EXHIBIT 1.1
_________ SHARES OF COMMON STOCK
INFORMAX, INC.
UNDERWRITING AGREEMENT
______, 2000
BEAR, XXXXXXX & CO. INC.
U.S. BANCORP XXXXX XXXXXXX INC.
XXXXX, XXXXXXXX & XXXX
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
InforMax, Inc., a corporation organized and existing under the laws of
Delaware (the "Company"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the several underwriters named in Schedule I hereto
(the "Underwriters") an aggregate of _________ shares (the "Firm Shares") of its
common stock, par value $0.01 per share (the "Common Stock"), and, for the sole
purpose of covering over-allotments in connection with the sale of the Firm
Shares, at the option of the Underwriters, up to an additional _______ shares
(the "Additional Shares") of Common Stock. The Firm Shares and any Additional
Shares purchased by the Underwriters are referred to herein as the "Shares." The
Shares are more fully described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations of
the Commission thereunder (the "Regulations") a registration statement, and may
have filed an amendment or amendments thereto, on Form S-1 (No. 333-41194), for
the registration of the Shares under the Act. Such registration statement,
including the prospectus, financial statements and schedules, exhibits and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the registration statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
or Rule 434 of the Regulations, is herein called the "Registration
Statement" and the prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) or Rule 434 filing is
required, is herein called the "Prospectus". Any registration statement filed
pursuant to Rule 462(b) of the Regulations is herein called the "Rule 462(b)
Registration Statement", and after such filing any reference herein to the term
"Registration Statement" shall include such Rule 462(b) Registration Statement.
The term "preliminary prospectus" as used herein means a preliminary prospectus
as described in Rule 430 of the Regulations. All of the Shares have been duly
registered under the Act pursuant to the Registration Statement or, if any Rule
462(b) Registration Statement is filed, have been or will be duly registered
under the Act with the filing of such Rule 462(b) Registration Statement.
Neither the Commission nor the Blue Sky or securities authority of any
jurisdiction has issued a stop order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any preliminary
prospectus, the Prospectus, the Registration Statement or any amendment or
supplement thereto, refusing to permit the effectiveness of the Registration
Statement or suspending the registration or qualification of the Shares, nor, to
the Company's knowledge, has any of such authorities instituted or threatened to
institute any proceedings with respect to a stop order.
(b) At the time of the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule 434 of the
Regulations, when any supplement to or amendment of the Prospectus is filed with
the Commission and at the Closing Date and the Additional Closing Date, if any
(as hereinafter respectively defined), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied or will
comply in all material respects with the applicable provisions of the Act and
the Regulations and does not or will not contain an untrue statement of a
material fact and does not or will not omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (i) in
the case of the Registration Statement, not misleading and (ii) in the case of
the Prospectus, in light of the circumstances under which they were made, not
misleading and the Prospectus, any preliminary prospectus and any supplement
thereto, at their respective times of issuance and at the Closing Date, complied
and will comply in all material respects with any applicable laws or regulations
of foreign jurisdictions in which the Prospectus and such preliminary
prospectus, as amended or supplemented, if applicable, are distributed in
connection with the offer and sale of the Directed Shares (as hereinafter
defined). No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related preliminary prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you as herein stated expressly for use in connection
with the preparation thereof. If Rule 434 is used, the Company will comply with
the requirements of Rule 434.
(c) Deloitte & Touche LLP, who have certified the financial
statements and supporting schedules included in the Registration Statement, are
independent public accountants as required by the Act and the Regulations.
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(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no material
adverse change in the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Company ("Material Adverse
Change"), whether or not arising from transactions in the ordinary course of
business, and since the date of the latest balance sheet presented in the
Registration Statement and the Prospectus, the Company has not incurred or
undertaken any liabilities or obligations, direct or contingent, which are
material to the Company, except for liabilities or obligations which are
reflected in the Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company, and this Agreement has
been duly and validly executed and delivered by the Company and is enforceable
against the Company in accordance with its terms, except as rights to indemnity
may be limited by federal or state securities laws relating thereto and except
as enforcement (i) may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights and
remedies generally and (ii) is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or law).
(f) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to, any contract, agreement, instrument, understanding, franchise,
license or permit to which the Company is a party or by which it or any of its
properties or assets may be bound or (ii) violate or conflict with any provision
of the certificate of incorporation or the by-laws of the Company or any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its properties or assets, except, in each case, for such conflicts,
breaches or violations that would not have a Material Adverse Effect (as
hereinafter defined). No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the Shares to
be issued, sold and delivered by the Company hereunder, except the registration
under the Act of the Shares and such consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses and permits as may be
required under state securities or Blue Sky laws or foreign equivalents of such
regulations or statutes, where applicable, in connection with the purchase and
distribution of the Shares by the Underwriters.
