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EXHIBIT 1.1
DYAX CORP.
_____________ Shares'
Common Stock
($.01 par value)
UNDERWRITING AGREEMENT
New York, New York
, 1998
Xxxxxxx Xxxxx Xxxxxx
CIBC Xxxxxxxxxxx Corp.
Pacific Growth Equities
As Representatives of the several Underwriters,
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Dyax Corp., a Delaware corporation (the "Company"), proposes to sell to the
several underwriters named in Schedule I hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, __________ shares of
Common Stock, $.01 par value per share (the "Common Stock"), of the Company
(said shares to be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to __________ additional shares of Common
Stock to cover over-allotments, if any (the "Option Securities" and, together
with the Underwritten Securities, the "Securities"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Certain terms used herein are defined in Section 17 hereof.
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(1) Plus an option to purchase from the Company up to ________ additional
Securities to cover over-allotments, if any.
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EXHIBIT 1.1
1..1..1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
1..1..1.(1) The Company has prepared and filed with the Commission a
Registration Statement (file number 333-__________) on Form S-1, including
a related Preliminary Prospectus, for the registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related Preliminary Prospectus, each of
which has previously been furnished to you. The Company will next file with
the Commission either (1) prior to the Effective Date of such Registration
Statement (including the form of final Prospectus) or (2) after the
Effective Date of such Registration Statement, a final Prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such Registration Statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such Registration
Statement and the Prospectus. As filed, such amendment and form of final
Prospectus, or such final Prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time, or to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
1..1..1.(2) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date and on any date on which Option Securities are
purchased, if such date is not the Closing Date and on any date on which
Option Securities are purchased (a "Settlement Date"), the Prospectus (and
any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein
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EXHIBIT 1.1
not misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any Settlement Date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished herein or in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
1..1..1.(3) 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 full corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure so
to register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results
of operations of the Company and the Subsidiaries (as hereinafter defined)
taken as a whole; no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
1..1..1.(4) All the Company's subsidiaries (each, a "Subsidiary" and
collectively, the "Subsidiaries") are listed in an exhibit to the
Registration Statement. Each Subsidiary is a corporation duly organized,
validly existing and in good standing in the jurisdiction of its
incorporation, with full 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 is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify does not
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EXHIBIT 1.1
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of such
Subsidiary; all the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable, and are owned by the Company directly, or indirectly
through one of the other Subsidiaries, free and clear of any lien, adverse
claim, security interest, equity, or other encumbrance.
1..1..1.(5) The Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus;
the outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the Securities
have been duly and validly authorized, and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities are duly listed, and admitted and
authorized for trading, subject to official notice of issuance, on the
Nasdaq National Market; the certificates for the Securities are in valid
and sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to subscribe for
the Securities except for such rights of __________ as have been
effectively waived; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding
1..1..1.(6) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements in the Prospectus under the heading
"Business -- Government Regulation" fairly summarize the matters therein
described.
1..1..1.(7) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company enforceable in accordance with its terms. NO FURTHER APPROVAL
OR AUTHORIZATION OF ANY STOCKHOLDERS OF THE COMPANY, THE BOARD OF DIRECTORS
OF THE COMPANY OR OTHERS IS REQUIRED FOR THE ISSUANCE AND SALE OR TRANSFER
OF THE SECURITIES.
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EXHIBIT 1.1
1..1..1.(8) The Company has been advised concerning the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, and has in the past conducted, and intends in the
future to conduct, its affairs in such a manner as to ensure that it will
not become an "investment company" or a company "controlled" by an
"investment company" within the meaning of the 1940 Act and such rules and
regulations.
1..1..1.(9) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue-sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectus.
1..1..1.(10) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to (i) the
charter or by-laws of the Company or any Subsidiary, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant, or
instrument to which the Company or any Subsidiary is a party or bound or to
which their respective properties is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or
any Subsidiary of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any Subsidiary or any of their respective properties.
1..1..1.(11) No holders of securities of the Company have rights to
the registration of such securities under the Registration Statement except
for such rights of _______ which have been effectively waived.
