement or understanding with any person that would give rise to a valid
claim against the Company or the Underwriters for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of
the Securities.
9
(xxx) Forward-Looking Statements. No forward-looking statement
--------------------------
(within the meaning of Section 27A of the 1933 Act and Section 21E of the
1934 Act) contained in the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(xxxi) No Distribution of Materials. The Company has not distributed
----------------------------
and, prior to the later of (i) the Closing Dates and (ii) the completion of
the distribution of the Securities, will not distribute any written
offering material in connection with the offering and sale of the
Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the 1933 Act.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional [_____] shares of Common Stock
at the price per share set forth in Schedule B, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Securities upon notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
10
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxxx
Coie LLP or at such other place as shall be agreed upon by the Representatives
and the Company, at 7:00 A.M. (California time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities
are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on each Date of Delivery as specified in the
notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter
------------------------
as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify the Representatives immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus, any amended Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus shall have
11
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the initiation or
threatening of any proceedings known by the Company for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish
the Representatives with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representatives or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in
12
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect and maintain
the quotation of the Securities on the Nasdaq National Market and will file with
the Nasdaq National Market all documents and notices required by the Nasdaq
National Market of companies that have securities for which quotations are
reported by the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 90 days from the
date of the Prospectus, the Company will not, without the prior written consent
of CSFBC and Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or
13
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus or (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
SECTION 4. Payment of Expenses
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the NASD of the terms of the sale
of the Securities, (x) the fees and expenses incurred in connection with the
inclusion of the Securities in the Nasdaq National Market and (xi) the fees and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
14
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters.
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinions, each dated as of Closing Time, of
(i) Xxxxxxx Coie LLP, counsel for the Company, and (ii) Xxxxxxxx, Xxxxxxxx &
Borun, special patent counsel to the Company, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letter, for each of the other Underwriters to the effect set forth in
Exhibits A and B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters in such form as is
reasonably acceptable to the Underwriters. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of such officer, are
contemplated by the Commission.
15
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from KPMG LLP a letter dated
such date, in form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from KPMG LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have been
approved for quotation on the Nasdaq National Market, subject only to official
notice of issuance.
(h) Lock-up Agreements. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule C hereto.
(i) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinions of Counsel for Company. The favorable opinions of (x)
-------------------------------
Xxxxxxx Coie LLP, counsel for the Company, and (y) Xxxxxxxx, Xxxxxxxx
& Xxxxx, special patent counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, each dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions
required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
-----------------------------------
Xxxxxxxx & Sterling, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
16
17
(iv) Bring-down Comfort Letter. A letter from KPMG LLP, in form and
-------------------------
substance satisfactory to the Representatives and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(f) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(j) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
17
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by CSFBC and
Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through CSFBC or Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The forgeoing indemnity with respect to any untrue statement contained
in or omission from a preliminary prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, liability, claim, damage or expense purchased
any of the Securities which are the subject thereof if a Prospectus was required
to be delivered under the 1933 Act and the Company shall sustain the burden of
proving that such person was not sent or given a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the written confirmation
of the sale of such Securities to such person and the untrue statement contained
in or omission from such preliminary prospectus was corrected in the Prospectus
(or the Prospectus as amended or supplemented), unless such failure is the
result of noncompliance by the Company with Section 3(c) or Section 3(d) hereof.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, 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 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through CSFBC or Xxxxxxx Xxxxx expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the
18
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
CSFBC and Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
-------- -------
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
19
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
------------
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters 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 above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
20
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representative(s) may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or in the international
financial markets, any attack on, outbreak of hostilities or escalation thereof,
act of terrorism, declaration of war by Congress or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative(s),
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq
National Market, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or with respect
to Clearstream, Luxembourg or Euroclear systems in Europe, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
21
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
------------------------------------------
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation
of the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation
of the Underwriters to purchase and the Company to sell the relevant Option
Securities, as the case may be, either the Representatives or the Company shall
have the right to postpone Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at Credit Suisse First Boston Corporation,
Attention: Transactions Advisory Group, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx Xxxxxxxxxx 00000, attention: Xxxxx
22
Xxxxxxx, with a copy to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000; and notices
to the Company shall be directed to it at 00000 00/xx/ Xxxxxx XX, Xxxxxxx,
Xxxxxxxxxx 00000, attention of Chief Executive Officer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and be
-------
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and the
------------------
Table of Contents are for convenience only and shall not affect the construction
hereof. If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
ICOS CORPORATION
By______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BANC OF AMERICA SECURITIES LLC
XXXXXXXXX XXXXXXXX, INC.