(g) Upon the sale of the Firm Shares on the Closing Date, the
only shares of capital stock of the Company issued and outstanding (other than
the Shares) will be ________ shares of Common Stock. All of the issued and
outstanding shares of capital stock of the Company are duly and validly
authorized and issued, fully paid and nonassessable, and none of such shares was
issued in violation of or is subject to any preemptive or similar rights. The
Shares have been duly and validly authorized for issuance and sale to the
Underwriters pursuant
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to this Agreement and, when delivered by the Company in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
nonassessable and will not have been issued in violation of or be subject to any
preemptive or similar rights. The Company had, at June 30, 2000, an authorized
and outstanding capitalization as set forth in the Registration Statement and
the Prospectus. The authorized capital stock of the Company, including the Firm
Shares and the Additional Shares, conforms to the description thereof contained
in the Registration Statement and the Prospectus. Except as disclosed in the
Registration Statement and the Prospectus, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments,
obligations, plans or arrangements to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable for capital stock of
the Company. The outstanding stock options and warrants relating to the Common
Stock have been duly authorized and validly issued and conform to the
descriptions thereof contained in the Registration Statement and the Prospectus.
(h) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation. The Company is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which the character
and location of its properties (owned, leased or licensed) or nature or conduct
of its business makes such qualification necessary, except where the failure to
so qualify would not have a material adverse effect (considered individually or
when aggregated with other such instances) on the business, prospects,
properties, operations, condition (financial or other) or results of operations
of the Company (a "Material Adverse Effect"). The Company has all requisite
power and authority and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits (collectively,
"Governmental Licenses") of and from all public, regulatory or governmental
agencies and bodies, to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration Statement
and the Prospectus, and each such Governmental License is valid and in full
force and effect. No such Governmental License contains a materially burdensome
restriction not adequately disclosed in the Registration Statement and the
Prospectus, and the Company has not received any notice of proceedings to the
revocation of any such Governmental Licenses. The Company is in compliance with
all applicable laws, orders, rules, regulations, ordinances and directives,
except where the failure to be in compliance would not have a Material Adverse
Effect. The Company does not have any subsidiaries as defined in Rule 405 of the
Regulations, other than its [66.67]% interest in [Name of InforMax French
subsidiary], a French company [which is not now conducting and has never
conducted any operations, does not own, lease, license or otherwise possess and
has never owned, leased, licensed or otherwise possessed any rights or assets
related to the Company's business, and is not subject to any claim or liability
(absolute or contingent, known or unknown)]. The Company does not presently own
or control, directly or indirectly, any interest in any other corporation,
association or other business entity, other than its interest in [Name of
InforMax French subsidiary].
(i) The Company is not in violation in any material respect of
any provision of its certificate of incorporation or of its by-laws or in breach
of, or in default under (nor has any event occurred that with notice, lapse of
time, or both, would constitute a breach of, or default under), except where
such breach or default would not have a Material Adverse Effect, any provision
of any agreement, instrument, franchise, lease, license or permit to which the
Company is a party or by which any of its properties or assets may be bound or
affected or any judgment,
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decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its properties or assets.
(j) There is no litigation, arbitration, proceeding,
investigation or claim to which the Company is a party or to which any property
or assets of the Company are subject which is pending or, to the knowledge of
the Company, threatened or contemplated against the Company which might result
in any Material Adverse Effect or any development involving a Material Adverse
Effect or which is required to be disclosed in the Registration Statement and
the Prospectus, except as has been disclosed in the Registration Statement and
the Prospectus.
(k) Neither the Company nor any of its directors, officers or
affiliates (as defined in the Regulations) has taken or will take, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale
or resale of the Shares or a violation of Regulation M under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(l) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Prospectus
present fairly the financial position of the Company as of the dates indicated
and the results of its operations for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein; and the selected financial data and the summary financial
information included in the Registration Statement and the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the financial statements included in the Registration
Statement and the Prospectus. No other financial statements are required by Form
S-1 or otherwise to be included in the Registration Statement of the Prospectus
other than those included therein.
(m) Except as described in the Registration Statement and the
Prospectus and except for rights that have been effectively waived in writing,
which waivers are in full force and effect, no holder of securities of the
Company has any rights to cause the Company to issue to it, or register pursuant
to the Act, any securities of the Company because of the filing of the
Registration Statement or otherwise, in connection with the sale of the Shares
contemplated hereby or otherwise. No holder of securities of the Company has
preemptive rights or other rights to purchase any of the Shares.
(n) The Company is not, and upon consummation of the
transactions contemplated hereby and the application of the proceeds therefrom
as described in the Prospectus will not be, an "investment company" or a person
"controlled" by an "investment company" under the Investment Company Act of
1940.
(o) The Common Stock of the Company, including the Shares,
have been approved for quotation on the National Association of Securities
Dealers Automated Quotation National Market System.
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(p) The Company owns or possesses valid and enforceable
licenses or other rights to use all inventions, patents, patent applications,
trademarks, service marks, trade names, copyrights, technology, software,
databases, Internet domain names, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), proprietary techniques (including processes and substances) and
other intellectual property rights used in, or necessary to conduct, the
business now conducted by the Company or presently contemplated to be conducted
as described in the Registration Statement and the Prospectus (collectively,
"Intellectual Property") free and clear of all liens, claims and encumbrances,
except where the failure to own or possess such rights would not reasonably be
expected to have a Material Adverse Effect; other than as described in the
Registration Statement and the Prospectus: (i) there are no third parties who
have any rights in the Intellectual Property that could preclude the Company
from conducting its business as currently conducted or as presently contemplated
to be conducted as described in the Registration Statement and the Prospectus in
any material respect; (ii) there are no pending or threatened actions, suits,
proceedings, investigations or claims by others challenging the rights of the
Company or (if the Intellectual Property is licensed) the licensor thereof (to
the Company's knowledge) in any Intellectual Property owned or licensed to the
Company; (iii) neither the Company nor (if the Intellectual Property is
licensed) the licensor thereof (to the Company's knowledge) has infringed, or
received any notice of infringement of or conflict with, any rights of others
with respect to the Intellectual Property; and (iv) there is no dispute between
it and any licensor with respect to any Intellectual Property. The Company has
taken all reasonable steps to protect, maintain and safeguard the Intellectual
Property for which improper or unauthorized disclosure would impair its value or
validity and has entered into appropriate nondisclosure and confidentiality
agreements and made appropriate filings and registrations in connection with the
foregoing.
