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3,000,000 SHARES(1)
ANTIGENICS INC.
COMMON STOCK
PURCHASE AGREEMENT
_____________________, 2000
U.S. BANCORP XXXXX XXXXXXX INC.
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Antigenics Inc., a Delaware corporation (the "Company"), proposes to
sell to the several Underwriters named in Schedule I hereto (the "Underwriters")
an aggregate of 3,000,000 shares (the "Firm Shares") of Common Stock, $.01 par
value per share (the "Common Stock"), of the Company. The Firm Shares consist of
3,000,000 authorized but unissued shares of Common Stock to be issued and sold
by the Company. The Company has also granted to the several Underwriters an
option to purchase up to 450,000 additional shares of Common Stock, on the terms
and for the purposes set forth in Section 3 hereof (the "Option Shares"). The
Firm Shares and any Option Shares purchased pursuant to this Purchase Agreement
are herein collectively called the "Securities."
Concurrently with the issuance and sale of the Securities on the First
Closing Date (as defined below), the Company and Antigenics L.L.C. will
consummate a merger whereby Antigenics L.L.C. will merge with and into the
Company (the "Merger").
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(1) Plus an option to purchase up to 450,000 additional shares to cover
over-allotments.
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The Company and Antigenics L.L.C. hereby confirm their agreement with
respect to the sale of the Securities to the several Underwriters, for whom you
are acting as Representatives (the "Representatives").
1. Registration Statement and Prospectus. A registration statement on
Form S-1 (File No. 333-91747) with respect to the Securities, including a
preliminary form of prospectus, has been prepared by the Company in conformity
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations ("Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission; one or more amendments to such registration
statement have also been so prepared and have been, or will be, so filed; and,
if the Company has elected to rely upon Rule 462(b) of the Rules and Regulations
to increase the size of the offering registered under the Act, the Company will
prepare and file with the Commission a registration statement with respect to
such increase pursuant to Rule 462(b). Copies of such registration statement(s)
and amendments and each related preliminary prospectus have been, or in the case
of a registration statement pursuant to Rule 462(b) will be, delivered to you.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus (including a term sheet meeting
the requirements of Rule 434 of the Rules and Regulations). If the Company has
elected to rely upon Rule 430A of the Rules and Regulations, it will prepare and
file a prospectus (or a term sheet meeting the requirements of Rule 434)
pursuant to Rule 424(b) that discloses the information previously omitted from
the prospectus in reliance upon Rule 430A. Such registration statement as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
First Closing Date (as hereinafter defined), such registration statement as so
amended (but only from and after the effectiveness of such amendment), including
a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) and 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 in order to meet the
requirements of Section 10(a) of the Rules and Regulations) filed by the Company
with the Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the
Rules and Regulations or any other such prospectus provided to the Underwriters
by the Company for use in connection with the offering of the Securities
(whether or not required to be filed by the Company with the Commission pursuant
to Rule 424(b) of the Rules and Regulations) differs from the prospectus on file
at the time the Registration Statement is or was declared effective by the
Commission, the term "Prospectus" shall refer to such differing prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) from and after the time such prospectus is filed with the
Commission or transmitted to the Commission for
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filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to the Underwriters by the Company for such
use. The term "Preliminary Prospectus" as used herein means the preliminary
prospectus included in Amendment No. 1 to the Registration Statement, as such
prospectus shall have been amended or supplemented prior to the time the
Registration Statement becomes or became effective under the Act and any
prospectus subject to completion as described in Rule 430A or 434 of the Rules
and Regulations.
As part of the offering contemplated by this Agreement, U.S. Bancorp
Xxxxx Xxxxxxx Inc. ("Xxxxx Xxxxxxx") has agreed to reserve out of the Securities
set forth opposite its name on Schedule I to this Agreement, up to 150,000
shares, for sale to the Company's employees, officers and directors and other
parties associated with the Company (collectively, "Participants"), as set forth
in the Prospectus under the heading "Underwriting" (the "Directed Share
Program"). The Securities to be sold by Xxxxx Xxxxxxx pursuant to the Directed
Share Program (the "Directed Shares") will be sold by Xxxxx Xxxxxxx pursuant to
this Agreement at the public offering price. Any Directed Shares not orally
confirmed for purchase by any Participants by the end of the business day on
which this Agreement is executed will be offered to the public by Xxxxx Xxxxxxx
as set forth in the Prospectus.