XX XXXXX SECURITIES CORPORATION
23
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By________________________________________
Authorized Signatory
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By________________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
24
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Credit Suisse First Boston Corporation .................................
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ...............................................
Banc of America Securities LLC .........................................
Xxxxxxxxx Xxxxxxxx, Inc.................................................
XX Xxxxx Securities Corporation.........................................
----------
Total .................................................................. =====
Sch A-1
SCHEDULE B
ICOS Corporation
[ ] Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $____________.
2. The purchase price per share for the Securities to be
paid by the several Underwriters shall be $______________, being an amount equal
to the initial public offering price set forth above less $____________ per
share; provided that the purchase price per share for any Option Securities
purchased upon the exercise of the over-allotment option described in Section
2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities but
not payable on the Option Securities.
Sch B-1
SCHEDULE C
List of persons and entities subject to lock-up
Xxxx X. Xxxxx
Xxxx X. Xxxxxx, Ph.D.
Xxxxxxx X. Xxxx
X. Xxxxxxx Xxxxxxxx, Ph.D.
Xxxxxx X. St. Xxxx, Ph.D.
Xxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx III
Xxxxx X. Xxxxxxxx, Ph.D.
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Sch C-1
Exhibit A
FORM OF OPINION OF XXXXXXX COIE LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) The Company and each of its subsidiaries and JV Partners have been
duly incorporated or organized and are validly existing as corporations,
partnerships or limited liability companies in good standing under the laws
of their respective jurisdictions of incorporation or organization, are
duly qualified to do business and are in good standing as foreign
corporations, partnerships or limited liability corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification and
have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except
where the failure to have such power or authority to own or hold their
respective properties would not have, singularly or in the aggregate, a
Material Adverse Effect.
(ii) The authorized capitalization of the Company is as set forth in
the Prospectus. The shares of capital stock of the Company outstanding
prior to the issuance of the Securities have been duly authorized and are
validly issued, fully paid and nonassessable. The Securities have been duly
authorized and, when issued and delivered in accordance with the
Underwriting Agreement, will be validly issued, fully paid and
nonassessable. None of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or similar rights of any
securityholder of the Company. All of the issued shares of capital stock of
the Company conform, and the Securities being delivered on the Closing Date
when issued and delivered in accordance with the Underwriting Agreement
will conform, in all material respects as to legal matters to the
description thereof incorporated by reference into the Prospectus under the
heading "Description of Common Stock."
(iii) All the outstanding shares of capital stock of each subsidiary
of the Company that is a corporation and all the membership interests of
each of the subsidiaries that is a limited liability company have been duly
authorized and validly issued, are fully paid and nonassessable and, except
to the extent set forth in the Prospectus, all such shares of capital stock
and membership interests are owned by the Company directly or indirectly
through one or more wholly-owned subsidiaries, free and clear of any claim,
lien, encumbrance, security interest, restriction upon voting or transfer
or any other claim of any third party. None of the outstanding shares of
capital stock of any subsidiary was issued in violation of the preemptive
or similar rights of any securityholder of such subsidiary. Except to the
extent set forth in the Prospectus, the ownership interests in the JV
Partners are owned by the Company directly or indirectly through one or
more wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party.
A-1
(iv) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of,
an of the Securities pursuant to the Company's charter or by-laws or
any agreement or other instrument known to us.
