Exhibit 1.1
_______________ SHARES
EYETECH PHARMACEUTICALS, INC.
COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
__________, 2003
_____________, 2003
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston LLC
Bear, Xxxxxxx & Co., Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
EYETECH PHARMACEUTICALS, INC., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") _______________ shares of its common stock, par
value $.01 per share (the "FIRM SHARES"). The Company also proposes to issue and
sell to the several Underwriters not more than an additional _________ shares of
common stock, par value $.01 per share, of the Company (the "ADDITIONAL SHARES")
if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such shares of common stock granted to the Underwriters in Section 2 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "SHARES." The shares of common stock, par value $.01 per share, of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-108781),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS."
The term "PRELIMINARY PROSPECTUS" as used in this Agreement shall mean
each preliminary prospectus included in the Registration Statement prior to the
time it becomes effective. If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement.
The Underwriters have agreed to reserve a portion of the Shares to be
purchased by them under this Agreement for sale to the Company's directors,
officers, employees and business associates and other parties related to the
Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus under the
heading "Underwriters" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by
the Underwriters and their affiliates pursuant to the Directed Share Program are
referred to hereinafter as the "DIRECTED SHARES." The Directed Shares will be
sold to the Participants at the public offering price pursuant to the terms of
this Agreement. Any Directed Shares not confirmed for purchase by any
Participant by the end of the calendar day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
Company's knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements in or omissions from the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and the Subsidiary (as defined below), taken as a
whole (a "Material Adverse Effect").
(d) The Company's only subsidiary is Eyetech Pharmaceuticals
(Ireland) Limited, a company incorporated under the laws of the Republic
of Ireland (the "Subsidiary"). The Subsidiary is not a "significant
subsidiary" as defined in Rule 1-02(w) of Regulation S-X. The Subsidiary
has no assets or liabilities and has conducted no business since the date
of its
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formation. The Subsidiary has been duly incorporated and is validly
existing as a company under the laws of the jurisdiction of its
incorporation. All of the issued shares of capital stock of the Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims; there are no outstanding
securities convertible into or exchangeable for, or warrants rights or
options to purchase from the Company or the Subsidiary, or obligations of
the Company or the Subsidiary to issue, any shares of capital stock or
membership interests in the Subsidiary.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully paid
and non-assessable. Except pursuant to agreements that do not apply to the
issuance of the Shares hereunder, which agreements will terminate upon the
Closing Date (as defined herein), no person is entitled to preemptive or
similar rights to acquire any securities of the Company. There are no
outstanding securities convertible into or exchangeable for, or warrants,
rights or options to purchase from the Company, or obligations of the
Company to issue, any shares of its Common Stock or any other class of
shares of capital stock of the Company, except as described in the
Prospectus.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of (i) applicable law, (ii) the certificate
of incorporation or by-laws of the Company, (iii) any agreement or other
instrument binding upon the Company that is material to the Company, or
(iv) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company, except, with respect to
clauses (i), (iii) and (iv), for any contraventions which would not,
singly or in the aggregate, result in a Material Adverse Effect. No
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except (i) such as have been
obtained or made under the Securities Act, (ii) such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares or (iii) such as may be required by the
National Association of Securities Dealers, Inc. in connection with the
purchase and distribution of the Shares.
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(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiary, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company or the Subsidiary
is a party or to which any of the properties of the Company or the
Subsidiary is subject that are required to be described in the
Registration Statement or the Prospectus pursuant to the Securities Act or
the rules and regulations promulgated thereunder and are not so described
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement, in each case
pursuant to the Securities Act or the rules and regulations promulgated
thereunder, that are not described or filed as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(n) The Company (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business
and (iii) is in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have
a Material Adverse Effect.
(o) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
(p) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require
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the Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement. All persons who possess such rights with respect
to the offering of the Shares have effectively waived them.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company
and the Subsidiary, taken as a whole, have not incurred any material
liability or obligation, direct or contingent, nor entered into any
material transaction not in the ordinary course of business; (ii) the
Company has not purchased any of its outstanding capital stock; (iii) the
Company has not declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock, except in each case as
described in the Prospectus; and (iv) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company and the Subsidiary, taken as a whole, except in each case as
described in the Prospectus.