2. Representations and Warranties of the Company and Antigenics L.L.C.
(a) Each of the Company and Antigenics L.L.C. represents and
warrants to, and agrees with, the several Underwriters as follows:
(i) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and each
Preliminary Prospectus, at the time of filing thereof, did not contain
an 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, in the light of the circumstances under which they were made,
not misleading; except that the foregoing shall not apply to statements
in or omissions from any Preliminary Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by
you, or by any Underwriter through you, specifically for use in the
preparation thereof.
(ii) As of the time the Registration Statement (or any
post-effective amendment thereto, including a registration statement
(if any) filed pursuant to Rule 462(b) of the Rules and Regulations
increasing the size of the offering registered under the Act) is or was
declared effective by the Commission, upon the filing or first delivery
to the Underwriters of the Prospectus (or any supplement to the
Prospectus (including any term sheet meeting the requirements of Rule
434 of the Rules and Regulations)) and at the First Closing Date and
Second Closing Date (as hereinafter defined), (A) the Registration
Statement and Prospectus (in each case, as so amended and/or
supplemented) conformed or will conform in all material respects to the
requirements of the Act and the Rules and Regulations, (B) the
Registration Statement (as so amended) did not or will not include an
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, and (C) the Prospectus (as so supplemented) did
not
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or will not include an 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, in light of the circumstances in which
they are or were made, not misleading; except that the foregoing shall
not apply to statements in or omissions from any such document in
reliance upon, and in conformity with, written information furnished to
the Company by you, or by any Underwriter through you, specifically for
use in the preparation thereof. If the Registration Statement has been
declared effective by the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission.
(iii) The financial statements of Antigenics L.L.C., together
with the notes thereto, set forth in the Registration Statement and
Prospectus comply in all material respects with the requirements of the
Act and fairly present the financial condition of Antigenics L.L.C. as
of the dates indicated and the results of operations and changes in
cash flows for the periods therein specified in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein);
and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. No other
financial statements or schedules are required to be included in the
Registration Statement or Prospectus. KPMG LLP, which has expressed its
opinion with respect to the financial statements and schedules filed as
a part of the Registration Statement and included in the Registration
Statement and Prospectus, are independent public accountants as
required by the Act and the Rules and Regulations.
(iv) Each of the Company, Antigenics L.L.C. and its subsidiary
has been duly organized and is validly existing as a corporation or
limited liability company, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or organization. Each of
the Company, Antigenics L.L.C. and its subsidiary has full power and
authority to own its properties and conduct its business as currently
being carried on and as described in the Registration Statement and
Prospectus, and is duly qualified to do business as a foreign entity in
good standing in each jurisdiction in which it owns or leases real
property or in which the conduct of its business makes such
qualification necessary and in which the failure to so qualify would
have a material adverse effect upon its business, condition (financial
or otherwise) or properties, taken as a whole. The Company has no
subsidiaries.
(v) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, none of the Company nor
Antigenics L.L.C. or its subsidiary has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its equity capital or capital
stock; and there has not been any change in the equity capital or
capital stock (other than a change in the number of outstanding shares
of Common Stock or members' equity units of Antigenics L.L.C. due to
the issuance of shares or units upon the exercise of outstanding
options or warrants), or any material change in the short-term or
long-term debt,
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or any issuance of options, warrants, convertible securities or other
rights to purchase the equity capital or capital stock, of the Company,
Antigenics L.L.C. or its subsidiary, or any material adverse change, or
any development involving a prospective material adverse change, in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of
the Company or Antigenics L.L.C. and its subsidiary, taken as a whole.
