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2,000,000 Shares
TRANSCEND THERAPEUTICS, INC.
Common Stock
UNDERWRITING AGREEMENT
April __, 1997
VECTOR SECURITIES INTERNATIONAL, INC.
EVEREN SECURITIES, INC.
As Representatives of the Several Underwriters
c/o VECTOR SECURITIES INTERNATIONAL, INC.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Transcend Therapeutics, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 2,000,000 shares of its
common stock, par value $0.01 per share (the "Initial Securities"), to the
several Underwriters named in Schedule I hereto (the "Underwriters") for whom
Vector Securities International, Inc. ("Vector"), and EVEREN Securities, Inc.
are acting as representatives (collectively, the "Representatives"). In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the several Underwriters, upon the terms and conditions set
forth in Section 2 hereof, an option to purchase up to an additional 300,000
shares of Common Stock of the Company (the "Option Securities"). The Initial
Securities and the Option Securities are hereinafter collectively referred to as
the "Securities." The Company's common stock, par value $0.01 per share,
including the Securities, is hereinafter referred to as the "Common Stock." The
Company wishes to confirm as follows its agreements with you and the other
Underwriters on whose behalf you are acting in connection with the several
purchases by the Underwriters of the Securities:
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1. REGISTRATION STATEMENT AND PROSPECTUS. The Company
has prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (No. 333-22817) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus, or prospectuses,
and either (A) has prepared and filed, prior to the effective date of such
registration statement, an amendment to such registration statement, including a
final prospectus or (B) if the Company has elected to rely upon Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), will prepare and file a prospectus, in accordance with
the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, promptly after execution and delivery of this Agreement.
Additionally, if the Company has elected to rely upon Rule 434 ("Rule 434") of
the 1933 Act Regulations, the Company will prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b),
promptly after execution and delivery of this Agreement. The information, if
any, included in such prospectus or in such Term Sheet, 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 becomes effective (a)
pursuant to paragraph (b) of Rule 430A, is referred to herein as the "Rule 430A
Information," or (b) pursuant to paragraph (d) of Rule 434, is referred to
herein as the "Rule 434 Information." Each prospectus used before the time such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was used
after effectiveness and prior to the execution and delivery of this Agreement is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits and schedules thereto, at the time it became effective and
including, if applicable, the Rule 430A Information or the Rule 434 Information,
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
Registration Statement shall include the Rule 462(b) Registration Statement. The
final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein referred to as the
"Prospectus." If Rule 434 is relied upon, the term "Prospectus" shall refer to
the preliminary prospectus last furnished to the Underwriters in connection
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with the offering of the Securities, together with the Term Sheet, and all
references to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy, if any,
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX").
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein, the Company hereby agrees to issue
and sell to each Underwriter and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $[ ] per share
(the "purchase price per share"), the number of Initial Securities set forth in
Schedule I opposite the name of such Underwriter under the column "Number of
Initial Securities to be Purchased from the Company" (or such number of Initial
Securities increased as set forth in Section 10 hereof).
Upon the basis of the representations, warranties and
agreements contained herein and subject to all the terms and conditions set
forth herein, the Company hereby grants an option (the "over-allotment option")
to the Underwriters to purchase from the Company, at the purchase price per
share, up to an aggregate of 300,000 Option Securities. Option Securities may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Securities. Such option shall expire at 5:00 P.M.,
Chicago time, on the 30th day after the date of this Agreement (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading). Such
over-allotment option may be exercised at any time or from time to time until
its expiration. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company that
proportion of the total number of Option Securities as is equal to the
percentage of Initial Securities that such Underwriter is purchasing from the
Company (or such number of Initial Securities increased as set forth in Section
10 hereof), subject to such adjustments as you may determine to avoid fractional
shares.
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3. TERMS OF PUBLIC OFFERING. The Company has been advised by
you that the Underwriters propose to make a public offering of the Securities as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable and initially to offer the Securities upon the
terms set forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery
to the Underwriters of and payment for the Initial Securities shall be made at
the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, at 9:00 A.M., Chicago 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 hereof) (the "Closing Date"). The place of closing for
the Initial Securities and the Closing Date may be varied by agreement among you
and the Company.
Delivery to the Underwriters of and payment for any Option
Securities to be purchased by the Underwriters shall be made at the
aforementioned office of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) at such
time on such date (an "Option Closing Date"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor earlier
than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the Underwriters to the Company of the Underwriters' determination to
purchase a number, specified in such notice, of Option Securities. The place of
closing for any Option Securities and the Option Closing Date for such Option
Securities may be varied by agreement between you and the Company.
Certificates for the Initial Securities and for any Option
Securities to be purchased hereunder shall be registered in such names and in
such denominations as you shall request by written notice (it being understood
that a facsimile transmission shall be deemed written notice) prior to 9:30
A.M., Chicago time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in Chicago, Illinois or New York, New York, as requested by you
in the aforesaid notice, for inspection and packaging not later than 9:30 A.M.,
Chicago time, on the business
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day next preceding the Closing Date or an Option Closing Date, as the case may
be. The certificates evidencing the Initial Securities and any Option Securities
to be purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase price
therefor by certified or official bank check or checks payable in New York
Clearing House (next day) funds to the order of the Company. It is understood
that each Underwriter has authorized you, for its account, to accept delivery
of, acknowledge receipt of, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Vector, 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 check has not been received by the Closing Date or the Option
Closing Date, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
5. AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters as follows:
a. The Company will notify the
Underwriters immediately, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and any amendment thereto, (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, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the suspension of qualification of the Securities for
offering or sale in any jurisdiction or the initiation of any proceedings for
such purpose and (v) during the period when the Prospectus is required to be
delivered under the 1933 Act or Securities Exchange Act of 1934, as amended (the
"1934 Act"), of any change, or any event or occurrence which could result in
such a change, in the Company's condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company or the happening
of any event, including the filing of any information, documents or reports
pursuant to the 1934 Act, that makes any statement of a material fact made in
the Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes
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in the Registration Statement or the Prospectus in order to state a material
fact required by the 1933 Act or the 1933 Act Regulations to be stated therein
or necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus to comply with the 1933 Act, the
1933 Act Regulations or any other law. The Company shall use its best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption of the Securities under any state securities or Blue Sky laws, and, if
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption of the Securities under any state securities or Blue Sky laws, the
Company shall use every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
b. The Company will give the
Underwriters notice of its intention to prepare or file any amendment to the
Registration Statement (including any post-effective amendment), any Rule 462(b)
Registration Statement, any Term Sheet or any amendment or supplement to the
Prospectus (including any revised prospectus or Term Sheet and preliminary
prospectus which the Company proposes for use by the Underwriters in connection
with the offering of the Securities which differs from the prospectus on file at
the Commission at the time the Registration Statement becomes effective, whether
or not such revised prospectus or Term Sheet and preliminary prospectus is
required to be filed pursuant to Rule 424(b)), whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Underwriters with copies of any Rule
462(b) Registration Statement, Term Sheet, amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such Rule 462(b) Registration Statement, Term Sheet, amendment
or supplement or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall object.