(r) The Company and the Subsidiary do not own any real property.
The Company has good and marketable title to all personal property owned
by it which is material to the business of the Company and the Subsidiary,
taken as a whole, free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company; and any
real or personal property and buildings held under lease by the Company
are held by the Company under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company, in each case except as described in the Prospectus.
(s) The Company owns or possesses adequate licenses or other
rights to use the patent rights, inventions, copyrights, trademarks,
service marks, trade names, technology and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary rights, and
excluding generally commercially available "off the shelf" software
programs licensed pursuant to shrink wrap or "click and accept" licenses)
(collectively, "INTELLECTUAL PROPERTY") necessary to conduct the business
of the Company in the manner described in the Prospectus (collectively,
the "COMPANY INTELLECTUAL PROPERTY") and the absence of which,
individually or in the aggregate, would not have a Material Adverse
Effect. Except as disclosed in the Prospectus, neither the Company nor the
Subsidiary is obligated to pay a royalty, grant a license, or provide
other consideration to any third party in connection with the Company
Intellectual Property. Except as disclosed in the Prospectus or as would
not have a Material Adverse Effect, neither the Company nor the Subsidiary
has received any notice of infringement of or conflict with any
Intellectual Property rights of others. Except as disclosed in the
Prospectus or as would not have a Material Adverse Effect, the conduct of
the current and future business of the Company in the manner described in
the Prospectus does not and will not, to the knowledge of the Company,
infringe, interfere or conflict with any valid issued patent claim or
other Intellectual Property right of any third party, or any claim of a
patent application
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filed by any third party, which patent application has been published in
the PTO or similar foreign authority or is otherwise known to the Company
and which claim would reasonably be expected to issue as a valid claim.
Except as described in the Prospectus or as would not have a Material
Adverse Effect, no third party, including any academic or governmental
organization, possesses or could obtain rights to the Company Intellectual
Property which, if exercised, could enable such party to develop products
competitive to those of the Company.
(t) The Company has duly and properly filed or caused to be filed
with the United States Patent and Trademark Office (the "PTO") and
applicable foreign and international patent authorities all patent
applications owned by the Company (the "COMPANY PATENT APPLICATIONS"). To
the knowledge of the Company, the Company has complied with the PTO's duty
of candor and disclosure for the Company Patent Applications and has made
no material misrepresentation in the Company Patent Applications. The
Company is not aware of any information material to a determination of
patentability regarding the Company Patent Applications not called to the
attention of the PTO or similar foreign authority. The Company is not
aware of any information not called to the attention of the PTO or similar
foreign authority which would preclude the grant of a patent for the
Company Patent Applications. The Company has no knowledge of any
information which would preclude the Company from having clear title to
the Company Patent Applications.
(u) No material labor dispute with the employees of the Company
exists, or, to the knowledge of the Company, 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, manufacturers or
contractors that would have a Material Adverse Effect.
(v) The Company carries, or is covered by, insurance in such
amounts and covering such risks as the Company reasonably believes are
adequate for the conduct of its business and the value of its properties
and as are customary in the business in which the Company is engaged; the
Company has not been refused any insurance coverage sought or applied for;
and the Company has no reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(w) Except as described in the Prospectus, the Company possesses
all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct its
business, including without limitation all such certificates,
authorizations and permits required by the United States Food and Drug
Administration (the "FDA") or any other federal, state or foreign agencies
or bodies engaged in the regulation of pharmaceuticals or biohazardous
materials, except where the failure to so possess such certificates,
authorizations and permits, singly or in the aggregate, would not result
in a Material Adverse Effect; and, except as described in the Prospectus,
the Company has not received any notice of proceedings relating to the
revocation or modification of any such certificate,
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authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(x) The studies, tests and preclinical and clinical trials
conducted by or on behalf of the Company that are described in the
Registration Statement and the Prospectus were and, if still pending, are
being, conducted in all material respects in accordance with experimental
protocols, procedures and controls pursuant to, where applicable, accepted
professional and scientific standards; the descriptions of the results of
such studies, tests and trials contained in the Registration Statement and
the Prospectus are accurate in all material respects; and the Company has
not received any notices or correspondence from the FDA or any foreign,
state or local governmental body exercising comparable authority requiring
the termination, suspension or material modification of any studies, tests
or preclinical or clinical trials conducted by or on behalf of the Company
which termination, suspension or material modification would reasonably be
expected to have a Material Adverse Effect.