(vi) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company or Antigenics L.L.C.,
threatened or contemplated, any action, suit or proceeding to which the
Company, Antigenics L.L.C. or its subsidiary is a party before or by
any court or governmental agency, authority or body, or any arbitrator,
which might result in any material adverse change in the condition
(financial or otherwise), business, prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(vii) There are no contracts or documents of the Company,
Antigenics L.L.C. or its subsidiary that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been so filed.
(viii) This Agreement has been duly authorized, executed and
delivered by each of the Company and Antigenics L.L.C., and constitutes
a valid, legal and binding obligation of the Company and Antigenics
L.L.C., enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws
and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The
execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any agreement or instrument to
which the Company or Antigenics L.L.C. is a party or by which either of
them is bound or to which any of their respective property is subject,
the Company's or Antigenics L.L.C.'s charter or by-laws or similar
organizational documents, or any order, rule, regulation or decree of
any court or governmental agency or body having jurisdiction over the
Company or Antigenics L.L.C. or any of their respective properties; no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the execution, delivery
and performance of this Agreement or for the consummation of the
transactions contemplated hereby, including the Merger and the issuance
or sale of the Securities by the Company, except such as may be
required under the Act or state securities or blue sky laws and, with
respect to the Merger, the filings contemplated by the Merger
Agreement, which filings will be made on or prior to the First Closing
Date; and each of the Company and Antigenics L.L.C. has full power and
authority to enter into this Agreement and the Company has full power
and authority to authorize, issue and sell the Securities as
contemplated by this Agreement.
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(ix) All of the issued and outstanding shares of capital stock
of the Company, including the outstanding shares of Common Stock, are
duly authorized and validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws,
were not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities, and the holders
thereof are not subject to personal liability by reason of being such
holders; the Securities which may be sold hereunder by the Company have
been duly authorized and, when issued, delivered and paid for in
accordance with the terms hereof, will have been validly issued and
will be fully paid and nonassessable, and the holders thereof will not
be subject to personal liability by reason of being such holders; and
the capital stock of the Company, including the Common Stock, conforms
to the description thereof in the Registration Statement and
Prospectus. Except as otherwise stated in the Registration Statement
and Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's
charter, by-laws or any agreement or other instrument to which the
Company is a party or by which the Company is bound. Except as
described in the Registration Statement and the Prospectus, neither the
filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any shares of Common Stock or
other securities of the Company. All of the issued and outstanding
shares of capital stock of Antigenics L.L.C.'s subsidiary have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise described in the Registration
Statement and Prospectus and except for any directors' qualifying
shares, Antigenics L.L.C. owns of record and beneficially, free and
clear of any security interests, claims, liens, proxies, equities or
other encumbrances, all of the issued and outstanding shares of such
stock. Except as described in the Registration Statement and the
Prospectus, there are no options, warrants, agreements, contracts or
other rights in existence to purchase or acquire from the Company,
Antigenics L.L.C. or its subsidiary any shares of the capital stock or
equity interests in the Company, Antigenics L.L.C. or its subsidiary.
The Company has an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus.
(x) As of the date hereof, in the case of Antigenics L.L.C.
and its subsidiary, and as of the date hereof and after giving effect
to the Merger, in the case of the Company, (a) the Company, Antigenics
L.L.C. and its subsidiary hold, and are operating in compliance in all
material respects with, all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct of their
business and all such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and
in full force and effect and (b) the Company, Antigenics L.L.C. and its
subsidiary are in compliance in all material respects with all
applicable federal, state, local and foreign laws, regulations, orders
and decrees.
(xi) As of the date hereof, in the case of Antigenics L.L.C.
and its subsidiary, and as of the date hereof and after giving effect
to the Merger, in the case of the Company, the
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Company and its subsidiaries have good and marketable title to all
property described in the Registration Statement and Prospectus as
being owned by them, in each case free and clear of all liens, claims,
security interests or other encumbrances except such as are described
in the Registration Statement and the Prospectus; the property held
under lease by the Company, Antigenics L.L.C. and its subsidiary is
held by them under valid, subsisting and enforceable leases with only
such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business of
the Company, Antigenics L.L.C. or its subsidiary.