c. The Company has furnished or will
deliver to the Underwriters and their counsel, without charge, as many signed
and conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as the Underwriters may reasonably request. If applicable,
the copies of
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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. The Company will furnish to each
Underwriter, without charge, from time to time 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 for the purposes contemplated by the 1933
Act, the 1934 Act, the 1933 Act Regulations or the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"). If applicable, 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. The Company will comply with the
1933 Act and the 1933 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, the
1934 Act, the 1933 Act Regulations or the 1934 Act Regulations to be delivered
in 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
5(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.
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f. During the period of five years
hereafter, the Company will furnish to you (i) as soon as available, a copy of
each report of the Company mailed to stockholders or filed with the Commission
or the Nasdaq National Market ("NNM"), and (ii) from time to time such other
information concerning the Company as you may request.
g. The Company will use its best
efforts, in cooperation with counsel to the Underwriters, to qualify the
Securities for offering and sale under the applicable securities or Blue Sky
laws of such states and other jurisdictions of the United States as the
Underwriters 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 qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. 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 later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement.
h. The Company will make generally
available to its security holders as soon as practicable, but not later than 45
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
i. 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."
j. If, at the time that the
Registration Statement becomes effective, any Rule 430A Information or Rule 434
Information shall have been omitted therefrom, then immediately following the
execution of this Agreement, the Company will prepare, and file or transmit for
filing with the Commission in
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accordance with Rule 430A or Rule 434 and Rule 424(b), copies of a Prospectus or
Term Sheet containing such Rule 430A Information and Rule 434 Information,
respectively, or, if required by Rule 430A, a post-effective amendment to the
Registration Statement (including an amended Prospectus), containing such Rule
430A Information.
k. If the Company elects to rely
upon Rule 462(b), the Company shall both file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) and pay the
applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the
earlier of (i) 10:00 P.M. Eastern Time on the date hereof and (ii) the time
confirmations are sent or given, as specified by Rule 462(b)(2).
l. 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 Section 13, 14 or 15 of the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
m. During a period of 180 days from
the date of the Prospectus, the Company will not, without the prior written
consent of Vector, (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 to purchase or otherwise transfer or dispose of, directly or
indirectly, any share of Common Stock or any securities convertible into or
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 any
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company
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referred to in the Prospectus or (D) any shares of Common Stock issued pursuant
to any non-employee director stock plan.
n. The Company has furnished or
will furnish to you "lock-up" letters, in form and substance satisfactory to
you, signed by Boehringer Ingelheim International GmbH ("BI") and each of the
Company's current officers and directors and each of its stockholders designated
by you.
o. The Company will supply the
Underwriters with copies of all correspondence to and from, and all documents
issued to and by, the Commission in connection with the registration of the
Securities under the 0000 Xxx.
p. Prior to the Closing Date, the
Company shall furnish to the Underwriters, as soon as they have been prepared,
copies of any unaudited interim financial statements of the Company for any
periods subsequent to the periods covered by the financial statements appearing
in the Registration Statement and the Prospectus.
q. Prior to the Closing Date, the
Company will issue no press release or other communications directly or
indirectly and hold no press conference with respect to the Company, the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company, or the offering of the Securities, without the prior
written consent of the Representatives unless in the judgment of the Company and
its counsel, and after notification to the Representatives, such press release
or communication is required by law.
r. The Company has not taken, nor
will it take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the
Securities.
s. The Company will use its best
efforts to have the Securities approved for listing on NNM.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter that:
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a. When the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective amendment thereto
becomes effective, at the date of the Prospectus, if different, and at the
Closing Date and the Option Closing Date, as the case may be, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied or will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and will
not contain any 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. The Prospectus and any supplements or amendments thereto will
not at the date of the Prospectus, at the date of any such supplements or
amendments, or at the Closing Date or the Option Closing Date, if any, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is used,
the Company will comply with the requirements of Rule 434 and the Prospectus
shall not be "materially different," as such term is used in Rule 434, from the
Prospectus included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or Prospectus
relating to any Underwriter made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter, through
Vector expressly for use in the Registration Statement or Prospectus. The
Company has not distributed any offering materials in connection with the
offering or sale of the Securities other than the Registration Statement, the
preliminary prospectus, the Prospectus, the Term Sheet, if applicable, or any
other materials, if any, permitted by the 1933 Act or the 1933 Act Regulations.
b. Each preliminary prospectus and
the prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
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Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
c. The accountants who certified
the financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
d. The financial statements
included in the Registration Statement and the Prospectus present fairly the
financial position of the Company as of the dates indicated and the results of
its operations for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis; and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. The financial
information and statistical data set forth in the Prospectus are prepared on an
accounting basis consistent with such financial statements.