(y) The Company and the Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals; and the
Company is otherwise in compliance in all materials respects with all
applicable effective provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations issued thereunder by the Commission.
(z) Ernst & Young LLP is, and during the periods covered in their
report included in the Registration Statement and the Prospectus was, the
independent accountants with respect to the Company and the Subsidiary as
required by the Securities Act.
(aa) The consolidated financial statements of the Company and its
subsidiaries (in each case, together with the related notes thereto)
included in the Registration Statement and the Prospectus present fairly
the consolidated financial position and results of the operations of the
respective companies as of the respective dates indicated and for the
respective periods specified; and such consolidated financial statements
(together with the related notes thereto) have been prepared in conformity
with generally accepted accounting principles, consistently applied
throughout the periods involved except as otherwise stated therein. The
selected financial information included in the Registration Statement and
the Prospectus presents fairly, on the basis stated in the Registration
Statement and the Prospectus, the information shown therein and has been
compiled on a basis consistent with that of the audited consolidated
financial information included in the Registration Statement and the
Prospectus.
(bb) Each material contract, agreement and license to which the
Company is bound is legal, valid, binding, enforceable, and in full force
and effect against the Company, and to the
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knowledge of the Company, each other party thereto, except to the extent
such enforceability is subject to (i) laws of general application relating
to bankruptcy, insolvency, moratorium and the relief of debtors and (ii)
the availability of specific performance, injunctive relief and other
equitable remedies. The Company is not, and to the Company's knowledge, no
other party is in material breach or default with respect to any such
contract, agreement and license, and, to the Company's knowledge, no event
has occurred which with notice or lapse of time would constitute a
material breach or default, or permit termination, modification, or
acceleration, under any such contract, agreement or license. No party has
repudiated any material provision of any such contract, agreement or
license.
(cc) The Shares have been approved for quotation on the Nasdaq
National Market subject to official notice of issuance and other customary
conditions.
(dd) The Registration Statement, the Prospectus and any preliminary
prospectus comply, and any amendments or supplements thereto will comply,
with any applicable laws or regulations of foreign jurisdictions in which
the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, were or will be distributed in connection with the Directed
Share Program.
(ee) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, those as may be required by the securities laws of the various
states and those as may be required by the National Association of
Securities Dealers, Inc., is required in connection with the offering of
the Directed Shares in any jurisdiction where the Directed Shares are
being offered.
(ff) The Company has not offered, or caused the Underwriters or
their affiliates to offer, Firm Shares to any person pursuant to the
Directed Share Program with the intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or supplier's
level or type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company or
its products.
(gg) All persons who hold options to purchase shares of capital
stock of the Company or hold shares of capital stock of the Company
acquired through exercise of such options have executed agreements that
contain (i) "lock-up" provisions with transfer restrictions substantially
similar to those set forth in the agreement attached as Exhibit A hereto
or (ii) provisions whereby such holders agree, if requested by the
Underwriters, to execute "lock-up" agreements with transfer restrictions
substantially similar to those set forth in the agreement attached as
Exhibit A hereto.
2. Agreements to Sell and Purchase. The Company hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective number of Firm Shares set forth in Schedule I
hereto opposite its name at $______ a share (the "PURCHASE PRICE").
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On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to _______________ Additional
Shares at the Purchase Price. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice of
each election to exercise the option not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Each purchase date must be at least two business days after the
written notice is given and may not be earlier than the closing date for the
Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in this Section 2 and Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On each day, if any, that Additional
Shares are to be purchased (an "OPTION CLOSING DATE"), each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased on such Option Closing Date as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co.