1..1..1.(12) The historical financial statements and schedules of the
Company included in the Prospectus and the Registration Statement (the
"Financial Statements") present fairly in all material respects the
consolidated financial condition, results of operations and cash flows of
the
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EXHIBIT 1.1
Company and its Subsidiaries as of the dates and for the periods therein
indicated, comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with U. S. generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). With respect to
contracts and commitments for the sale of goods or the provision of
services by the Company or any Subsidiary, the Financial Statements contain
and reflect adequate reserves at December 31, 1997, which are consistent
with previous reserves taken, for all reasonably anticipated material
losses and costs and expenses. The amounts shown as accrued for current and
deferred income and other taxes at December 31, 1997 in the Financial
Statements are sufficient for the payment of all accrued and unpaid
federal, state and local income taxes, interest, penalties, assessments or
deficiencies applicable to the Company or any Subsidiary, whether disputed
or not, for the applicable period then ended and periods prior thereto. The
book value of inventory at December 31, 1997 reflected in the Financial
Statements, as computed on a last-in, first-out basis, is true and correct,
and the reserve set forth in the footnotes with respect thereto is true and
correct. Except as and to the extent (a) reflected and reserved against at
December 31, 1997 in the Financial Statements or (b) incurred in the
ordinary course of business after December 31, 1997 and not material in
amount, either individually or in the aggregate, the Company and its
Subsidiaries have no liability or obligation, secured or unsecured, whether
accrued, absolute, contingent, unasserted or otherwise, which is material
to Company and its Subsidiaries, taken as a whole. The selected financial
data set forth under the caption "Selected Financial Information" in the
Prospectus and Registration Statement fairly present, on the basis stated
in the Prospectus and the Registration Statement, the information included
therein.
1..1..1.(13) Subsequent to the respective dates as of which
information is given in the Prospectus and Registration Statement, there
has not been (i) any material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its Subsidiaries, taken as a whole, (ii) any transaction that is material
to the Company and its Subsidiaries, taken as a whole, (iii) any
obligation, direct or contingent, that is material to the Company and the
Subsidiaries, taken as a whole, incurred by the Company, (iv) any change in
the capital stock or outstanding indebtedness of the Company
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EXHIBIT 1.1
that is material to the Company and its Subsidiaries, taken as a whole, (v)
any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company, or (vi) any loss or damage (whether or not
insured) to the property of the Company or any Subsidiary which has been
sustained or will have been sustained which has, or will result in, a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole.
1..1..1.(14) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any Subsidiary or any of their respective properties is pending
or, to the best of the Company s knowledge, threatened that (i) could
reasonably be expected to have a material adverse effect on the performance
of this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries, taken
as a whole.
1..1..1.(15) (1) The Company has good and marketable title to all
properties and assets described in the Prospectus and Registration
Statement as owned by it or any of its Subsidiaries, free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable interest,
other than such as would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, (2) the
agreements to which the Company or any Subsidiary is a party described in
the Prospectus and Registration Statement are valid agreements, enforceable
by the Company or its Subsidiary, as the case may be, and, to the best of
the Company's knowledge, the other contracting party or parties thereto are
not in breach or default under any of such agreements, and (3) the Company
or its Subsidiaries have valid and legally enforceable leases for all
properties described in the Prospectus and Registration Statement as leased
by it. The Company owns or leases all such properties as are necessary to
its operations as now conducted and as proposed to be conducted. The
description of the Company's properties contained in the Prospectus is true
and complete in all material respects. No officer, director, stockholder or
employee of the Company, nor any spouse, child or other relative or
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EXHIBIT 1.1
affiliate thereof, owns directly or indirectly, in whole or in part, any of
the properties or assets of the Company or any of its Subsidiaries. Each
item of property not owned by the Company or any Subsidiary is in such
condition that upon the return of such property to its owner in its present
condition at the end of the relevant lease term or as otherwise
contemplated by the applicable agreement between the Company or a
Subsidiary, as the case may be, and the owner or lessor thereof, the
obligations of the Company or its Subsidiary to such owner or lessor will
be discharged. All items of the Company s and its Subsidiaries personal
property are in good operating condition and repair, normal wear and tear
excepted, are currently used by the Company and its Subsidiaries in the
ordinary course of its business and normal maintenance has been
consistently performed with respect to such property.