e. Since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (i) there has been no material adverse
change or, to the knowledge of the Company, any development involving a
prospective material adverse change in or affecting the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, (ii) there
have been no transactions entered into by the Company, other than those in the
ordinary course of business, which are material with respect to the Company, and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock. The Company has no
material contingent obligations which are not disclosed in the Registration
Statement.
f. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified
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as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company.
g. The Company does not own,
directly or indirectly, any shares of stock or any other equity or long-term
debt securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity.
h. Each of (i) this Agreement, (ii)
the Development and License Agreement, dated as of February 28, 1997 (the
"Development and License Agreement"), by and between the Company and BI, and
(iii) the Stock Purchase Agreement, dated as of February 28, 1997 (the "Stock
Purchase Agreement" and, together with the Development and License Agreement,
the "BI Agreements"), by and between the Company and BI has been duly executed
and delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights generally or by
general principles of equity and except as rights to indemnity and contribution
hereunder may be limited by Federal or state securities laws or the public
policy underlying such laws.
i. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to this
Agreement or pursuant to reservations, agreements, employee or director benefit
plans or the exercise of convertible securities referred to in the Prospectus);
the shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable and have not
been issued in violation of or are not otherwise subject to any preemptive or
other similar rights; the Securities have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and the Common Stock to be
issued pursuant to the BI Agreements (the "BI Securities") have been duly
authorized for issuance and sale to BI pursuant to the BI Agreements, and, the
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Securities when issued and delivered by the Company pursuant to this Agreement
and the BI Securities when issued and delivered by the Company pursuant to the
BI Agreements against payment of the consideration set forth herein and therein,
will be validly issued and fully paid and non-assessable; the certificates
evidencing the Securities and the BI Securities are in due and proper form under
Delaware law; the authorized capital stock of the Company, including the
Securities and the BI Securities, conforms to all statements relating thereto
contained in the Prospectus; and the issuance of the Securities and the BI
Securities is not subject to preemptive or other similar rights. There are no
outstanding subscriptions, options, warrants, convertible or exchangeable
securities or other rights granted to or by the Company to purchase shares of
Common Stock or other securities of the Company and there are no commitments,
plans or arrangements to issue any shares of Common Stock or any security
convertible into or exchangeable for Common Stock, in each case other than as
described in the Prospectus.
j. Except as disclosed in the
Registration Statement and except as would not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company, (A) the Company is in compliance with all applicable
Environmental Laws, (B) the Company has all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with the requirements of such permits authorizations and approvals,
(C) there are no pending or, to the best knowledge of the Company, threatened
Environmental Claims against the Company and (D) under applicable law, there are
no circumstances with respect to any property or operations of the Company that
are reasonably likely to form the basis of an Environmental Claim against the
Company.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgement, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental
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authority. "Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way to
any Environmental Law.
k. The Company is not (i) in
violation of its charter or bylaws or (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust, or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject; except in the case of clause (ii)
above, as would not, singly or in the aggregate, have a material adverse effect
on the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company. The execution, delivery and performance of
each of this Agreement and the BI Agreements and the consummation of the
transactions contemplated herein and therein and compliance by the Company with
its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or any
applicable statute, law, rule, regulation, ordinance, decision, directive or
order.
l. No labor dispute with the
employees of the Company exists or, to the best knowledge of the Company, is
imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, manufacturers or
contractors which might, singly or in the aggregate, be expected to result in
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company.
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m. There is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, singly or in the
aggregate, might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, or which, singly or in the aggregate, might materially
and adversely affect the properties or assets thereof or which might materially
and adversely affect the consummation of this Agreement or the BI Agreements;
all pending legal or governmental proceedings to which the Company is a party or
of which any of its property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
n. The Company owns or is licensed
to use all patents, patent applications, inventions, trademarks, trade names,
applications for registration of trademarks, service marks, service xxxx
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets (herein called the "Proprietary Rights") which are material to the
business of the Company as now conducted and as proposed to be conducted, in
each case as described in the Prospectus. The Company takes security measures
adequate to assert trade secret protection in its non- patented technology. The
description of the Proprietary Rights is correct in all material respects and
fairly and correctly describes the Company's rights with respect thereto. Except
as specifically identified and described in the Prospectus, the Company does not
have any knowledge of, and the Company has not given or received any notice of,
any pending conflicts with or infringement of the rights of others with respect
to any Proprietary Rights or with respect to any license of Proprietary Rights.
Except as specifically identified and described in the Prospectus, no action,
suit, arbitration, or legal, administrative or other proceeding, or
investigation is pending, or, to the best knowledge of the Company, threatened,
which involves any Proprietary Rights. The Company is not subject to any
judgment, order, writ, injunction or decree of
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any court or any Federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or any arbitrator, nor has it entered into or is a party to any
contract which restricts or impairs the use of any such Proprietary Rights in a
manner which would have a material adverse effect on the use of any of the
Proprietary Rights. To the best knowledge of the Company, no Proprietary Rights
used by the Company, and no services or products sold by the Company, conflict
with or infringe upon any proprietary rights available to any third party. The
Company has not received written notice of any pending conflict with or
infringement upon such third-party proprietary rights. The Company has not
entered into any consent, indemnification, forbearance to xxx or settlement
agreement with respect to Proprietary Rights other than in the ordinary course
of business. To the best knowledge of the Company, no claims have been asserted
by any person with respect to the validity of the Company's ownership or right
to use the Proprietary Rights and, to the best knowledge of the Company, there
is no reasonable basis for any such claim to be successful. The Proprietary
Rights are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or cancelled or is the subject of cancellation
or other adversarial proceedings, and all applications therefore are pending and
are in good standing. The Company has complied, in all material respects, with
its respective contractual obligations relating to the protection of the
Proprietary Rights used pursuant to licenses. To the best knowledge of the
Company, no person is infringing on or violating the Proprietary Rights owned or
used by the Company.
