EXHIBIT 1.3
2,000,000 SHARES
IDEC PHARMACEUTICALS CORPORATION
(A DELAWARE CORPORATION)
COMMON STOCK
(PAR VALUE $.0005 PER SHARE)
INTERSYNDICATE AGREEMENT
Agreement dated November ?, 2000 between (A) Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Merrill (NY)"), Xxxxxxx Xxxxx Xxxxxx Inc. and Banc of
America Securities LLC, as representatives (the "U.S. Representatives") of the
underwriters (the "U.S. Underwriters") listed in Schedule A to the U.S. Purchase
Agreement (the "U.S. Purchase Agreement") of even date herewith with IDEC
Pharmaceuticals Corporation (the "Company"), (B) Xxxxxxx Xxxxx International
("MLI"), Salomon Brothers International Limited and Bank of America
International Limited (the "Lead Managers") for the underwriters (the
"Managers") listed in Schedule A to the International Purchase Agreement (the
"International Purchase Agreement") of even date herewith with the Company. The
U.S. Purchase Agreement and the International Purchase Agreement are together
referred to herein as the "Purchase Agreements". Terms not defined herein are
used as defined in the Purchase Agreements referred to above.
The U.S. Underwriters, pursuant to the U.S. Purchase Agreement, have agreed
to purchase the Initial U.S. Securities and have been granted an option by the
Company to purchase the U.S. Option Securities to cover over-allotments, and the
Managers, pursuant to the International Purchase Agreement, have agreed to
purchase the Initial International Securities and have been granted an option by
the Company to purchase the International Option Securities to cover
over-allotments. In connection with the foregoing, the U.S. Underwriters and the
Managers deem it necessary and advisable that certain of the activities of the
U.S. Underwriters and the Managers be coordinated pursuant to this Agreement.
SECTION 1. The U.S. Underwriters, acting through Xxxxxxx (NY), and the
Managers, acting through MLI, agree that they will consult each other as to the
availability of the sale of the Common Stock purchased from the Company pursuant
to the U.S. Purchase Agreement and the International Purchase Agreement from
time to time until the termination of the selling restrictions applicable to the
respective offerings by Xxxxxxx (NY) and MLI. Based upon information received
from the Managers and the U.S. Underwriters, respectively, MLI agrees to advise
Merrill (NY) and Xxxxxxx (NY) agrees to advise MLI, from time to time upon
request during the consultation period contemplated above, of the respective
number of International Securities purchased pursuant to the International
Purchase Agreement and U.S. Securities purchased pursuant to the U.S. Purchase
Agreement remaining unsold. From time to time as mutually agreed upon between
MLI and Merrill (NY), (a) MLI will sell for the account of one or more Managers
to Merrill (NY), for the account of one or more U.S. Underwriters, such number
of International Securities purchased pursuant to the International Purchase
Agreement and remaining unsold; and (b) Merrill (NY) will sell for the account
of one or more U.S. Underwriters to MLI, for the account of one or more
Managers, such number of U.S. Securities purchased pursuant to the U.S. Purchase
Agreement and remaining unsold.
Unless otherwise determined by mutual agreement of Merrill (NY) and
MLI, the price of any Common Stock so purchased or sold shall be the initial
public offering price less the selling concession in each case as set forth in
the U.S. Prospectus. Settlement between Xxxxxxx (NY) and MLI with respect to any
Common Stock transferred hereunder at least three business days prior to the
Closing Time shall be made at Closing Time and, in the case of purchases and
sales made thereafter, as promptly as practicable but in no event later than
three business days after the transfer date. Certificates representing the
Common Stock so purchased shall be delivered on or about the respective
settlement dates. The liability for payment to the Company of the purchase price
of the Common Stock being purchased by the U.S. Underwriters and the Managers
under the Purchase Agreements shall not be affected by the provisions of this
Agreement.
Each U.S. Underwriter, acting through the U.S. Representatives, agrees
that, except for purchases and sales pursuant to this Agreement and
stabilization transactions contemplated hereunder conducted through Merrill
(NY), it has offered or sold and will offer, sell or deliver Common Stock,
directly or indirectly, only to persons whom it believes to be United States
Persons or Canadian Persons (as such terms are defined below) and persons whom
it believes intend to reoffer, resell or deliver the same, directly or
indirectly, to United States Persons or Canadian Persons, and any bank, broker
or dealer to whom such U.S. Underwriter may sell Common Stock will agree that it
will only offer, resell or deliver Common Stock directly or indirectly to
persons whom such bank, broker or dealer believes to be United States Persons or
Canadian Persons or at a reallowance only to other banks, brokers or dealers who
so agree.
Each Manager, acting through MLI, agrees that, except for purchases
and sales pursuant to this Agreement and stabilization transactions contemplated
hereunder conducted through Xxxxxxx (NY), it has not offered or sold and will
not offer, sell or deliver Common Stock, directly or indirectly, to any person
whom it believes to be a United States Person or a Canadian Person or any person
whom it believes intends to reoffer, resell or deliver the same, directly or
indirectly, to any United States Person or Canadian Person, and any bank, broker
or dealer to whom such Manager may sell Common Stock will agree that it will not
offer, resell or deliver any Common Stock directly or indirectly to any person
whom such bank, broker or dealer believes to be a United States Person or
Canadian Person nor at a reallowance to other banks, brokers or dealers who do
not so agree.