1..1..1.(16) Neither the Company nor any of its Subsidiaries is in
violation or default of (i) any provision of its charter or by-laws, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
it or any of its properties, as applicable.
1..1..1.(17) Coopers & Xxxxxxx L.L.P., who have certified certain
financial statements of the Company and delivered their report with respect
to the audited financial statements and schedules included in the
Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder.
1..1..1.(18) There are no transfer taxes or other similar fees or
charges under federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution
and delivery of this Agreement or the issuance by the Company or sale by
the Company of the Securities.
1..1..1.(19) Each of the Company and its Subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be filed
or has requested extensions thereof on a timely basis and has paid all
taxes required to
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EXHIBIT 1.1
be paid by it and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole.
1..1..1.(20) The general ledgers and books of account of the Company
and its Subsidiaries, all federal, state and local income, franchise,
property and other tax returns filed by the Company and its Subsidiaries
are complete and correct and have been maintained in accordance with good
business practice and in accordance with all applicable procedures required
by laws and regulations.
1..1..1.(21) No labor problem or dispute with the employees of the
Company or any of its Subsidiaries exists or is threatened or imminent, and
the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or its Subsidiaries principal suppliers,
contractors or customers, that could have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole. No
collective bargaining agreement exists with any of the Company's employees
and, to the best of the Company's knowledge, no such agreement is
threatened or imminent.
1..1..1.(22) The Company and its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risk and in
such amounts as are prudent and customary in the businesses in which they
are engaged, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and its Subsidiaries
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against; all policies of insurance and fidelity or
surety bonds insuring the Company, its Subsidiaries and their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its Subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Company or any Subsidiary under any such policy or instrument
as to which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any Subsidiary has
ever been refused any insurance coverage sought or applied for; and the
Company has no reason to believe that the Company and its Subsidiaries
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EXHIBIT 1.1
will not be able to renew their respective existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their business at a cost that
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
the Subsidiaries, taken as a whole.
1..1..1.(23) Each of the Company and its Subsidiaries possesses all
licenses, certificates, permits and other authorizations issued by the
appropriate foreign, federal, state or local regulatory authorities
necessary to conduct its business, and neither the Company nor its
Subsidiaries has ever received any notice of proceedings related to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole.
1..1..1.(24) Each of the Company and its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
1..1..1.(25) Neither the Company nor any of its officers or directors
has taken, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities.
1..1..1.(26) Neither the Company nor any of its officers or directors
has distributed and no such party will not distribute prior to the later of
(i) the Closing Date, or any date on which Option Securities are to be
purchased,
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EXHIBIT 1.1
as the case may be, and (ii) completion of the distribution of the
Securities, any offering material in connection with the offering and sale
of the Securities other than any Preliminary Prospectuses, the Prospectus,
the Registration Statement and other materials, if any, permitted by the
Act.
1..1..1.(27) Each officer and director of the Company, each
stockholder of greater than 1% of the Common Stock (on an as-converted
basis) and each holder of an option to acquire greater than 1% of the
Common Stock (on an as-converted basis), has agreed in writing that such
holder of Unregistered Securities (as defined below) will not, directly or
indirectly, for a period of 180 days from the date that the Registration
Statement is declared effective by the Commission (the "Lock-up Period"),
offer, sell, contract to sell, grant any option to purchase, pledge or
otherwise dispose of or transfer (collectively, a "Disposition") any shares
of Common Stock or any securities convertible into or exchangeable for, or
any right to purchase or acquire, shares of Common Stock (collectively,
"Unregistered Securities") now owned or hereafter acquired directly by such
holder or with respect to which such holder has or hereafter acquires the
power of disposition, otherwise than (i) as a bona fide gift or gifts,
provided that each donee thereof agrees in writing to be bound by this
restriction or (ii) with the prior written consent of Xxxxxxx Xxxxx Xxxxxx.
The foregoing restriction has been expressly agreed to preclude the holder
of the Unregistered Securities from engaging in any hedging or other
transaction which is designed to or reasonably expected to lead to or
result in a Disposition of Unregistered Securities during the Lock-up
Period, even if such Unregistered Securities would be disposed of by
someone other than such holder. Such prohibited hedging or other
transactions would include, without limitation, any short sale (whether or
not against the box) or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any
Unregistered Securities or with respect to any security (other than a
broad-based market basket or index) that includes, relates to or derives
any significant part of its value from Unregistered Securities.