(v) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Prospectus under the caption "Use
of Proceeds") and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default or Repayment Event (as defined below) under, or result in the
creation or imposition of lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary or JV Partner
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to us to which the Company or any
of its subsidiaries or JV Partners is a party or by which the Company
or any of its subsidiaries or JV Partners is bound or to which any of
the property or assets of the Company or any of its subsidiaries or JV
Partners is subject, nor will such actions result in any violation of
(a) the provisions of the charter or by-laws of the Company or any of
its subsidiaries or JV Partners or (b) to the best of our knowledge,
any statute or any order, rule or regulation of any court, domestic or
foreign, or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or JV Partners or any of their
properties or assets. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any
subsidiary or JV Partner.
(vii) Except for the registration of the Securities under the
1933 Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the 1934 Act, applicable
state securities laws or the NASD in connection with the purchase and
distribution of the Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of the Underwriting Agreement by
the Company and the consummation of the transactions contemplated
thereby.
(viii) The statements set forth in the Prospectus under the
heading "Description of Common Stock", insofar as they purport to
constitute a summary of the terms of the Securities, are accurate,
complete and fair.
A-2
(ix) With the exception of the statements contained in [Blood
Letter references] of text under the heading "Underwriting" in the
Prospectus, the description in the Registration Statement and
Prospectus of statutes, legal or governmental proceedings and
contracts and other documents are accurate in all material respects;
and to the best of our knowledge, there are no statutes, legal or
governmental proceedings, contracts or other documents of a character
required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not
described or have not been filed as required.
(x) To the best of our knowledge, neither the Company nor any
of its subsidiaries or JV Partners (i) is in violation of its charter
or by-laws, (ii) is in default, and no event has occurred, which, with
notice or lapse of time or both, would constitute a default, in the
due performance or observance of any term, covenant or condition
contained in any material agreement or instrument to which it is a
party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of
its business, except, with regard to clause (iii), for those defaults,
violations or failures which would not have, singularly or in the
aggregate, a Material Adverse Effect.
(xi) To the best of our knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries or JV Partners
is a party or of which any property or asset of the Company or any of
its subsidiaries or JV Partners is the subject which, singularly or in
the aggregate, if determined adversely to the Company or any of its
subsidiaries or the JV Partners, could have a Material Adverse Effect
or would prevent or adversely affect the ability of the Company to
perform its obligations under the Underwriting Agreement; and, to the
best of our knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xii) The Registration Statement was declared effective under
the 1933 Act, the Rule 462(b) Registration Statement, if any, was
filed with the Commission on the date specified therein, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b)(4) of the 1933 Act Regulations and no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the best of our knowledge, no proceeding for that
purpose is pending or threatened by the Commission.
(xiii) The Registration Statement, as of its respective effective
dates, and the Prospectus, as of its date, and any further amendments
or supplements thereto, as of their respective dates, made by the
Company prior to the Closing Date (other than the financial statements
and other financial data contained therein, as to which we express no
opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; and the
documents incorporated by reference in the Prospectus
A-3
(other than the financial statements and related schedules therein, as
to which we express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations.
(xiv) To the best of our knowledge, no person or entity has the
right to require registration of shares of Common Stock or other
securities of the Company because of the filing or effectiveness of
the Registration Statements or otherwise, except for persons and
entities who have expressly waived such right or who have been given
proper notice and have failed to exercise such right within the time
or times required under the terms and conditions of such right.
(xv) Neither the Company nor any of its subsidiaries or JV
Partners is an "investment company" within the meaning of the
Investment Company Act and the rules and regulations of the Commission
thereunder.
In the course of our participation, as counsel to the Company, in
the preparation of the Registration Statement and the Prospectus, we have
examined information available to us, including legal records, documents and
proceedings, and have attended conferences with, among others, representatives
of the Underwriters, officers and other representatives of the Company and the
independent auditors for the Company, at which conferences the contents of the
Registration Statement and the Prospectus were discussed. Without undertaking to
determine independently or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or in the Prospectus (except as provided in paragraphs (viii) and (ix)
above), we have no reason to believe that at the time the Registration Statement
became effective, it (including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A of the
1933 Act) contained ay untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus, at the time it was
filed with the Commission and at the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading (except that we
express no opinion or belief with respect to any financial data, schedules or
information contained in or incorporated by reference into the Registration
Statement or in the Prospectus and derived from the financial statements or
schedules contained therein).