o. No registration, authorization,
approval, qualification or consent of any court or governmental authority or
agency is necessary in connection with the offering, issuance or sale of the
Securities hereunder, except such as may be required under the 1933 Act or the
1933 Act Regulations or state securities or Blue Sky laws (or such as may be
required by the National Association of Securities Dealers, Inc. ("NASD")).
p. The Company possesses and is
operating in compliance with all material licenses, certificates, consents,
authorities, approvals and permits (collectively, "permits") from all state,
Federal, foreign and other regulatory agencies or bodies necessary to conduct
the business now operated by it, and the Company has not received any notice of
proceedings relating to the
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revocation or modification of any such permit or any circumstance which would
lead it to believe that such proceedings are reasonably likely.
q. Except as described in the
Prospectus, there are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
r. No order preventing or
suspending the use of any preliminary prospectus has been issued and no
proceedings for that purpose are pending, threatened, or, to the knowledge of
the Company, threatened or contemplated by the Commission; and to the best
knowledge of the Company, no order suspending the offering of the Securities in
any jurisdiction designated by the Underwriters pursuant to Section 5(g) of this
Agreement has been issued and, to the best knowledge of the Company, no
proceedings for that purpose have been instituted or threatened or are
contemplated.
s. The Company has good and
marketable title to its properties, including but not limited to Proprietary
Rights, free and clear of all material security interests, mortgages, pledges,
liens, charges, encumbrances, claims and equities of record. The properties of
the Company are, in the aggregate, in good repair (reasonable wear and tear
excepted), and suitable for their respective uses. Any real properties held
under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the conduct of the business of the Company.
t. The Company 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
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assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
u. The Company has conducted and is
conducting its business in compliance with all applicable Federal, state, local
and foreign statutes, laws, rules, regulations, ordinances, codes, decisions,
decrees, directives and orders, except where the failure to do so would not,
singly or in the aggregate, have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company.
v. To the best of the Company's
knowledge, neither the Company nor any employee or agent of the Company has made
any payment of funds of the Company or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
w. The Company is not now, and
after sale of the Securities to be sold by it hereunder and application of the
net proceeds from such sale as described in the Prospectus under the caption
"Use of Proceeds" will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
x. All offers and sales of capital
stock of the Company, including in connection with the issuance and sale of the
BI Securities, were at all relevant times duly registered or exempt from the
registration requirements of the 1933 Act and were duly registered or subject to
an available exemption from the registration requirements of the applicable
state securities or Blue Sky laws.
y. The Common Stock is registered
pursuant to Section 12(g) of the 1934 Act. The Securities have been duly
authorized for quotation on NNM. The Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the 1934 Act or delisting the Common Stock from NNM, nor has the Company
received any notification that the Commission or NNM is contemplating
terminating such registration or listing.
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z. Neither the Company nor, to its
knowledge, any of its officers, directors or affiliates has taken, and at the
Closing Date and at any later Option Closing Date, neither the Company nor, to
its knowledge, any of its officers, directors or affiliates will have taken,
directly or indirectly, any action which has constituted, or might reasonably be
expected to constitute, the stabilization or manipulation of the price of sale
or resale of the Securities.
aa. The Company maintains
insurance of the types and in amounts adequate for its business and consistent
with insurance coverage maintained by similar companies in similar business,
including but not limited to, insurance covering clinical trial liability and
real and personal property owned or leased against theft, damage, destruction,
acts of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
bb. The Company has filed all
material tax returns required to be filed, which returns are true and correct in
all material respects, and the Company is not in default in the payment of any
taxes, including penalties and interest, assessments, fees and other charges,
shown thereon due or otherwise assessed, other than those being contested in
good faith and for which adequate reserves have been provided or those currently
payable without interest which were payable pursuant to said returns or any
assessments with respect thereto.
cc. Except as described in the
Prospectus, to the best of the Company's knowledge, there are no rulemaking or
similar proceedings before The United States Food and Drug Administration or
comparable Federal, state, local or foreign government bodies which involve or
affect the Company, which, if the subject of an action unfavorable to the
Company, could involve a prospective material adverse change in or effect on the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company.
dd. The Company has not received
any communication (whether written or oral) relating to the termination or
threatened termination or modification or threatened modification of any
material consulting, licensing, marketing, research and development, cooperative
or any similar agreement, including,
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without limitation, the BI Agreements and the technology and license agreements
listed under the sections of the Prospectus entitled, "Business--Boehringer
Ingelheim" and "Business--Technology and License Agreements," respectively. Each
such agreement is in effect substantially as described in such section of the
Prospectus.
ee. To the knowledge of the
Company, if any full-time employee identified in the Prospectus has entered into
any non-competition, non-disclosure, confidentiality or other similar agreement
with any party other than the Company, such employee is neither in violation
thereof nor is expected to be in violation thereof as a result of the business
conducted or expected to be conducted by the Company as described in the
Prospectus or such person's performance of his obligations to the Company; and
the Company has not received written notice that any consultant or scientific
advisor of the Company is in violation of any non-competition, non-disclosure,
confidentiality or similar agreement. The agreements executed by the Company's
employees, consultants and other advisors respecting trade secrets,
confidentiality, or intellectual property rights are valid, binding and
enforceable in accordance with their express terms.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify
and hold harmless (i) each Underwriter and (ii) each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act (any
of the persons referred to in this clause (ii) being hereinafter referred to as
a "controlling person") and (iii) the respective directors, officers, partners
and employees of any of the Underwriters or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Person") to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities and expenses whatsoever (including, without
limitation, all reasonable costs of pursuing, investigating and defending any
claim, suit or action or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person), directly or indirectly, caused
by, related to, based upon or arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
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Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information, if applicable, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Underwriter furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use in
connection therewith; PROVIDED, HOWEVER, that the indemnification contained in
this paragraph a. with respect to any preliminary prospectus shall not inure to
the benefit of any Underwriter (or related Indemnified Person) on account of any
such loss, claim, damage, liability or expense arising from the sale of the
Securities by such Underwriter to any person if a copy of the Prospectus shall
not have been delivered or sent to such person within the time required by the
1933 Act or the 1933 Act Regulations, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus (or any amendment or
supplement thereto), provided that the Company has delivered the Prospectus to
the several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending.