(q) The Company has timely filed all federal, state, local and
foreign income and franchise tax returns and reports required to be filed and
has paid all taxes shown thereon and all assessments received by it to the
extent that such taxes have become due and are not being contested in good
faith, and there is no tax deficiency that has been or, to the Company's
knowledge, might be asserted or threatened against the Company that might have a
Material Adverse Effect; and all tax liabilities are adequately provided for on
the books of the Company.
(r) The Company maintains insurance with insurers of
recognized financial responsibility of the types and in the amounts (i)
generally deemed adequate for its business and consistent with insurance
coverage maintained by similar companies in similar businesses and (ii) required
under any of the Company's agreements, licenses or other contracts, all of which
insurance is in full force and effect; the Company has no reason to believe that
it will not be able to renew its existing insurance as and when such coverage
expires or to obtain similar insurance with similar insurers adequate and
customary for its business and sufficient to satisfy any requirements of its
contracts at a cost that would not have a Material Adverse Effect.
(s) The Company is in compliance with all applicable federal,
state, local or foreign laws, regulations, rules, ordinances, orders or
directives relating to pollution or (in connection therewith) protection of
human health and safety, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or
threatened
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release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"); to the Company's knowledge, no material expenditures are
or will be required to comply with the Environmental Laws, and the Company holds
all permits, licenses and approvals required to conduct its business thereunder
and is in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance or failure to comply with the terms
and conditions of, or failure to receive, such permits, licenses or approvals
will not singly or in the aggregate have a Material Adverse Effect; to the
Company's knowledge, all properties and assets leased or owned, including,
without limitation, all structures, contents, soil, subsoil and groundwater, do
not contain Hazardous Materials; and to the Company's knowledge, the Company has
no liability or obligation, whether to any governmental authority or to any
other person or entity, for damages, claims, penalties, forfeitures or
otherwise, as a consequence of the generation, transportation or disposal of any
Hazardous Materials or otherwise under the Environmental Laws.
(t) The Company has good and marketable title to all
properties (real and personal) owned by the Company, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as do not, singly or in the aggregate,
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company; and
all properties held under lease or license by the Company are held under valid,
existing and enforceable leases or licenses.
(u) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general and specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorizations, 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.
(v) No labor dispute with the employees of the Company is
pending, or, to the Company's knowledge, is imminent; and the Company is not
aware of any existing, threatened or imminent labor disturbance by the employees
of any of its principal suppliers, collaborative or strategic partners,
manufacturers or contractors that could result in any Material Adverse Effect.
(w) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Securities Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the Company for
employees or former employees of the Company has been maintained in compliance
with its respective terms and the requirements of any applicable statutes,
orders, rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"). No prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan that could result in liability
to the Company, excluding transactions effected pursuant to a statutory or
administrative exemption. For each such plan that is subject to the funding
rules
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of Section 412 of the Code or Section 302 of ERISA, no "accumulated funding
deficiency," as defined in Section 412 of the Code, has been incurred, whether
or not waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(x) The Company has reviewed its operations and those of any
third parties with which the Company has a material relationship to evaluate the
extent to which the business or operations of the Company have been or will be
affected by the Year 2000 Problem (as defined herein). As a result of such
review, the Company has no reason to believe, and does not believe, that the
Year 2000 Problem will have a Material Adverse Effect or result in any material
loss or interference with the Company's business or operations. The "Year 2000
Problem" as used herein means any significant risk that computer hardware or
software used in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of dates or
time periods occurring after December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring prior to January 1, 2000.
(y) The statistical and market-related data included in the
Registration Statement and the Prospectus are derived from sources which the
Company reasonably and in good faith believes to be accurate, reasonable and
reliable, and such data agree with the sources from which they were derived.
(z) There are no contracts, licenses, agreements or other
documents which are required to be described in the Registration Statement and
the Prospectus or filed as exhibits to the Registration Statement by the Act or
by the Regulations which have not been described in the Registration Statement
and the Prospectus or filed as exhibits to the Registration Statement.
(aa) No relationship, direct or indirect, exists between or
among the Company or any of its affiliates on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Registration Statement and the
Prospectus that is not so described.