Incorporated on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap 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 described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to
be sold hereunder, (B) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof that is described in the Prospectus or of which
the Underwriters have been advised in writing, (C) the grant of any stock option
or stock purchase right pursuant to the Company's 2003 Stock Incentive Plan or
2003 Employee Stock Purchase Plan and the issuance by the Company of any shares
of Common Stock upon the exercise of such stock option or stock purchase right,
provided that, prior to the grant of any such stock option or stock purchase
right, the Company shall cause the recipients of such grants to execute and
deliver to you "lock-up" agreements, each substantially in the form of Exhibit A
hereto, (D) the issuance of any shares of Common Stock in connection with
acquisition, licensing, collaboration or similar strategic arrangements,
provided that, prior to the issuance of any such shares of Common Stock, the
Company shall cause the recipients of such shares to execute and deliver to you
"lock-up" agreements, each substantially in the form of Exhibit A hereto, or (E)
the issuance by the Company of shares of Common Stock pursuant to Section 1.4(b)
of the Series D Preferred Stock Purchase Agreement, dated as of December 17,
2002, by and between the Company, Pfizer Ireland Pharmaceuticals and Pfizer Inc.
, provided that, prior to the issuance of any such shares of Common
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Stock, the Company shall cause the recipients of such shares to execute and
deliver to you "lock-up" agreements, each substantially in the form of Exhibit A
hereto.
3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of $______
a share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may re-allow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on ____________, 2003,
[T+3] or at such other time on the same or such other date, not later than
_________, 2003, [+5] as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the "CLOSING DATE." The
Closing of the offering and sale of the Firm Shares will be held at the offices
of Xxxx and Xxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 2 or at such other time on the same or
on such other date, in any event not later than _______, 2003, [green shoe
expiration +10] as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "OPTION CLOSING Date." The
Closing of the offering and sale of the Additional Shares will be held at the
offices of Xxxx and Xxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
Firm Shares and Additional Shares shall be registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or the applicable Option Closing Date, as
the case may be, for the respective accounts of the several Underwriters, with
any transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations
of the Company to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than [_____] (New York City time) on the date
hereof.
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The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and the Subsidiary, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate of the Company, dated the Closing Date and signed by an
executive officer on behalf of the Company, to the effect set forth in
Section 5(a)(i) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied in all material
respects with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of Xxxx and Xxxx LLP, outside counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has all the requisite corporate power and authority to
own its property and to conduct its business as such businesses and
properties are described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction
listed on an exhibit to such opinion;
-11-
(ii) the authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus under the caption "Description of
Capital Stock";
(iii) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable;
(iv) the Shares have been duly authorized and, when issued,
delivered and paid for in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any
preemptive rights under the Delaware General Corporation Law or the
Company's certificate of incorporation or, to the knowledge of such
counsel, any similar contractual rights granted by the Company
(except for such contractual rights as have been waived);
(v) to such counsel's knowledge, except as described in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, and all persons
who possess such rights with respect to the offering of the Shares
have effectively waived them.
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company on the
Closing Date of the transaction herein contemplated do not and will
not (A) conflict with or constitute a breach of any of the terms or
provisions of, or constitute a default under, the certificate of
incorporation or bylaws of the Company, or any indenture, loan
agreement, mortgage, deed of trust or other agreement or instrument
to which the Company is a party or by which the Company may be bound
and which is filed as an exhibit to the Registration Statement; (B)
violate any United States federal or New York state statute, rule or
regulation applicable to the Company; or (C) contravene any
judgment, order or decree specifically naming the Company of any
governmental body, agency or court having jurisdiction over the
Company of which such counsel is aware;
(viii) The execution, delivery and performance of this
Agreement by the Company, and the consummation by the Company on the
Closing Date of the transactions herein contemplated will not
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency,
-12-
except such as have been obtained under the Securities Act and the
Exchange Act and except such as may be required by the securities or
Blue Sky laws of the various states or foreign jurisdictions or by