b. If any action, suit or
proceeding shall be brought against any Indemnified Person in respect of which
indemnity may be sought against the Company, such Indemnified Person shall
promptly notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Indemnified Person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel
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shall be at the expense of such Indemnified Person unless (i) the indemnifying
parties have agreed in writing to pay such fees and expenses, (ii) the
indemnifying parties have failed to assume the defense and employ counsel or
(iii) the named parties to any such action, suit, investigation or proceeding
(including any impleaded parties) include both such Indemnified Person and the
indemnifying parties and representation of such Indemnified Person and any
indemnifying party by the same counsel would, in the reasonable judgment of the
Indemnified Person, be inappropriate due to actual or potential differing
interests between them (in which case the indemnifying party shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such
Indemnified Person). It is understood, however, that the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Persons not having actual or potential differing interests with you
or among themselves, which firm shall be designated in writing by Vector, and
that all such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, which consent shall
not be unreasonably withheld, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless any
Indemnified Person, to the extent provided in the preceding paragraph, from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
c. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement, any person who
controls the Company within the meaning of Section 15 of the 1933 Act, to the
same extent as the foregoing indemnity from the Company to each Indemnified
Person, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through Vector
expressly for use in the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto. If any action,
suit, investigation or proceeding shall be brought against the
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Company, any of its directors, any such officer or any such controlling person
based on the Registration Statement, the Prospectus or any preliminary
prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above, and the Company, its directors, any such officer and any
such controlling person shall have the rights and duties given to the
Indemnified Persons by paragraph (a) above.
d. If the indemnification provided
for in this Section 7 is unavailable to, or insufficient to hold harmless, an
indemnified party under paragraphs (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (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 or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or judicial determination, 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 the
Underwriters on the other hand, 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 shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus or, if Rule 434 is used, the corresponding
location on the Term Sheet. 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 the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity and contribution obligations of the Company set forth herein shall
be in addition to any liability or
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obligation the Company may otherwise have to any Indemnified Person.
e. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by a pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter (or any of its related Indemnified
Persons) shall be required to contribute (whether pursuant to subsection (a) or
(c) or otherwise) any amount in excess of the underwriting discount applicable
to the Securities underwritten by such Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Securities set forth opposite their names in Schedule I hereto (or such
numbers of Securities increased as set forth in Section 10 hereof) and not
joint.
f. No indemnifying party shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened action, suit or proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such action, suit or proceeding.
g. Any losses, claims, damages,
liabilities or expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 7 shall be paid by the
indemnifying party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The
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indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Indemnified Person, the Company, its
directors or officers or any person controlling the Company, (ii) acceptance of
any Securities and payment therefor hereunder and (iii) any termination of this
Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Initial Securities
hereunder are subject to the following conditions:
a. The Registration Statement,
including any Rule 462(b) Registration Statement, shall have become effective on
the date hereof; 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. If the Company has elected to rely
upon Rule 430A, Rule 430A Information previously omitted from the effective
Registration Statement pursuant to Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time period
and the Company shall have provided evidence satisfactory to the Underwriters of
such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A. If the Company has elected to rely upon Rule 434, a
Term Sheet shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) within the prescribed time period.
b. The Underwriters shall have
received:
(i) The favorable opinion, dated as of the
Closing Date, of Xxxx and Xxxx LLP, counsel for the Company,
in form and substance reasonably satisfactory to counsel for
the Underwriters, to the effect that:
A. The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
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B. The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and the Prospectus and to
enter into and perform its obligations under this
Agreement and the BI Agreements.
C. The Company is duly qualified as a
foreign corporation to transact business and is in
good standing in ___________.
D. The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans or
the exercise of convertible securities referred to
in the Prospectus), and the shares of issued and
outstanding capital stock of the Company, including
the Common Stock, have been duly authorized and
validly issued and are fully paid and non-assessable
and, to their knowledge and information, have not
been issued in violation of or are not otherwise
subject to any preemptive rights or other similar
rights.
E. The Securities and the BI Securities
have been duly authorized for issuance and sale to
the Underwriters and BI pursuant to this Agreement
and the BI Agreements and, when issued and delivered
by the Company pursuant to this Agreement and the BI
Agreements against payment of the consideration set
forth herein and therein, will be validly issued and
fully paid and non-assessable; and, to their
knowledge, the issuance of the Securities and the BI
Securities is not subject to preemptive or other
similar rights.
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F. To their knowledge, except as described
in the Prospectus, there are no outstanding options,
warrants or other rights granted to or by the
Company to purchase shares of Common Stock or other
securities of the Company and there are no written
commitments, plans or arrangements to issue any
shares of Common Stock or other securities.
G. This Agreement and each of the BI
Agreements has been duly authorized, executed and
delivered by the Company.
H. At the time the Registration Statement
became effective and at the Closing Date, the
Registration Statement (other than the financial
statements and supporting schedules included
therein, as to which no opinion need be rendered)
complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act
Regulations.
I. The form of certificate used to evidence
each of the Securities and the BI Securities is in
due and proper form and complies with all applicable
statutory requirements.
J. To their knowledge, there are no legal
or governmental proceedings pending or threatened
which individually or in the aggregate are required
to be disclosed in the Registration Statement other
than those disclosed therein.
K. The information in the Prospectus under
"Risk Factors--Shares Eligible for Future Sale;
Registration Rights," "Business--Boehringer
Ingelheim,"--Technology and License Agreements,"
"Certain Transactions," "Description of Capital
Stock" and
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"Shares Eligible for Future Sale" to the extent that
it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, has been reviewed by them and is
correct in all material respects and fairly and
correctly presents the information with respect
thereto.