(bb) The offer and sale by the Company to Amersham Pharmacia
Biotech Inc. in August 2000 of 950,747 shares of Series B Preferred Stock was
exempt from the registration requirements of the Act, and the offer and issuance
thereof is not required to be integrated with the offer and sale of the Shares.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $_____, the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
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(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the offices of Coudert
Brothers, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such
other place as shall be agreed upon by you and the Company, at ____ A.M. on the
third or fourth business day (as permitted under Rule 15c6-1 under the Exchange
Act) (unless postponed in accordance with the provisions of Section 9 hereof)
following the date of the effectiveness of the Registration Statement (or, if
the Company has elected to rely upon Rule 430A of the Regulations, the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
after the determination of the initial public offering price of the Shares), or
such other time not later than ten business days after such date as shall be
agreed upon by you and the Company (such time and date of payment and delivery
being herein called the "Closing Date"). Payment shall be made to the Company by
wire transfer of immediately available funds, against delivery to you for the
respective accounts of the Underwriters of certificates for the Firm Shares to
be purchased by them. Certificates for the Firm Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Closing Date. The Company
will permit you to examine and package such certificates for delivery at least
one full business day prior to the Closing Date. As used herein, the term
"business day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase up to _______ Additional Shares at the same purchase
price per share to be paid by the Underwriters to the Company for the Firm
Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the Company.
Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (such date and
time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Additional Closing Date.
The Company will permit you to examine and package such certificates for
delivery at least one full business day prior to the Additional Closing Date.
(d) The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such adjustments
to eliminate any fractional shares as you in your sole discretion shall make.
(e) Payment of the purchase price for the Additional Shares
shall be made by wire transfer of immediately available funds at the offices of
Coudert Brothers, 1114 Avenue of the
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Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or such other place as shall be agreed upon
by you and the Company, upon delivery of the certificates for the Additional
Shares to you for the respective accounts of the Underwriters.
3. Offering.
(a) Upon your authorization of the release of the Firm Shares,
the Underwriters propose to offer the Shares for sale to the public upon the
terms set forth in the Prospectus.
(b) The Company and the Underwriters hereby agree that up to
five percent (5%) of the Firm Shares to be purchased by the Underwriters (the
"Directed Shares") shall be reserved for sale by the Underwriters to certain
eligible employees of, and certain persons designated by, the Company (the
"Directed Shares Purchasers") as part of the distribution of the Shares by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. and all other applicable laws, rules and regulations, provided,
however, that under no circumstances will Bear, Xxxxxxx & Co. Inc. or any other
Underwriter be liable to the Company or to any of the Directed Shares Purchasers
for any action taken or omitted in good faith in connection with transactions
effected with regard to the Directed Shares Purchasers. To the extent that such
Directed Shares are not orally confirmed for purchase by such persons by the end
of the first day after the date of this Agreement, such Directed Shares will be
offered to the public as part of the offering contemplated hereby.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule
434 within the prescribed time period and will provide evidence satisfactory to
you of such timely filing. If the Company elects to rely on Rule 434, the
Company will prepare and file a term sheet that complies with the requirements
of Rule 434.
The Company will notify you immediately (and, if requested by you, will
confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor and (v) of the receipt of any comments from the
Commission. If the Commission shall propose or enter a stop order at any time,
the Company will make every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any amendment to the Registration Statement,
make any filing under Rule 462(b) of
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the Regulations or file any amendment of or supplement to the Prospectus
(including the prospectus required to be filed pursuant to Rule 424(b) or Rule
434) that differs from the prospectus on file at the time of the effectiveness
of the Registration Statement before or after the effective date of the
Registration Statement to which you shall reasonably object in writing after
being timely furnished in advance a copy thereof.
(b) The Company will comply with the Act and the Regulations
so as to permit the completion of the distribution of the Shares as contemplated
in this Agreement and the Prospectus. If at any time when a prospectus relating
to the Shares is required to be delivered under the Act any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement to comply with the Act or the Regulations, the Company will notify you
promptly and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance reasonably satisfactory to you) which will
correct such statement or omission and will use its best efforts to have any
amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you a signed copy of
the Registration Statement, as initially filed with the Commission, and all
amendments thereto (including exhibits) and will maintain in the Company's files
manually signed copies of such documents for at least five years from the date
of filing. The Company will promptly deliver to each of the Underwriters such
number of copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
you may reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the Act.
(d) The Company will endeavor in good faith, in cooperation
with you, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions as you may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process. The Company will promptly
advise you of the receipt by the Company of any notification with respect to
suspension of the qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and will use
every reasonable effort to obtain the withdrawal of any order of suspension as
soon as possible.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to you as soon
as practicable, but not later than 45 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
11
(f) During the period of 180 days from the date of the
Prospectus, (i) the Company will not, without the prior written consent of Bear,
Xxxxxxx & Co. Inc. on behalf of the Underwriters, directly or indirectly, issue,
sell, offer or agree to sell, grant any option, warrant or other right to
purchase or otherwise sell or dispose of (or announce any offer of sale,
contract of sale, sale, grant of any option, warrant or other right to purchase
or other sale or disposition of), pledge, make any short sale or maintain any
short position, establish or maintain a "put equivalent position" (within the
meaning of Rule 16-a-1(h) under the Exchange Act), enter into any swap,
derivative transaction or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock
(whether any such transaction is to be settled by delivery of Common Stock,
other securities, cash or other consideration) or otherwise dispose of, any
Common Stock (or any securities convertible into, exercisable for or
exchangeable for Common Stock) or interest therein of the Company, other than
(A) the grant of options under, or the issuance by the Company of shares of
Common Stock pursuant to the exercise of options outstanding under, its Equity
Incentive Compensation Plan as in effect on the date hereof (provided that the
Company shall only so grant options or so issue shares during such 180 days to
officers, directors and others who beneficially own at least 10,000 shares of
Common Stock and/or options or warrants to purchase shares of Common Stock, in
each case inclusive of such grant or issuance, if such person agrees not to
engage in any of the aforementioned transactions prior to the expiration of the
period of 180 days from the date of the Prospectus), (B) the issuance of shares
of Common Stock pursuant to the automatic conversion of the Company's
outstanding Series A and Series B convertible preferred stock, and (C) the
issuance of shares of Common Stock or securities convertible into Common Stock
in connection with any acquisition of, or strategic relationship with, another
company if (x) the terms of such issuance provide that such other company shall
not engage in any of the aforementioned transactions prior to the expiration of
the period of 180 days following the date of the Prospectus and (y) the value of
the total consideration to be paid for such acquisitions or strategic
relationships does not exceed $20 million with respect to any single
transaction, or $50 million with respect to all transactions, during the 180
days following the date of the Prospectus, and (ii) the Company will obtain the
undertaking of each of its officers and directors and all of its stockholders
having beneficial ownership of or having options or warrants to purchase at
least 10,000 shares of Common Stock of the Company, as of the time of the
closing of the sale of the Firm Shares hereunder on the Closing Date, not to
engage in any of the aforementioned transactions on their own behalf, other than
the Company's sale of Shares hereunder.