Furthermore, each holder of Unregistered Securities has also agreed and
consented to the entry of stop transfer instructions with the Company's
transfer agent against the transfer of the Unregistered Securities held by
such holder except in compliance with this restriction. The Company has
provided to counsel for the Underwriters a complete and accurate list of
all security holders of the Company and the
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number and type of securities held by each security holder. The Company has
provided to counsel for the Underwriters true, accurate and complete copies
of all of the agreements pursuant to which its officers, directors and
stockholders have agreed to such or similar restrictions (the "Lock-up
Agreements") presently in effect or effected hereby. The Company hereby
represents and warrants that it will not release any of its officers,
directors or other stockholders from any Lock-up Agreements currently
existing or hereafter effected without the prior written consent of Xxxxxxx
Xxxxx Xxxxxx.
1..1..1.(28) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company or any Subsidiary to or for the
benefit of any of the officers or directors of the Company or any
Subsidiary or any of the members of the families of any of them.
1..1..1.(29) Neither the Company nor any Subsidiary has at any time
during the last five (5) years (i) made any unlawful contribution to any
candidate for foreign office or failed to disclose fully any contribution
in violation of applicable law, or (ii) made any payment to any federal or
state governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof.
1..1..1.(30) Each of the Company and its Subsidiaries is (i) in
compliance with any and all applicable foreign, federal, state and local
laws and regulations related to the protection of human health and safety,
the environment and hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received and is in compliance
with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct its business and (iii) has not
received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants. Neither the Company nor any
Subsidiary has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
1..1..1.(31) In the ordinary course of its business,
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the Company periodically reviews the effect of Environmental Laws on the
business, operations and properties of the Company and its Subsidiaries, in
the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
the Subsidiaries, taken as a whole.
1..1..1.(32) Each of the Company and its Subsidiaries has fulfilled
its respective obligations, if any, under the minimum funding standards of
Section 302 of the U.S. Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder with
respect to each "plan" as defined in Section 3(3) of ERISA and such
regulations and published interpretations in which its employees are
eligible to participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. Neither the Company nor any
Subsidiary has incurred any unpaid liability to the Pension Benefit
Guaranty Corporation (other than for the payment of premiums in the
ordinary course) or to any such plan under Title IV of ERISA.
1..1..1.(33) Each of the Company and its Subsidiaries owns, possesses,
licenses or has legally enforceable rights to use, on reasonable terms, all
patents, patent applications, trade and service marks, trade and service
xxxx registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
its business as now conducted and as proposed to be conducted. Except as
set forth in the Prospectus under the caption "Business -- Patents and
Proprietary Rights," (a) there are no rights of third parties to any such
Intellectual Property; (b) there is no infringement by third parties of any
such Intellectual Property; (c) there is no pending or, to the Company's
best knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis
for any such claim; (d) there is no pending or threatened action, suit,
proceedings or claim by others challenging the validity or scope of any
such
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Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (e) there is no pending or, to
the Company's knowledge, threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others,
and the Company is unaware of any other fact which would form a reasonable
basis for any such claim; (f) there is no U.S. or foreign patent or
published U.S. or foreign patent application which contains claims that
dominate or may dominate any Intellectual Property described in the
Prospectus as being owned by or licensed to the Company or that interferes
with the issue or pending claims of any such Intellectual Property; and (g)
there is no prior art of which the Company is aware that may render any
U.S. or foreign patent held by the Company invalid or any U.S. or foreign
patent application held by the Company unpatentable which has not been
disclosed to the U.S. Patent and Trademark Office or applicable foreign
regulatory body.
1..1..1.(34) The statements contained in the Prospectus under the
captions "Risk Factors -- Patents and Proprietary Information" and
"Business -- Patents and Proprietary Information," insofar as such
statements summarize legal matters, agreements, documents, or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby,
to each Underwriter.
1..1..2. PURCHASE AND SALE.