L. To their knowledge, there are no
contracts, indentures, mortgages, loan agreements,
deeds, trusts, notes, leases, subleases, voting
trusts, voting agreements or other instruments or
agreements required to be described or referred to
in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are
correct in all material respects and fairly and
correctly presents the information called for with
respect thereto; and to the best of their knowledge
and information, no default exists in the due
performance or observance of any material
obligation, agreement, covenant or condition
contained in any material contract, indenture,
mortgage, loan agreement, deed, trust, note, lease,
sublease, voting trust, voting agreement or other
instrument or agreement of the Company.
M. No authorization, approval, consent or
order of any court or governmental authority or
agency is required on behalf of the Company in
connection with the offering, issuance or sale of
the Securities to the Underwriters or the issuance
and sale of the BI Securities to BI, except, with
respect to the Securities, such as may be required
under the 1933 Act or the 1933 Act Regulations or
state securities or Blue Sky laws or such as may be
required by the NASD; and
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the execution, delivery and performance of this
Agreement and the BI Agreements and the consummation
of the transactions contemplated herein and therein
and the compliance by the Company with its
obligations hereunder and thereunder will not
conflict with or constitute a breach of, or default
under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract,
indenture, mortgage, loan agreement, note, deed,
trust, lease, sublease, voting trust, voting
agreement or other instrument or agreement
("instruments") listed on a schedule to be attached
to their opinion (which schedule shall include all
instruments (A) filed as an exhibit to the
Registration Statement or (B) included in a
certificate of an officer of the Company setting
forth any other instruments material to the Company
or any other instrument identified by you or your
counsel) to which the Company is a party or by which
it may be bound, or to which any of the property or
assets of the Company is subject, nor will such
action result in any violation of the provisions of
the charter or bylaws of the Company or any
applicable statute, law, rule, regulation,
ordinance, code, decision or directive or any order
known to them of any court or governmental agency
having jurisdiction over the Company or any of its
properties or assets.
N. Except as described in the Prospectus,
to their knowledge, there are no agreements between
the Company and any persons providing such persons
with registration or other similar rights to have
any securities registered pursuant to the
Registration Statement or otherwise registered by
the Company under the 1933 Act.
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O. The Company is not an "investment
company" or a company "controlled" by an "investment
company" within the meaning of the Investment
Company Act of 1940, as amended.
P. All sales of the Company's capital stock
during the nineteen months immediately prior to the
date hereof were at all relevant times duly
registered or exempt from the registration
requirements of the 1933 Act.
Q. To the best of their knowledge and
information, the Company is in compliance with, and
conducts its business in conformity with, all
applicable laws and regulations relating to the
operation of its business as described in the
Registration Statement, except to the extent that
any failure so to comply or conform would not have a
material adverse effect upon the business or
condition, financial or otherwise, of the Company.
R. The Registration Statement has become
effective under the 1933 Act; any required filing of
the Prospectus, and any supplements thereto or the
Term Sheet, pursuant to Rule 424(b) and if
applicable, Rule 434, has been made in the manner
and within the time period required; and to their
best knowledge and information, no stop order
suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings therefor have been instituted or are
pending or contemplated under the 1933 Act.
S. The Company owns or is the exclusive
licensee of the United States and foreign patents
and patent applications listed on Schedule II and is
the non-exclusive
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licensee of the United States and foreign patents
and patent applications listed on Schedule III. All
such patents or licenses are duly executed, validly
binding and enforceable in accordance with their
terms and, to the best of their knowledge and
information, the Company is not in default (declared
or undeclared) of any material provision of any such
licenses.
(ii) The favorable opinion, dated as of the
Closing Date, of Xxxxxx & Xxxxxxx LLP, patent counsel for the
Company, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
A. The statements in the Prospectus
relating to United States patent matters, under the
captions "Risk Factors--Patents and Proprietary
Rights; Third Party Rights" and "Business--Patents
and Proprietary Rights," insofar as such statements
constitute matters of law, legal conclusions, or
summaries of legal matters or proceedings, are
correct in all material respects and present fairly
the information purported to be shown.
B. To the best of their knowledge, with
respect to the United States patent applications
that are referred to in the Registration Statement
and listed in Schedules IV and V hereto (herein
called the "Applications"), the sections of the
Registration Statement entitled "Risk
Factors--Patents and Proprietary Rights; Third Party
Rights" and "Business--Patents and Proprietary
Rights," at the time the Registration Statement
became effective, did not contain any untrue
statement of material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein, not
misleading.
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C. To the best of their knowledge, with
respect to the Applications, the sections of the
Prospectus entitled "Risk Factors--Patents and
Proprietary Rights; Third Party Rights" and
"Business--Patents and Proprietary Rights," as of its
date and as of the Closing, do not contain any
untrue statement of material fact or omit to state a
material fact necessary to make the statements
therein, in light of the circumstances in which they
were made, not misleading.
D. With respect to United States patent
matters, nothing has come to their attention which
would lead them to believe that the sections of the
Registration Statement entitled "Risk
Factors--Patents and Proprietary Rights; Third Party
Rights" and "Business--Patents and Proprietary
Rights," at the time the Registration Statement
became effective, contained any untrue statement of
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein, not misleading.
E. With respect to United States patent
matters, nothing has come to their attention which
would lead them to believe that the sections of the
Prospectus entitled "Risk Factors--Patents and
Proprietary Rights; Third Party Rights" and
"Business--Patents and Proprietary Rights," as of
the Prospectus' date and as of the Closing Date,
contain any untrue statement of material fact of
omit to state a material fact necessary to make the
statements therein, in light of the circumstances in
which they were made, not misleading.