(g) During a period of three years from the date of the
Prospectus, the Company will furnish to you and, upon request, to each of the
other Underwriters (i) copies of any reports or other communications that the
Company shall send to its stockholders or shall from time to time publish or
publicly disseminate, and (ii) copies of all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange or automated quotation system.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares
to be included in the National Association of Securities Dealers Automated
Quotation National Market System and to maintain such quotation so long as any
of the Shares are outstanding.
12
(j) The Company will file with the Commission in its periodic
reports pursuant to Section 13 or 15 of the Exchange Act such information as may
be required pursuant to Rule 463 of the Regulations.
(k) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations thereunder.
(l) The Company hereby agrees that it will ensure that the
Directed Shares are restricted as required by the National Association of
Securities Dealers, Inc. rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this Agreement.
The Underwriters will notify the Company as to which persons will need to be so
restricted. At the request of the Underwriters, the Company will direct the
transfer agent to place a stop transfer restriction upon such securities for
such a period of time. Should the Company release, or seek to release, from such
restrictions any of the Directed Shares, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including without limitation legal
expenses) they incur in connection with such release.
(m) The Company will use its best efforts to do and perform
all things required or necessary to be done and performed under this Agreement
by the Company prior to or after the Closing Date or any Additional Closing
Date, as the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
13
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any preliminary prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement, the Master Agreement Among Underwriters and the Master Selling
Agreement) and all other documents related to the public offering of the Shares
(including those supplied to the Underwriters in quantities as hereinabove
stated), (ii) the issuance, transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
qualification of the Shares under state or foreign securities or Blue Sky laws
or regulations, including the costs of printing and mailing a preliminary and
final "Blue Sky Survey" and the fees of counsel for the Underwriters and such
counsel's disbursements in relation thereto, (iv) quotation of the Shares on the
National Association of Securities Dealers Automated Quotation National Market
System, (v) filing fees of the Commission and the National Association of
Securities Dealers, Inc., (vi) the cost of printing certificates representing
the Shares, (vii) the cost and charges of any transfer agent or registrar for
the Shares and (viii) all costs and expenses of the Underwriters, including the
fees and disbursements of counsel for the Underwriters, in connection with
matters related to the Directed Shares which are designated by the Company for
sale to Directed Share Purchasers.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to you or to Coudert Brothers
("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or
omission, to the performance by the Company of its obligations hereunder, and to
the following additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective and all necessary approvals
of the National Association of Securities Dealers Automated Quotation National
Market System shall have been received, not later than, if pricing pursuant to
Rule 430A, 5:30 P.M., New York time, on the date of this Agreement, if pricing
pursuant to a pricing amendment, 12:00 Noon, New York time, on the date an
amendment to the Registration Statement containing the public offering price has
been filed with the Commission, or at such later time and date as shall have
been consented to in writing by you; if the Company shall have elected to rely
upon Rule 430A or Rule 434 of the Regulations, the Prospectus shall have been
filed with the Commission in a timely fashion in accordance with Section 4(a)
hereof; and, at or prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
14
(b) At the Closing Date you shall have received the opinion of
Xxxxx & Xxxxxxx LLP, counsel for the Company, dated the date of such Closing
Date addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that:
(i) The Company was incorporated, and is validly existing
and in good standing as of the date (not more than three business days
prior to the Closing Date) of the applicable certificate of good
standing specified in such opinion, under the laws of the State of
Delaware. The Company has the corporate power and corporate authority
under its Certificate of Incorporation and the Delaware General
Corporation Law to own, lease and operate its current properties and to
conduct its business as described in the Registration Statement and the
Prospectus. The Company is authorized to transact business as a foreign
corporation in ___________ as of the respective dates (not more than
five days prior to the Closing Date) of the certificates specified in
such opinion.