1..1..2.(1) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $_____ per
14
15
EXHIBIT 1.1
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
1..1..2.(2) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally and not
jointly, up to __________ Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised
in whole or in part at any time and from time to time on or before the 30th
day after the date of the Prospectus upon written or telegraphic notice by
the Representatives to the Company setting forth the number of shares of
the Option Securities as to which the several Underwriters are exercising
the option and the settlement date. Delivery of certificates for the shares
of Option Securities by the Company, and payment therefor to the Company,
shall be made as provided in Section 3 hereof. The number of Option
Securities to be purchased by each Underwriter shall be the same percentage
of the total number of shares of the Option Securities to be purchased by
the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
1..1..3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 10:00 AM, New York
City time, on __________, 1998, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives
shall designate, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 9 hereof.
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives
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EXHIBIT 1.1
shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised at
any time after the third Business Day prior to the Closing Date, the
Company will deliver the Option Securities (at the expense of the Company)
to the Representatives on the date specified by the Representatives (which
shall be within three Business Days after exercise of said option) for the
respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for
the Option Securities occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section
6 hereof.
1..1..4. OFFERING BY UNDERWRITERS. It is understood that the
several Underwriters propose to offer the Securities for sale to the public
as set forth in the Prospectus.
1..1..5. AGREEMENTS. The Company agrees with the several
Underwriters that:
1..1..5.(1) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective as soon as practicable. Prior to the
termination of the offering of the Securities, the Company will not file
any amendment of the Registration Statement or supplement to the Prospectus
or any Rule 462(b) Registration Statement unless the Company has furnished
to you a copy of your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will
16
17
EXHIBIT 1.1
provide evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
1..1..5.(2) If, at any time when a Prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Prospectus to comply
with the Act or the rule thereunder, the Company will promptly (1) notify
the Representatives of any such event; (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct such statement or omission
or effect such compliance; and (3) supply any supplemented Prospectus to
you in such quantities as you may reasonably request.
1..1..5.(3) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the
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EXHIBIT 1.1
Company which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
1..1..5.(4) The Company will furnish to the Representatives and
counsel for the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a Prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request.
1..1..5.(5) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
1..1..5.(6) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Barney, for a period of 180 days following the Execution
Time, offer, sell or contract to sell, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or announce the
offering of, any other shares of Common Stock or any securities convertible
into, or exchangeable for, shares of Common Stock; PROVIDED, HOWEVER, that
the Company may issue and sell Common Stock pursuant to any employee stock
option plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time and the Company may issue Common
Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time.
1..1..5.(7) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx, for a period of 180 days following the Execution
Time, file a Registration
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19
EXHIBIT 1.1
Statement on Form S-8 (or any successor form thereto) for the purpose of
registering with the Commission any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company.
1..1..5.(8) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
1..1..5.(9) The Company agrees to pay the costs and expenses relating
to the following matters: (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
charges 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, in each case, 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 or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue-sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (v) the registration of the Securities under the Exchange
Act and the listing of the Securities on the Nasdaq National Market; (vi)
any registration or qualification of the Securities for offer and sale
under the securities or blue-sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) any
filings required to be made with the National Association of Securities
Dealers, Inc. (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers
of the Securities; (ix) the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and
19
20
EXHIBIT 1.1
special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Company of its obligations hereunder.