F. The Company is listed in the records of
the appropriate foreign patent offices as the sole
assignee of record of
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each of the foreign patents that are referred to in
the Registration Statement and listed on Schedule VI
hereto (herein called the "Foreign Patents") and
each of the foreign applications that are referred
to in the Registration Statement and listed on
Schedule VII hereto (herein called the "Foreign
Applications"). To the best of their knowledge,
there are no asserted or unasserted claims of any
persons relating to the scope or ownership of the
Foreign Patents or the Foreign Applications, there
are no liens which have been filed against any of
the Foreign Patents or the Foreign Applications,
there are no material defects of form in the
preparation or filing of the Foreign Applications,
the Foreign Applications are being diligently
prosecuted, and none of the Foreign Applications has
been finally rejected or abandoned.
G. Except as otherwise disclosed in the
Prospectus, nothing has come to their attention that
leads them to believe that the Applications and the
Foreign Applications will not eventuate in issued
patents, or that any patents issued in respect of
any such Applications or Foreign Applications will
not be valid or will not afford the Company
reasonable patent protection relative to the subject
matter thereof.
H. To the best of their knowledge, except
as described in the Prospectus, and with the
exception of proceedings before the United States
Patent and Trademark Office, there are no pending,
or threatened, legal or governmental proceedings
with respect to any of the United States patents
referred to in the Registration Statement and listed
on Schedules II and III hereto (herein called the
"Patents") or the Applications.
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I. According to the records of the United
States Patent and Trademark Office, which are
current as of [DATE], the Company owns each of the
Patents and the patent applications that are
referred to in the Registration Statement and listed
on Schedule IV hereto.
J. To the best of their knowledge, except
as described in the Prospectus and except for rights
which may be reserved to the United States
government, no third party has any rights to any of
the Patents or Applications.
K. To the best of their knowledge, no
interference has been declared or provoked with
respect to any of the Patents or the Applications.
L. To the best of their knowledge, there is
no presently-pending inventorship challenge with
respect to any of the Patents or the Applications.
M. To the best of their knowledge, without
any searches specifically having been conducted, or
having been required to have been conducted, no
third party is infringing on any of the Patents.
N. To the best of their knowledge, the
Company has not received any notice challenging the
Company's rights to any of the Patents or the
Applications.
O. To the best of their knowledge, the
Company has not received any notice challenging the
validity or enforceability of any of the Patents.
P. While there can be no guarantee that any
particular patent application will
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issue as a patent, each of the Applications hereto
presently is being properly and diligently
prosecuted in the United States Patent and Trademark
Office.
Q. To the best of their knowledge, for each
Application, all information known to them to be
"material to patentability," as defined in 37 C.F.R.
sec. 1.56(b), has been disclosed, or will be
disclosed, pursuant to 37 C.F.R. sec. 1.97, to the
United States Patent and Trademark Office.
R. To the best of their knowledge, without
any searches specifically having been conducted, or
having been required to have been conducted, for the
purpose of rendering this opinion, while there can
be no guarantee that any particular patent
application will issue as a patent, each of the
Applications discloses patentable subject matter.
S. To the best of their knowledge, except
as otherwise disclosed in the Prospectus, no claim,
which is presently pending, has been asserted
against the Company relating to the potential
infringement of, or conflict with, any Patents,
trademarks, copyrights, trade secrets, or
proprietary rights, of others.
(iii) The favorable opinion, dated as of
the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), counsel for the Underwriters with respect to the
issuance and sale of the Securities, the Registration
Statement and the Prospectus and such other related matters
as the Underwriters shall reasonably request.
(iv) In giving their opinions required by
subsections (b)(i) and (b)(iii), respectively, of this
Section 8, Xxxx and Xxxx LLP and Skadden, Arps,
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Slate, Xxxxxxx & Xxxx (Illinois) shall each additionally
state that nothing has come to their attention that leads
them to believe that the Registration Statement (except for
financial statements and schedules and other financial
information included therein, as to which counsel need make
no statement), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (except for financial statements and schedules and
other financial information included therein, as to which
counsel need make no statement), as of its date (unless the
term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs
from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at
the time it is first provided to the Underwriters for such
use) or at the Closing Date or the Option Closing Date, as
the case may be, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
c. (i) There shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material adverse
change or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, (ii) the representations and warranties of the
Company in Section 6 hereof shall be true and correct with the same force and
effect as though expressly made at and as of the Closing Date, except to the
extent that any such representation or warranty relates to a specific date,
(iii) the Company shall have complied
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in all material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Date, (iv) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by the
Commission and (v) the Representatives shall have received a certificate, dated
the Closing Date and signed by the President or any Vice President and the chief
financial or accounting officer of the Company to the effect set forth in
clauses (i), (ii), (iii) and (iv) above.
d. Concurrently with, or prior to,
the issuance and sale of the Securities and the Closing hereunder, the Company
shall have issued and sold the BI Securities to BI pursuant to the BI Agreements
and shall have received payment of the consideration set forth therein and as
provided in the Prospectus.
e. At the time of the execution of
this Agreement, the Underwriters shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the Underwriters,
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. The Underwriters shall have
received from Ernst & Young LLP a letter, dated as of the Closing Date, 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 the Closing Date.
g. The Securities shall have been
approved for quotation on NNM.
h. In the event that the
Underwriters exercise their option provided in Section 2 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 hereunder shall be true
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and correct as of the Option Closing Date and, at the relevant Option Closing
Date, the Underwriters shall have received:
(1) A certificate, dated
such Option Closing Date, of the President or any Vice
President of the Company and of the chief financial or
accounting officer of the Company confirming that the
certificate delivered at the Closing Date pursuant to Section
8 (c) hereof remains true and correct as of such Option
Closing Date.
(2) The favorable opinion
of Xxxx and Xxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated
such Option Closing Date, relating to the Option Securities
to be purchased on such Option Closing Date and otherwise to
the same effect as the opinion required by Sections 8 (b)(i)
and 8 (b)(iv) hereof (except such subsections thereof as are
then inapplicable).