(ii) All shares of capital stock of the Company shown as
issued and outstanding on an actual basis under the caption
"Capitalization" in the Prospectus are duly authorized and, assuming
the receipt of consideration therefor as provided in resolutions of the
Company's Board of Directors authorizing issuance thereof, are validly
issued, fully paid and nonassessable, and were not issued in violation
of any statutory preemptive rights under the Delaware General
Corporation Law or, to such counsel's knowledge, any contractual right
to subscribe for such shares. The capital stock conforms in all
material respects to the description thereof set forth in the
Prospectus under the caption "Description of Capital Stock".
(iii) To such counsel's knowledge, the Company has not
issued any outstanding securities convertible into or exchangeable for,
or outstanding options, warrants or other rights to purchase or
subscribe for, any shares of stock or other securities of the Company,
except as described in the Registration Statement and the Prospectus.
(iv) The Company has the corporate power and corporate
authority under the Company Certificate of Incorporation and the
Delaware General Corporation Law to execute, deliver and perform its
obligations under the Agreement and to consummate the transactions
contemplated by this Agreement, including, without limitation, to
issue, sell and deliver the Shares as provided therein. When issued and
paid for in accordance with the provisions of the Agreement, the Shares
will be validly issued, fully paid and nonassessable, and will not have
been issued in violation of any statutory preemptive rights under the
Delaware General Corporation Law or, to such counsel's knowledge, any
contractual rights to subscribe to the Shares.
(v) This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Company.
(vi) The Registration Statement has become effective under
the Act, the required filings of the Prospectus pursuant to Rule 424(a)
and Rule 424(b) promulgated pursuant to the Act have been made in the
manner and within the time period required by Rule 424(a) and Rule
424(b) and, to such counsel's knowledge, no stop order suspending
15
the effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued and no proceedings
for that purpose have been instituted or are threatened by the
Commission.
(vii) The Registration Statement and the Prospectus (except
for the financial statements and supporting schedules included therein,
as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Act and the
applicable rules and regulations thereunder.
(viii) The execution, delivery and performance by the
Company of this Agreement and the consummation by the Company of the
transactions therein contemplated (including the issuance and sale of
the Shares) do not and will not (i) violate the Company's Certificate
of Incorporation or the Company's Bylaws, (ii) breach or constitute a
default (or an event which with notice or lapse of time or both would
constitute a default) under any agreement or contract filed as an
exhibit to the Registration Statement, (iii) to such counsel's
knowledge, violate any applicable law, or any order, judgment or decree
applicable to the Company or its properties or assets, or (iv) to such
counsel's knowledge, result in the imposition of a lien or encumbrance
on any property or assets of the Company, except for such violations,
breaches, defaults or impositions referred to in clauses (ii), (iii)
and (iv) of this Paragraph (viii) that (X) would not, singly or in the
aggregate, have a Material Adverse Effect or (Y) are disclosed in the
Prospectus.
(ix) No approval or consent of, or registration or filing
with governmental agency, court, or regulatory authority having
jurisdiction over the Company or its assets is required to be obtained
or made by the Company in connection with the execution, delivery and
performance (including the issuance and sale of the Shares) by the
Company of the Agreement, except (i) such as may be required under
state securities or blue sky statutes and regulations (as to which such
counsel need not express any opinion) or (ii) such as have been
obtained or made.
(x) The Company is not, and upon consummation of the
transactions contemplated hereby and the application of the proceeds
therefrom as described in the Registration Statement and the Prospectus
will not be, an "investment company," as such term is defined in the
Investment Company Act of 1940, as amended.
(xi) To such counsel's knowledge, there are no holders of
any securities of the Company who, by reason of the execution, delivery
or performance by the Company of the Agreement, have the right to
request or require that the Company register under the Securities Act
securities held by them.
(xii) The information in the Registration Statement and the
Prospectus under the following captions, to the extent that such
information constitutes matters of law or legal conclusions, or
purports to describe certain provisions of specified documents, has
been reviewed by such counsel, and is correct in all material respects:
"Description of Capital Stock" and "Shares Eligible for Future Sale".
16
(xiii) The Shares have been authorized for quotation in the
National Association of Securities Dealers Automated Quotation System
National Market System.
(xiv) The offer and sale by the Company to Amersham
Pharmacia Biotech Inc. in August 2000 of 950,747 shares of Series B
Preferred Stock was exempt from the registration requirements of the
Act, and the offer and issuance thereof is not required to be
integrated with the offer and sale of the Shares.
In addition, such opinion also shall contain a statement to the effect
that during the course of the preparation of the Registration Statement and the
Prospectus, such counsel participated in conferences with officers and other
representatives of the Company, with representatives of the independent
certified public accountants of the Company and with the underwriters, and that
on the basis of these conferences and such counsel's activities as counsel to
the Company in connection with the Registration Statement and the Prospectus, no
facts have come to such counsel's attention which cause it to believe that: (i)
the Registration Statement, at the time it became effective, or any amendment
thereof made prior to the Closing Date as of the date of such amendment,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (and any amendment thereof or supplement
thereto made prior to the Closing Date), as of the date hereof, contains an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, (ii)
there are any legal or governmental proceedings pending or threatened against
the Company that are required to be disclosed in the Registration Statement or
the Prospectus, other than those disclosed therein, or (iii) there are any
contracts, or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or referred to therein or so
filed; provided that in making the foregoing statements (which shall not
constitute an opinion), such counsel need not express any views as to the
financial statements and supporting schedules and other financial information
and data derived therefrom included in or omitted from the Registration
Statement or the Prospectus.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and
certificates or other written statements of officers of departments of various
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel. The opinion of such
counsel for the Company shall state that the opinion of any such other counsel
is in form satisfactory to such counsel and, in their opinion, you and they are
justified in relying thereon.