the National Association of Securities Dealers, Inc., as to which
such counsel need express no opinion;
(ix) the statements included in (A) the Prospectus under the
captions "Risk Factors -- The success of Macugen depends heavily on
our collaboration with Pfizer, which was established only recently
and involves a complex sharing of control over decisions,
responsibilities and costs and benefits. Any loss of Pfizer as a
collaborator, or adverse development in the collaboration, would
materially harm our business," "Risk Factors --If our clinical
trials are unsuccessful, or if we experience significant delays in
these trials, our ability to commercialize Macugen and our future
product candidates will be impaired," "Risk Factors -- The
manufacture and packaging of pharmaceutical products such as Macugen
are subject to the requirements of the FDA and similar foreign
regulatory bodies. If we or our third party manufacturers fail to
satisfy these requirements, our product development and
commercialization efforts may be materially harmed," "Risk Factors
-- Macugen and our other potential products may not be commercially
viable if we fail to obtain an adequate level of reimbursement for
these products by Medicare and other third party payors. The markets
for our products may also be limited by the indications for which
their use may be reimbursed or the frequency in which they may be
administered," "Risk Factors -- We may not be able to obtain
marketing approval for any of the products resulting from our
development efforts, including Macugen. Failure to obtain these
approvals could materially harm our business," "Risk Factors -- The
'fast track' designation for development of Macugen may not actually
lead to a faster development or regulatory review or approval
process," "Risk Factors -- Our products could be subject to
restrictions or withdrawal from the market and we may be subject to
penalties if we fail to comply with regulatory requirements, or if
we experience unanticipated problems with our products, when and if
any of them are approved," "Risk Factors -- If we are unable to
obtain and maintain protection for the intellectual property
incorporated into our products, the value of our technology and
products will be adversely affected," "Risk Factors -- If we fail to
comply with our obligations in the agreements under which we license
development or commercialization rights to products or technology
from third parties, we could lose license rights that are important
to our business," "Risk Factors --Third parties may own or control
patents or patent applications and require us to seek licenses,
which could increase our development and commercialization costs, or
prevent us from developing or marketing our products or services,"
"Risk Factors -- Third parties may own or control patent
applications that would be infringed by our technologies, drug
targets or potential products. This could cause us to become
involved in expensive patent litigation or other proceedings, which
could result in our incurring substantial costs and expenses and
liability for damages and could require us to stop some of our
development and commercialization efforts," "Business --
Collaboration with Pfizer,"
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"Business -- Manufacturing," "Business -- License Agreements,"
"Business -- Patents and Proprietary Rights," "Business --
Government Regulation -- United States Governmental Regulation,"
"Business -- Third Party Reimbursement and Pricing Controls,"
"Business -- Trademarks," "Description of Capital Stock" and
"Underwriters" and (B) the Registration Statement in Items 14 and
15, insofar as such statements constitute matters of law or legal
conclusions, or summarize the terms of agreements or other
documents, are correct in all material respects;
(x) to such counsel's knowledge, there are no agreements,
contracts, leases or other documents to which the Company is a party
or by which the Company may be bound that are required by the
Securities Act and the rules and regulations thereunder to be filed
as exhibits to the Registration Statement that are not so filed;
(xi) such counsel does not know of any legal or governmental
proceedings pending or threatened against the Company that are
required by the Securities Act or the rules and regulations
thereunder to be described in the Registration Statement or in the
Prospectus that are not so described;
(xii) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the net
proceeds thereof as described in the Prospectus, will not be
required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
(xiii) such counsel (A) is of the opinion that the
Registration Statement and the Prospectus (except for the financial
statements and other financial and accounting data and statistical
data derived from the financial statements included therein as to
which such counsel need not express any belief) comply as to form in
all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission
thereunder, (B) has no reason to believe that the Registration
Statement and the Prospectus included therein at the time the
Registration Statement became effective (except for the financial
statements included therein and other financial and accounting data
and statistical data derived from the financial statements included
therein, as to which such counsel need not express any belief)
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) has no reason to
believe that the Prospectus (except for the financial statements and
other financial and accounting data and statistical data derived
from the financial statements included therein, as to which such
counsel need not express any belief) as of its date or as of the
Closing Date contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
-14-
(d) The Underwriters shall have received on the Closing Date an
intellectual property opinion from Xxxx and Xxxx LLP, counsel to the
Company, dated the Closing Date, to the effect that:
(i) to such counsel's knowledge, the Company owns, possesses
or has adequate rights to use the Company Intellectual Property
reasonably necessary to conduct the business of the Company in the
manner described in the Prospectus, except to the extent that the
failure to own, possess or have adequate rights to use such Company
Intellectual Property would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect;
(ii) other than as set forth or contemplated in the
Prospectus, to such counsel's knowledge, the Company has not
received any notice of infringement of or conflict with, and such
counsel has no knowledge of any infringement of or conflict with,
asserted rights of others with respect to the Company Intellectual
Property, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect;
(iii) other than as set forth or contemplated in the
Prospectus or as would not reasonably be expected to result in a
Material Adverse Effect, to such counsel's knowledge, the conduct of
the current and future business of the Company in the manner
described in the Prospectus does not and will not infringe,
interfere or conflict with any valid issued patent claim or other
Intellectual Property right of any third party, or any claim of a
patent application filed by any third party, which patent
application has been published in the PTO or similar foreign
authority or is otherwise known to the Company and which claim would
reasonably be expected to issue as a valid claim;
(iv) other than as set forth or contemplated in the
Prospectus, to such counsel's knowledge, no third party, including
any academic or governmental organization, possesses or could obtain
rights to the patents, patent applications or patent rights of the
Company which, if exercised, would allow such third party to develop
products competitive with those of the Company and would,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect;
(v) to the knowledge of such counsel, all information
material to patentability has been timely disclosed to the PTO
during the prosecution of the Company Patent Applications and no
misrepresentation has been made to, or material information withheld
from, the PTO during such prosecution; and
(vi) such counsel has no reason to believe that any of the
Company's trademark applications filed with the PTO will not
eventuate in registered trademarks.
-15-
(e) The Underwriters shall have received on the Closing Date an
opinion of Ropes & Xxxx LLP, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 5(c)(iv),
5(c)(vi), 5(c)(ix) (but only as to the statements in the Prospectus under
"Description of Capital Stock" and "Underwriters") and 5(c)(xiii) above.
With respect to Section 5(c)(xiii) and Section 5(e) (with respect to
the matters in Section 5(c)(xiii)) above, such counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification, except as specified.
The opinions of Xxxx and Xxxx LLP described in Section 5(c) and
Section 5(d) above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Ernst & Young LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to you on
or before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, four signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City as soon
as practicable following the date of this Agreement and in no event later
than 9:00 p.m. New York City time on the business day next succeeding the
date of this Agreement and during the period mentioned in Section 6(c)
below, as many copies of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
-16-
request. The costs of furnishing such copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement shall
be borne by the Company with respect to any such documents furnished
during the nine-month period after the date of this Agreement and by the
Underwriters thereafter.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law. The costs of
complying with this Section 6(c) shall be borne by the Company with
respect to any amendment or supplement required during the nine-month
period after the date of this Agreement and by the Underwriters
thereafter.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending ________, 2004 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Except as otherwise provided herein, whether or not the
transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident
to the performance of the Company's obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs
associated therewith, and the
-17-
mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of
producing any Blue Sky or Legal Investment memorandum in connection with
the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in
connection with the Blue Sky memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred
in connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) all
fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to listing the Shares on the NASDAQ National
Market, (vi) the cost of printing certificates representing the Shares,
(vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered
in connection with the road show, (ix) all fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other takes, if any,
incurred by the Underwriters in connection with the Directed Share
Program, and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 7 entitled "Indemnity and Contribution,"
Section 8 entitled "Directed Share Program Indemnification," and the last
paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel;
stock transfer taxes payable on resale of any of the Shares by them; and
any advertising expenses connected with any offers they may make.
(g) To place stop transfer orders on any Directed Shares that have
been sold to Participants who are subject to the three month restriction
on sale, transfer, assignment, pledge or hypothecation imposed by NASD
Regulation, Inc. under its Interpretative Material 2110-1 on free-riding
and withholding to the extent necessary to ensure compliance with the
three month restrictions.