(3) The favorable opinion
of Xxxxxx & Xxxxxxx LLP, patent counsel for the Company, in
form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date to the same
effect as the opinion required by Section 8 (b)(ii) hereof.
(4) The favorable opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel
for the Underwriters, dated such Option Closing Date,
relating to the Option Securities to be purchased on such
Option Closing Date and otherwise to the same effect as the
opinion required by Sections 8 (b)(iii) and 8 (b)(iv) hereof.
(5) A letter from Ernst &
Young LLP in form and substance satisfactory to the
Underwriters and dated such Option Closing Date,
substantially the same in form and substance as the letter
furnished to the
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Underwriters pursuant to Section 8(e) hereof, except that the
"specified date" in the letter furnished pursuant to this
Section 8(g)(5) shall be a date not more than three business
days prior to such Option Closing Date.
i. At the date of this Agreement,
the Underwriters shall have received lock-up agreements in form and substance
satisfactory to the Underwriters by the persons designated by you.
j. 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 and related proceedings, 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
Underwriters and counsel for the Underwriters.
k. The NASD shall not have raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
l. Any certificate or document
signed by any officer of the Company and delivered to you, as Representatives of
the Underwriters, or to counsel for the Underwriters, pursuant to this Agreement
shall be deemed a representation and warranty by the Company to each Underwriter
as to the statements made therein.
m. If any condition specified in
this Section 8 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 an Option Closing Date which is after the Closing Date,
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 Date or such an Option Closing Date as the case
may be, and such termination shall be without liability of any party to any
other party except as provided in Section 9 and except
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that Sections 6 and 7 shall survive any such termination and remain in full
force and effect.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each preliminary prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight and charges for
counting and packaging) of such copies of the Registration Statement, each
preliminary prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp
taxes in connection with the original issuance and sale of the Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, the preliminary
and supplemental Blue Sky Memoranda and all other agreements or documents
printed (or reproduced) and delivered in connection with the original issuance
and sale of the Securities; (v) the registration of the Common Stock under the
1934 Act and the quotation of the Securities on NNM; (vi) the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of one counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees and the reasonable fees and expenses of
one counsel for the Underwriters incident to securing any required review by the
NASD; and (viii) the fees and expenses of the Company's accountants and the fees
and expenses of counsel (including local and special counsel) for the Company.
If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 or pursuant to clauses (ii), (iii), (iv) and (v)
of Section 11 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the Company to
comply, in any
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material respect, with the terms or fulfill, in any material respect, any of the
conditions of this Agreement, the Company agrees to reimburse the
Representatives for all reasonable out-of-pocket expenses (including reasonable
fees and expenses of one counsel for the Underwriters) incurred by you in
connection herewith.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by or on behalf of the
parties hereto; or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the Securities
may commence, when notification of the effectiveness of the Registration
Statement or such post-effective amendment has been released by the Commission.
Until such time as this Agreement shall have become effective, it may be
terminated by the Company, by notifying you, or by you, as Representatives of
the several Underwriters, by notifying the Company.
If one or more of the Underwriters shall fail on the Closing
Date to purchase the Initial 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 Initial Securities, the
non-defaulting Underwriters shall be obligated 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 Initial Securities, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
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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, either the Representatives or the Company shall
have the right to postpone the Closing Date 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.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. The Underwriters may terminate
this Agreement, by written notice to the Company, at any time at or prior to the
Closing Date or Option Closing Date, as the case may be, (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, (ii) if there has occurred any change in the
financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in your judgement, impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities,
(iii) if trading in the Common Stock has been suspended by the Commission, or if
trading generally on the American Stock Exchange, the New York Stock Exchange or
in the over-the-counter markets has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by such exchange or markets or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Illinois authorities, (iv) the enactment,
publication, decree or other promulgation of any Federal or state statute,
regulation, rule or order of any court or other governmental
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authority which in your judgement materially and adversely affects or may
materially or adversely affect the business or operations of the Company or (v)
the taking of any action by any Federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your judgement has a material
adverse effect on the securities markets in the United States, and would in your
judgement make it impracticable or inadvisable to market the Securities or to
enforce any contract for the sale thereof. Notice of such termination may be
given by telegram, telecopy or telephone and shall be subsequently confirmed by
letter.
b. If this Agreement is terminated
pursuant to this Section 11, such termination shall be without liability of any
party to any other party except as provided in Section 9 and provided further
that Sections 6 and 7 shall survive such termination and remain in full force
and effect.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements
set forth in the last paragraph on the cover page, the stabilization legend on
the inside front cover page, and the statements under the caption "Underwriting"
in any preliminary prospectus and in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters through you as such
information is referred to in Sections 5(a) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5,
10 and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company at the office of the
Company at, 000 Xxxxxxxx Xxxxx, 0xx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chief Executive Officer; or (ii) if to you, as Representatives of the
several Underwriters, care of Vector Securities International, Inc., 0000 Xxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Syndicate
Department.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois
applicable to contracts made and to be performed within the State of Illinois.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof shall have been executed
and delivered on behalf of each party hereto.
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15. SUCCESSORS. This Agreement has been and is made solely for
the benefit of the several Underwriters, the Company, its directors and
officers, the other persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Securities in his
status as such purchaser.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
TRANSCEND THERAPEUTICS, INC.
By:
-------------------------------
President and Chief
Executive Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
VECTOR SECURITIES INTERNATIONAL, INC.
EVEREN SECURITIES, INC.
As Representatives of the Several Underwriters
By VECTOR SECURITIES INTERNATIONAL, INC.
By:
-----------------------------
Vice President
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SCHEDULE I
TRANSCEND THERAPEUTICS, INC.
Number of
---------
Initial
-------
Securities
----------
Purchased
---------
from the
--------
Underwriter Company
----------- -------
Vector Securities
International, Inc. . .
EVEREN Securities, Inc. .
Total
----------
47