(c) At the Closing Date, you shall have received the opinion
of Xxxxxxx Abokhair & Xxxxxxx, LLC, patent counsel for the Company, dated the
Closing Date addressed to the Underwriters and in the form previously agreed
with the Underwriters' Counsel.
17
(d) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from said Underwriters' Counsel a favorable
opinion, dated as of the Closing Date with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a certificate
of the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date, to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date the representations and warranties of the Company set forth in
Section 1 hereof are true and correct, (iii) as of the Closing Date the
obligations of the Company to be performed hereunder on or prior thereto have
been duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not sustained any loss or interference with its business or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any Material Adverse Change, or any
development involving a Material Adverse Effect, except in each case as
described in or contemplated by the Prospectus.
(f) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter from Deloitte & Touche LLP, independent
public accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to you, stating that: (i) they are independent
certified public accountants with respect to the Company within the meaning of
the Act and the Regulations; (ii) in their opinion, the financial statements and
schedules of the Company included in the Registration Statement and the
Prospectus and covered by their opinion therein comply as to form in all
material respects with the applicable accounting requirements of the Act and the
applicable published rules and regulations of the Commission thereunder; (iii)
on the basis of procedures consisting of a reading of the latest available
unaudited interim financial statements of the Company and of the latest
available unaudited monthly financial statements of the Company (which, in the
case of the letter delivered on the Closing Date, shall be at least as of
______, 2000), a reading of the minutes of meetings and consents of the
stockholders and board of directors of the Company and the committees of such
board subsequent to December 31, 1999, inquiries of officers and other employees
of the Company who have responsibility for financial and accounting matters of
the Company with respect to transactions and events subsequent to December 31,
1999 and other specified procedures and inquiries to a date not more than five
days prior to the date of such letter (provided that the letter delivered on the
Closing Date shall use a "cut-off" date not earlier than the date hereof),
nothing has come to their attention that would cause them to believe that: (A)
the unaudited financial statements and schedules of the Company presented in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and the
applicable published rules and regulations of the Commission thereunder or that
such unaudited financial statements are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited financial statements
18
included in the Registration Statement and the Prospectus; (B) with respect to
the period subsequent to June 30, 2000 there were, as of the date of the most
recent available monthly financial statements of the Company, if any, and as of
a specified date not more than five days prior to the date of such letter
(provided that the letter delivered on the Closing Date shall use a "cut-off"
date not earlier than the date hereof), any changes in the capital stock or
long-term indebtedness of the Company or any decrease in the current assets or
increase in shareholders' deficit of the Company, in each case as compared with
the amounts shown in the most recent balance sheet presented in the Registration
Statement and the Prospectus, except for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter; or (C) that during the period from July 1,
2000 to the date of the most recent available monthly financial statements of
the Company, if any, and to a specified date not more than five days prior to
the date of such letter (provided that the letter delivered on the Closing Date
shall use a "cut-off" date not earlier than the date hereof), there was any
decrease, as compared with the corresponding period in the prior fiscal year, in
revenues, or increase in net loss, except for decreases or increases, as the
case may be, which the Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter; and (iv) stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, and other financial information pertaining to the
Company set forth in the Registration Statement and the Prospectus, which have
been specified by you prior to the date of this Agreement, to the extent that
such amounts, numbers, percentages, and information may be derived from the
general accounting and financial records of the Company or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you set forth in such letter, and found them to be in agreement.
(g) Prior to the Closing Date the Company shall have furnished
to you such further information, certificates and documents as you may
reasonably request.
(h) You shall have received from each person who is a director
or officer of the Company or stockholder beneficially owning or having options
or warrants to purchase at least 10,000 shares of Common Stock of the Company,
as of the time of the closing of the sale of the Firm Shares hereunder at the
Closing Date, an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of Bear, Xxxxxxx & Co. Inc. on
behalf of the Underwriters, during the period commencing on the date of the
Prospectus and ending 180 days thereafter, (1) issue, sell, offer or agree to
sell, grant any option for the sale of, pledge, make any short sale or maintain
any short position, establish or maintain a "put equivalent position" (within
the meaning of Rule 16-a-1(h) under the Exchange Act), enter into any swap,
derivative transaction or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of Common Stock
(whether any such transaction is to be settled by delivery of shares of Common
Stock, other securities, cash or other consideration) or otherwise dispose of
any Common Stock (or any securities convertible into, exercisable for or
exchangeable for Common Stock) or interest therein of the Company or (2) make
any demand for, or exercise his, her or its rights, if any, to require the
Company to register its Common Stock and to receive notice thereof.