A-4
Exhibit B
FORM OF OPINION OF
XXXXXXXX, XXXXXXXX & XXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
(i) We have read the portions of the Registration Statement and the
Prospectus entitled "Risk Factors - If we are unable to protect our intellectual
property rights adequately, the value of our potential products could be
diminished," "Risk Factors - We may be subject to substantial costs and
liability or be prohibited from commercializing our potential products as a
result of patent infringement litigation and other proceedings relating to
patent rights," and "Business - Patents and Proprietary Rights," and it is our
opinion that such sections are accurate and complete statements or summaries of
the matters of law therein set forth.
(ii) Although we have not independently verified the accuracy and
completeness of the statements contained in the Registration Statement and the
Prospectus, nothing has come to our attention that would cause us to believe
that, at the time the Registration Statement became effective under the
Securities Act of 1933, as amended, the description and statements in the
above-referenced sections of the Registration Statement contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein not misleading;
or as of the date of the Prospectus or the date of this opinion, the description
and statements in the above-referenced sections of the Prospectus contained or
contain any untrue statement of a material fact or omitted or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Exhibit C
FORM OF LOCK-UP LETTER
___________, 2001
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Banc of America Securities LLC
Xxxxxxxxx Xxxxxxxx, Inc.
XX Xxxxx Securities Corporation
as Representatives of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by ICOS Corporation
--------------------------------------------
Dear Sirs:
The undersigned, a stockholder of ICOS Corporation, a Delaware corporation
(the "Company"), understands that Credit Suisse First Boston Corporation
("CSFBC") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx"), Banc of America Securities LLC, Xxxxxxxxx Xxxxxxxx, Inc. and XX Xxxxx
Securities Corporation proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with the Company providing for the public offering of
shares of the Company's common stock, par value $.01 per share (the "Common
Stock"). In recognition of the benefit that such an offering will confer upon
the undersigned as a stockholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Underwriting
Agreement that, during a period of 90 days from the date of the Underwriting
Agreement, the undersigned will not, without the prior written consent of CSFBC
and Xxxxxxx Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or any shares of the
Company's Common Stock which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "Beneficially Owned Shares"), or file
any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
The foregoing paragraph shall not apply to (a) the sale of no more than an
aggregate of 150,000 shares of Common Stock held by officers and directors of
the Company signing a lock-up agreement in connection with the public offering,
the allocation of such shares among such officers and directors to be determined
by the Company in its sole discretion; or (b) any transfer by the undersigned of
shares of Common Stock or Beneficially Owned Shares or securities convertible
into or exchangeable or exercisable for Common Stock (i) by bona fide gift or
(ii) on the undersigned's death by will or intestacy, provided, however, that
-------- -------
prior to any transfer pursuant to subsection (b)(i) herein, each transferee
shall execute an agreement, satisfactory to CSFBC and Xxxxxxx Xxxxx, pursuant to
which each transferee shall agree to receive and hold such shares of Common
Stock or Beneficially Owned Shares, or securities convertible into or
exchangeable or exercisable for Common Stock, subject to the provisions hereof,
and there shall be no further transfer except in accordance with the provisions
hereof.
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the ninety day period following the date of the Company's final
prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of 1933, as amended, of any shares of Common
Stock that are registered in the name of the undersigned or that are
Beneficially Owned Shares. In order to enable the aforesaid covenants to be
enforced, the undersigned hereby consents to the placing of legends and/or
stop-transfer orders with the transfer agent of the Common Stock with respect to
any shares of Common Stock or Beneficially Owned Shares.
Very truly yours,
Signature:
-----------------------------------
Print Name:
---------------------------------