1..1..6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwritten Securities and
the Option Securities, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
1..1..6.(1) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
p.m. New York City time on such date or (ii) 9:30 a.m. on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such date;
if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectus, and any such supplement will be
filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
1..1..6.(2) The Company shall have furnished to the Representatives
the opinion of Xxxxxx & Dodge LLP, counsel for the Company, dated the
Closing Date and addressed to the Representatives, to the effect that:
1..1..6.(2)(1) 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 full corporate power and authority to own
or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the
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21
EXHIBIT 1.1
laws of each jurisdiction which requires such qualification;
1..1..6.(2)(2) the Company's authorized equity capitalization is
as set forth in the Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectus; the outstanding shares of Common Stock have been
duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for trading,
subject to official notice of issuance, on the Nasdaq National Market;
the certificates for the Securities are in valid and sufficient form;
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities except for such rights of __________ as have been
effectively waived; and, except as set forth in the Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
1..1..6.(2)(3) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or its property of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Prospectus or Registration Statement, or to be filed as an exhibit
thereto, which is not described or filed as required;
1..1..6.(2)(4) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been
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22
EXHIBIT 1.1
instituted or threatened and the Prospectus and Registration Statement
(other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder; and such counsel has
no reason to believe that on the Effective Date or at the Execution
Time the Registration Statement contains or contained any untrue
statement of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date and on
the Closing Date includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion);
1..1..6.(2)(5) this Agreement has been duly authorized, executed
and delivered by the Company;
1..1..6.(2)(6) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as defined in the 1940 Act;
1..1..6.(2)(7) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue-sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus and such other
approvals (specified in such opinion) as have been obtained;
1..1..6.(2)(8) neither the issuance and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation of or imposition of any
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23
EXHIBIT 1.1
lien, charge or encumbrance upon any property or assets of the Company
pursuant to, (i) the charter or by-laws of the Company, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company is a party or bound or to
which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its properties; and
1..1..6.(2)(9) no holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement except for such rights of __________ which have been
effectively waived.
1..1..6.(2)(10) In rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any
jurisdiction other than the Commonwealth of Massachusetts or the
federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date. The
opinion of such counsel shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
1..1..6.(3) The Representatives shall have received from Xxxx and Xxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Prospectus and the Registration
Statement (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. The opinion or
23
24
EXHIBIT 1.1
opinions of such counsel shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
1..1..6.(4) [Patents language to follow]
1..1..6.(5) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the chief executive officer and the
principal financial officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Prospectus, any supplements to the Prospectus, Registration Statement, and
this Agreement and that:
1..1..6.(5)(1) the representations and warranties of the Company
in this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing
Date, except for (A) representations and warranties as of a certain
date, which shall be true and correct as of such date, and (B) such
representations and warranties which are by their terms qualified as
to materiality, which shall be true and correct, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
1..1..6.(5)(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's best knowledge,
threatened; and
1..1..6.(5)(3) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and the Subsidiaries, taken as a whole.
1..1..6.(6) At the Execution Time and at the Closing Date, Coopers &
Xxxxxxx L.L.P. shall have furnished to the Representatives letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the applicable
published rules and regulations
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25
EXHIBIT 1.1
thereunder and that they have performed a review of the unaudited interim
financial information of the Company for the three-month period ended March
31, 1998, and as at March 31, 1998, in accordance with Statement on
Auditing Standards No. 71 and stating in effect that:
1..1..6.(6)(1) in their opinion the audited financial statements
and financial statement schedules included in the Prospectus and the
Registration Statement and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations;
1..1..6.(6)(2) on the basis of a reading of the latest unaudited
financial statements made available by the Company; their limited
review, in accordance with standards established under Statement on
Auditing Standards No. 71, of the unaudited interim financial
information for the three-month period ended March 31, 1998, and as at
March 31, 1998; carrying out certain specified procedures (but not an
examination in accordance with GAAP) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and audit committee of the Company; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company as to transactions
and events subsequent to December 31, 1997, nothing came to their
attention which caused them to believe that:
1..1..6.(6)(2)(1) any unaudited financial statements
included in the Prospectus and the Registration Statement do not
comply as to form in all material respects with applicable
accounting requirements of the Act and with the published rules
and regulations of the Commission with respect to registration
statements on Form S-1; and said unaudited financial statements
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included
in the Prospectus and the Registration Statement;
1..1..6.(6)(2)(2) with respect to the period subsequent to
March 31, 1998, there were
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EXHIBIT 1.1
any changes, at a specified date not more than five days prior to
the date of the letter, in the long-term debt of the Company or
capital stock of the Company or decreases in the stockholders'
equity of the Company or decreases in working capital of the
Company as compared with the amounts shown on the March 31, 1998
balance sheet included in the Prospectus and the Registration
Statement and, or for the period from April 1, 1998 to such
specified date there were any decreases, as compared with the
three-month period ended March 31, 1998 in net revenues or income
before income taxes or in total or per share amounts of net
income of the Company, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
1..1..6.(6)(2)(3) the disclosure included in the Prospectus
and Registration Statement and in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information) and Item 402 (Executive Compensation) is
not in conformity with the applicable disclosure requirements of
Regulation S-K; and
1..1..6.(6)(3) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company) set forth in the
Prospectus and the Registration Statement, including the information
set forth under the captions "Summary Financial" and "Selected
Financial Information" in the Prospectus, agrees with the accounting
records of the Company, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
The Company shall have received from Coopers & Xxxxxxx L.L.P.