19
(i) At the Closing Date, the Shares shall have been quoted on
the National Association of Securities Dealers Automated Quotation National
Market System.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone, facsimile, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Shares, as originally filed,
or any amendment thereof, or any related preliminary prospectus or the
Prospectus, or in any supplement thereto or amendment thereof, or 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; or (ii) (A)
the violation by the Company of any applicable laws or regulations of foreign
jurisdictions where Directed Shares have been offered and (B) any untrue
statement or alleged untrue statement of a material fact included in the
supplement or prospectus wrapper material distributed in connection with the
reservation and sale of the Directed Shares to Directed Share Purchasers or the
omission or alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the Prospectus or
preliminary prospectus, not misleading; provided, however, that the Company will
not be liable in any such case to the extent but only to the extent that any
such loss, liability, claim, damage or expense 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
you expressly for use therein; and provided further, that this indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
liabilities, claims, damages or expenses purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus was not sent or given
by or on behalf of such Underwriter to such person, if such is required by law,
at or prior to the written confirmation of the sale of such Shares to such
person and if the Prospectus would have corrected the defect giving rise to such
loss, liability, claim,
20
damage or expense. This indemnity agreement will be in addition to any liability
which the Company may otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (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 Shares, as originally filed, or any filed
amendment thereof, or any related preliminary prospectus or the Prospectus, or
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, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense 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 you expressly for use
therein; provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount and commission
applicable to the Shares purchased by such Underwriter hereunder. This indemnity
will be in addition to any liability which any Underwriter may otherwise have
including under this Agreement. The Company acknowledges that the statements set
forth in the last paragraph of the cover page and in the third, thirteenth,
fourteenth and fifteenth paragraphs and the list of Underwriters and the number
of shares listed opposite their respective names in the first paragraph under
the caption "Underwriters" in the Prospectus constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
registration statement for the registration of the Shares, as originally filed,
or any filed amendment thereof, or any related preliminary prospectus or the
Prospectus, or any amendment thereof or supplement thereto, as the case may be.
(c) In connection with the offer and sale of the Directed
Shares, the Company agrees, promptly upon a request in writing, to indemnify and
hold harmless the Underwriters from and against any and all losses, liabilities,
claims, damages and expenses incurred by it as a result of (i) the failure of
the Directed Shares Purchasers to pay for and accept delivery of the Directed
Shares which, by the end of the day following the date of this Agreement, were
subject to a properly confirmed agreement to purchase such Directed Shares or
(ii) the refusal of any Directed Shares Purchasers that are also employees of
the Company properly to confirm their respective agreements to purchase the
Directed Shares that they had agreed to purchase by the end of the first day
after the date of this Agreement.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in
21
respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 7). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Shares or,
if such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Underwriters in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
22
Prospectus. The relative fault of the Company and of the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or any
violation of the nature referred to in Section 7(a)(ii). The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 8, (i) in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount and commission applicable to the Shares purchased by
such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions of this Section 8 and the
preceding sentence, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of 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 clauses (i) and (ii) of this Section 8. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, the Firm Shares or Additional Shares to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion to
the respective proportions which the numbers of Firm Shares set forth opposite
their respective names in Schedule I hereto bear to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters.
23
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within five calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 5, 7(a) and 8 hereof) or the Underwriters, but nothing
in this Agreement shall relieve a defaulting Underwriter or Underwriters of its
or their liability, if any, to the other Underwriters and the Company for
damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be, for a period, not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including the agreements contained in Section 5,
the indemnity agreements contained in Section 7 and the contribution agreements
contained in Section 8, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later of
when (i) you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price per
Share has not been agreed upon prior to 5:00 P.M., New York time, on the sixth
full business day after the Registration Statement shall have become effective,
this Agreement shall thereupon terminate without liability to the Company or the
Underwriters except as herein expressly provided. Until this Agreement becomes
effective as aforesaid, it may be terminated by the Company by notifying you or
by you by notifying the Company. Notwithstanding the
24
foregoing, the provisions of this Section 11 and of Sections 1, 5, 7 and 8
hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at
any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York Stock Exchange or on NASDAQ shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the New York or American Stock Exchanges or on NASDAQ by the New York or
American Stock Exchanges or NASDAQ or by order of the Commission or any other
governmental authority having jurisdiction; or (C) if a banking moratorium has
been declared by a state or federal authority or if any new restriction
materially adversely affecting the distribution of the Firm Shares or the
Additional Shares, as the case may be, shall have become effective; or (D) (i)
if the United States becomes engaged in hostilities or there is an escalation of
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States or (ii) if there shall have been such
change in political, financial or economic conditions, if the effect of any such
event in (i) or (ii) in your judgment makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, facsimile, telex, or telegraph, confirmed in writing by
letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied 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, the
Company will, subject to demand by you, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel)
incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, sent by facsimile, telex or telegraph
and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Equity Syndicate; facsimile number
(000) 000-0000; if sent to the Company, shall be mailed, delivered, sent by
facsimile, telex or telegraph and confirmed in writing to the Company, 0000
Xxxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxx Xxxxxxxx, XX 00000, Attention:
______________; facsimile number ________.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters and the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns,
25
and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Agreement or
any provision herein contained. The term "successors and assigns" shall not
include a purchaser, in its capacity as such, of Shares from any of the
Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
15. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
[Signature Page Follows]
26
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
INFORMAX, INC.
By
------------------------------
Name:
Title:
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
U.S. BANCORP XXXXX XXXXXXX INC.
XXXXX, XXXXXXXX & XXXX
By BEAR, XXXXXXX & CO. INC.
By
----------------------------
Name:
Title:
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, Xxxxxxx & Co. Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxx, Xxxxxxxx & Xxxx
Total .............................................