(h) To comply with all applicable securities and other applicable
laws, rules and regulations in each jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
-18-
(i) To enforce the Company's rights under the agreements referred
to in Section 1(gg) above (i) to restrict the transfer of securities
during the 180-day period following the Closing Date and (ii) to obtain
executed copies of "lock-up" agreements in the form of Exhibit A hereto
from each option holder who exercises an option during the 180-day period
following the Closing Date.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and each
affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein;
provided, however, that the foregoing 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, claims,
damages or liabilities purchased Shares, any person controlling such
Underwriter, or any affiliate of such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
-19-
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in
writing jointly by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
Xxxxxx Xxxxxxx & Co. Incorporated in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement (other than reimbursement for fees and
expenses that the indemnifying party is contesting in good faith). No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a)
or 7(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable
-20-
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate Public Offering Price of the Shares. The relative fault
of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
Section 7(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this
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Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter
or by or on behalf of the Company, its officers or directors of any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
8. Directed Share Program Indemnification.
(a) The Company agrees to indemnify and hold harmless Xxxxxx
Xxxxxxx & Co. Incorporated and its affiliates within the meaning of Rule
405 under the Securities Act and each person, if any, who controls Xxxxxx
Xxxxxxx & Co. Incorporated or its affiliates within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
("XXXXXX XXXXXXX ENTITIES"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating
any such action or claim) (i) caused by any untrue statement or alleged
untrue statement of a material fact contained in any material prepared by
or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant has agreed to purchase; or (iii)
related to, arising out of, or in connection with the Directed Share
Program other than losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted
from the bad faith or gross negligence of the Xxxxxx Xxxxxxx Entities.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Xxxxxx Xxxxxxx Entity in
respect of which indemnity may be sought pursuant to Section 8(a), the
Xxxxxx Xxxxxxx Entity seeking indemnity shall promptly notify the Company
in writing and the Company, upon request of the Xxxxxx Xxxxxxx Entity,
shall retain counsel reasonably satisfactory to the Xxxxxx Xxxxxxx Entity
to represent the Xxxxxx Xxxxxxx Entity and any other indemnified party
that the Company may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such Xxxxxx Xxxxxxx Entity unless (i) the Company shall have
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the Company
and the Xxxxxx Xxxxxxx Entity and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. The Company shall not, in respect of the legal
expenses of the Xxxxxx Xxxxxxx Entities in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all Xxxxxx Xxxxxxx Entities. Any such firm for the Xxxxxx
Xxxxxxx Entities shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the
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plaintiff, the Company agrees to indemnify the Xxxxxx Xxxxxxx Entities
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time a Xxxxxx
Xxxxxxx Entity shall have requested the Company to reimburse it for fees
and expenses of counsel as contemplated by the second and third sentences
of this paragraph, the Company agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by the
Company of the aforesaid request and (ii) the Company shall not have
reimbursed the Xxxxxx Xxxxxxx Entity in accordance with such request prior
to the date of such settlement (other than reimbursement for fees and
expenses that the Company is contesting in good faith). The Company shall
not, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated, effect any settlement of any pending or threatened
proceeding in respect of which any Xxxxxx Xxxxxxx Entity is or could have
been a party and indemnity could have been sought hereunder by such Xxxxxx
Xxxxxxx Entity, unless such settlement includes an unconditional release
of the Xxxxxx Xxxxxxx Entities from all liability on claims that are the
subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 8(a)
is unavailable to a Xxxxxx Xxxxxxx Entity or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then the
Company, in lieu of indemnifying the Xxxxxx Xxxxxxx Entity thereunder,
shall contribute to the amount paid or payable by the Xxxxxx Xxxxxxx
Entity as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Xxxxxx Xxxxxxx Entities on
the other hand from the offering of the Directed Shares or (ii) if the
allocation provided by clause 8(c)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(c)(i) above but also the relative fault
of the Company on the one hand and of the Xxxxxx Xxxxxxx Entities on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and of the Xxxxxx Xxxxxxx Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to be
in the same respective proportions as the net proceeds from the offering
of the Directed Shares (before deducting expenses) and the total
underwriting discounts and commissions received by the Xxxxxx Xxxxxxx
Entities for the Directed Shares, bear to the aggregate Public Offering
Price of the Shares. If the loss, claim, damage or liability is caused by
an untrue or alleged untrue statement of a material fact, the relative
fault of the Company on the one hand and the Xxxxxx Xxxxxxx Entities on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement or the omission or alleged
omission relates to information supplied by the Company or by the Xxxxxx
Xxxxxxx Entities and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree that it
would not be just or equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even
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if the Xxxxxx Xxxxxxx Entities were treated as one entity for such
purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 8(c). The amount
paid or payable by the Xxxxxx Xxxxxxx Entities as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the Xxxxxx
Xxxxxxx Entities in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Xxxxxx Xxxxxxx Entity shall be required to contribute any amount in excess
of the amount by which the total price at which the Directed Shares
distributed to the public were offered to the public exceeds the amount of
any damages that such Xxxxxx Xxxxxxx Entity has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any Xxxxxx Xxxxxxx Entity at law or in equity.