(and furnished to the Representatives) a report with respect to a
review of unaudited interim
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EXHIBIT 1.1
financial information of the Company for the eight quarters ending
March 31, 1997, in accordance with Statement on Auditing Standards No.
71.
1..1..6.(7) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company, whether or not arising from transactions in the
ordinary course of business, the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, sufficiently material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto) and the Registration Statement (exclusive of any amendment
thereof) .
1..1..6.(8) The Securities shall have been listed and admitted and
authorized for trading on the Nasdaq National Market, subject to official
notice of issuance, and satisfactory evidence of such actions shall have
been provided to the Representatives.
1..1..6.(9) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto
from [each officer and director of the Company] and [names of major
stockholders] addressed to the Representatives.
1..1..6.(10) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder
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28
EXHIBIT 1.1
may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company
in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX,
counsel for the Underwriters, on the Closing Date.
1..1..7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of
the Securities provided herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Xxxxxxx Xxxxx Barney on demand
for all out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
1..1..8. INDEMNIFICATION AND CONTRIBUTION.
1..1..8.(1) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably
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EXHIBIT 1.1
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
1..1..8.(2) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities, the legend in block
capital letters on the inside cover related to stabilization, syndicate
covering transactions and penalty bids and, under the heading
"Underwriting" (i) the sentences related to concessions and reallowances
and (ii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
1..1..8.(3) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party
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EXHIBIT 1.1
of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); PROVIDED,
HOWEVER, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
1..1..8.(4) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for
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EXHIBIT 1.1
any reason, the Company and the Underwriters severally agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities; PROVIDED, HOWEVER, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to
the offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set forth
on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter
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EXHIBIT 1.1
shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
1..1..9. DEFAULT BY AN UNDERWRITER. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names
in Schedule I hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
PROVIDED, HOWEVER, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days,
as the Representatives shall determine in order that the required changes
in the Prospectus and the Registration Statement or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
1..1..10. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the Securities,
if at any time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the Nasdaq
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EXHIBIT 1.1
National Market or trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or limited
or minimum prices shall have been established on either the New York Stock
Exchange or the Nasdaq National Market, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any amendment thereto).
1..1..11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the Company or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment
for the Securities. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
1..1..12. NOTICES. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or faxed (with a confirming copy in writing) to
the General Counsel of Xxxxxxx Xxxxx Xxxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: General Counsel (fax: (000) 000-0000);
with a copy to Xxxxxx X. Xxxxxx, Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, 00000-0000, (fax: (000) 000-0000); or, if sent to
the Company, will be mailed, delivered or faxed (with a confirming copy in
writing) to Dyax Corporation, One Xxxxxxx Square, Building 600, Fifth
Floor, Cambridge, Massachusetts, 02139, Attention: Legal Department (fax:
(000) 000-0000).
1..1..13. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
1..1..14. APPLICABLE LAW. This Agreement will be
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EXHIBIT 1.1
governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of
New York.
.. ..1. COUNTERPARTS. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
1..1..15. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
1..1..16. DEFINITIONS. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Closing Date" shall mean the date and time of delivery and payment
for the Underwritten Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
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EXHIBIT 1.1
Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement.
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxx Xxxxxx Inc. or Salomon
Brothers Inc to the extent that either such party is a signatory to this
Agreement.
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EXHIBIT 1.1
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
DYAX CORP.
By:
--------------------------------------
Name:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx
CIBC Xxxxxxxxxxx Corp.
Pacific Growth Equities
By: Xxxxxxx Xxxxx Barney
By:
-----------------------------
Name:
Title:
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
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SCHEDULE I
NUMBER OF
UNDERWRITTEN SECURITIES
UNDERWRITERS TO BE PURCHASED
Xxxxxxx Xxxxx Xxxxxx
CIBC Xxxxxxxxxxx Corp.
Pacific Growth Equities
-----------
Total ===========
37