For purposes of this Agreement, "United States Person" shall mean any
individual who is resident in the United States, or any corporation, pension,
profit-sharing or other trust or other entity organized under or governed by the
laws of the United States or any political subdivision thereof (other than the
foreign branch or office of any United States Person), and shall include any
United States branch or office of a person other than a United States Person.
"United States" shall mean the United States of America, its territories, its
possessions and all areas subject to its jurisdiction. "Canadian Person" shall
mean any individual who is resident in Canada, or any corporation, pension,
profit-sharing or other trust or other entity organized under or governed by the
laws of Canada or any political subdivision thereof (other than the foreign
branch or office of any Canadian Person), and shall include any Canadian branch
or office of a person other than a Canadian Person. "Canada" shall mean Canada,
the provinces of Canada, its territories, its possessions and all areas subject
to its jurisdiction.
SECTION 2. All stabilization transactions shall be conducted at the
direction and subject to the control of Xxxxxxx (NY) as hereinafter provided, so
that stabilization activities worldwide shall be coordinated and conducted in
compliance with any applicable laws and regulations. From time to time upon the
request of MLI, Xxxxxxx (NY) will inform MLI of stabilization transactions
effected pursuant to this Section.
(a) The Lead Managers undertake, and agree to cause all Managers to
undertake, that in connection with the distribution of Common Stock
they will comply with the applicable rules and regulations of the
United States National Association of Securities Dealers, Inc.; with
the prohibitions against trading by persons interested in a
distribution; and with the requirements for the filing of all notices
and reports relating thereto set forth in Regulation M and 17a-2 under
the United States Securities Exchange Act of 1934 and the Agreement
Among Managers (the "AAM") entered into by the Managers. The Lead
Managers will cause each bank, broker or dealer which has agreed to
participate or is participating in the distribution to give a similar
undertaking.
(b) Xxxxxxx (NY) shall have sole responsibility with respect to
any action which it may take to make over-allotments in arranging for
sales of U.S. Option Securities and International Option Securities
and shall have direction and control of any action taken for
stabilizing the market price of the Common Stock, whether in the
United States or on European stock exchanges or otherwise. All
stabilization transactions by Merrill (NY) shall be for the respective
accounts of the several U.S. Underwriters and Managers in the
proportions set forth in Section 4 hereof. The net commitment for long
or short accounts of the U.S. Underwriters or the Managers pursuant to
such over-allotment and stabilization transactions shall not exceed
15% of the number of U.S. Securities or International Securities, as
the case may be, to be purchased by the U.S. Underwriters or the
Managers, respectively, as set forth in the U.S. Purchase Agreement
and International Purchase Agreement, respectively. The exercise by
the U.S. Underwriters and the Managers of their respective options to
purchase U.S. Option Securities and International Option Securities
shall be at the direction of Xxxxxxx (NY).
SECTION 3. Xxxxxxx (NY) and MLI shall consult with each other as to
the reservations for sale of the Common Stock made under the AAM, and upon
reaching agreement with respect thereto, MLI shall reserve for sale and sell to
the U.S. Underwriters, dealers, banks, brokers and others indicated by Xxxxxxx
(NY), for the account of the respective Managers, International Securities to be
purchased by such Managers, in the manner and at the price contemplated by
Section 1 hereof.
SECTION 4. Xxxxxxx (NY) and MLI shall agree as to the expenses which
will constitute expenses of the underwriting and distribution of the Common
Stock common to the U.S. Underwriters and the Managers, which expenses, as well
as any stabilizing profits or losses, shall be allocated among the U.S.
Underwriters and the Managers in the same proportion as the number of U.S.
Securities purchased under the U.S. Purchase Agreement and the number of
International Securities purchased under the International Purchase Agreement,
bear to the aggregate number of shares of Common Stock purchased under the
Purchase Agreements. Except with respect to such common expenses, the Managers
will pay the aggregate expenses incurred in connection with the purchase,
carrying or sale of the International Securities purchased by the Managers from
the Company, and the U.S. Underwriters will pay the aggregate expenses incurred
in connection with the purchase, carrying or sale of the U.S. Securities
purchased by the U.S. Underwriters from the Company.
SECTION 5. The U.S. Representatives and the Lead Managers agree that:
(a) if the Closing Time is not on the day provided in the
Purchase Agreements, Xxxxxxx (NY) and MLI will mutually agree on a
postponed date within the time permitted by the Purchase Agreements
and the settlement dates herein provided shall be adjusted
accordingly;
(b) changes in the public offering price or in the concession
and reallowance to banks, brokers or dealers will be made only after
consultation, but in accordance with the direction of Merrill (NY),
during the consultation period specified in the first sentence of
Section 1 hereof;
(c) Merrill (NY) and MLI will each keep the other fully
informed of the progress of the offering and distribution of the Common
Stock;
(d) MLI agrees that it will cause the termination of the AAM
at such time as Merrill (NY) shall determine; and
(e) advertising with respect to the offering shall be as
mutually agreed upon by Merrill (NY) and MLI.
SECTION 6. This Agreement may be amended prior to the Closing Time by
mutual written consent.
SECTION 7. This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument. This Agreement shall
be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
Acting on behalf of themselves and
the other U.S. Underwriters:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_______________________________________
Authorized Signatory
Acting on behalf of themselves and
the other Managers:
XXXXXXX XXXXX INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
BANK OF AMERICA INTERNATIONAL LIMITED
By: XXXXXXX XXXXX INTERNATIONAL
By:_______________________________________
Attorney-in-fact