(e) The indemnity and contribution provisions contained in this
Section 8 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by
or on behalf of any Xxxxxx Xxxxxxx Entity or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Directed Shares.
9. Termination. The Underwriters may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the NASDAQ National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the
terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the applicable Option Closing Date, as
the case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in
-24-
Schedule I bears to the aggregate number of Firm Shares set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 10 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
applicable Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Shares and the aggregate number of Additional
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased on such Option Closing
Date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase the Additional Shares to be sold on such
Option Closing Date or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. 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.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. 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.
-25-
Very truly yours,
EYETECH PHARMACEUTICALS, INC.
By:____________________________
Name:
Title:
Accepted as of the date hereof
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:__________________________
Name:
Title:
BY: XXXXXX XXXXXXX & CO. INCORPORATED
By:__________________________
Name:
Title:
SCHEDULE I
Number of
Firm Shares
Underwriter To Be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston LLC
Bear, Xxxxxxx & Co. Inc.
---------------
Total .....
===============
Exhibit A
[FORM OF LOCK-UP LETTER]
August ___, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("XXXXXXX XXXXX") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Eyetech Pharmaceuticals, Inc., a Delaware
corporation (the "COMPANY"), providing for the public offering (the "PUBLIC
OFFERING") by the several Underwriters, including Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxx (the "UNDERWRITERS"), of shares (the "SHARES") of the Common Stock, $.01
par value per share, of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx and
Xxxxxxx Xxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap 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 described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Public
Offering, (b) transfers of shares of Common Stock or any security convertible
into Common Stock as a bona fide gift or gifts, (c) transfers of shares of
Common Stock or any security convertible into Common Stock to any trust for the
direct or indirect benefit of the undersigned or a member of the "immediate
family" (i.e. any relationship by blood, marriage or adoption, not more remote
that first cousin) of the undersigned not involving a disposition for value, and
(d) distributions of shares of
Common Stock or any security convertible into Common Stock to limited partners
or stockholders of the undersigned; provided that in the case of any transfer or
distribution pursuant to clause (b), (c) or (d), (i) each donee, transferee,
trustee or distributee shall execute and deliver to Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxx a duplicate form of this Lock-up Letter and (ii) no filing by the
undersigned or any other party to such transfer or distribution (donor, donee,
trustee, beneficiary, transferor or transferee) under Section 16(a) of the
Securities Exchange Act of 1934, as amended, shall be required or shall be made
voluntarily in connection with such transfer or distribution (other than a
filing on a Form 5 made after the expiration of the 180-day period referred to
above).
In addition, the undersigned agrees that, without the prior written
consent of Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx on behalf of the Underwriters, it
will not, during the period commencing on the date hereof and ending 180 days
after the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's share of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
This Lock-up Agreement shall automatically terminate upon the earliest to
occur, if any, of: (a) either Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, on the one hand,
or the Company, on the other hand, advising the other in writing, prior to the
execution of the Underwriting Agreement, that it has determined not to proceed
with the Public Offering, (b) termination of the Underwriting Agreement before
the sale of any Shares to the Underwriters, or (c) February 29, 2004, in the
event that the Underwriting Agreement has not been executed by that date.
Very truly yours,
----------------------------------------
(Name)
----------------------------------------
(Address)