(xii) Except as described in the Registration Statement and
Prospectus, as of the date hereof, in the case of Antigenics L.L.C. and
its subsidiary, and as of the date hereof and after giving effect to
the Merger, in the case of the Company, the Company, Antigenics L.L.C.
and its subsidiary own or possess all patents, patent applications,
trademarks, service marks, tradenames, trademark registrations, service
xxxx registrations, copyrights, licenses, inventions, trade secrets and
rights necessary for the conduct of the business of the Company,
Antigenics L.L.C. and its subsidiary as currently carried on by
Antigenics L.L.C. and as described in the Registration Statement and
Prospectus; except as stated in the Registration Statement and
Prospectus, no name which the Company, Antigenics L.L.C. or its
subsidiary uses and, to the best knowledge of the Company and
Antigencis L.L.C., no other aspect of the business of the Company,
Antigenics L.L.C. or its subsidiary will involve or give rise to any
infringement of, or license or similar fees for, any patents, patent
applications, trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets or other similar rights of others material to
the business or prospects of the Company or Antigenics L.L.C., and none
of the Company, Antigenics L.L.C. or its subsidiary has received any
notice alleging any such infringement or fee.
(xiii) None of the Company, Antigenics L.L.C. or its subsidiary is in
violation of its respective charter or by-laws or similar
organizational documents or in breach of or otherwise in default in the
performance of any material obligation, agreement or condition
contained in any bond, debenture, note, indenture, loan agreement or
any other material contract, lease or other instrument to which it is
subject or by which any of them may be bound, or to which any of the
material property or assets of the Company, Antigenics L.L.C. or its
subsidiary is subject.
(xiv) The Company, Antigenics L.L.C. and its subsidiary have
filed all federal, state, local and foreign income and franchise tax
returns required to be filed prior to the date hereof and are not in
default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto, other than any which
the Company, Antigenics L.L.C. or its subsidiary is contesting in good
faith.
(xv) Neither the Company nor Antigenics L.L.C. has distributed
nor will they distribute any prospectus or other offering material in
connection with the offering and sale
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of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by
the Company or Antigenics L.L.C.
(xvi) On the date the Registration Statement became or becomes
effective, the Company's Registration Statement on Form 8-A or other
applicable form under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), became or will become effective.
(xvii) Other than Adjucine Therapeutics, Inc., a wholly owned
subsidiary of Antigenics L.L.C., neither Antigenics L.L.C. nor the
Company owns any capital stock or other equity or ownership or
proprietary interest in any corporation, partnership, association,
trust or other entity.
(xviii) Each of the Company and Antigenics L.L.C. maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xix) Other than as contemplated by this Agreement, neither
the Company nor Antigenics L.L.C. has incurred any liability for any
finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xx) Neither Antigenics L.L.C. nor the Company is and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Registration
Statement and the Prospectus, the Company will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(xxi) No material labor dispute with the employees of the
Company, Antigenics L.L.C. or its subsidiary exists, except as
described in the Registration Statement and the Prospectus, or, to the
knowledge of the Company or Antigenics L.L.C., is imminent; and neither
the Company nor Antigenics L.L.C. is aware of any existing, threatened
or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a material
adverse effect on the Company or on Antigenics L.L.C. and its
subsidiary, taken as a whole.
(xxii) The Company, Antigenics L.L.C. and its subsidiary are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; none of the
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Company, Antigenics L.L.C. or its subsidiary has been refused any
insurance coverage sought or applied for; and none of the Company,
Antigenics L.L.C. or its subsidiary has any 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 on the Company or on
Antigenics L.L.C. and its subsidiary, taken as a whole, except as
described in the Prospectus.
(xxiii) Neither the Company nor Antigenics L.L.C. has offered,
or caused the Underwriters to offer, Securities to any person pursuant
to the Directed Share Program with the specific intent to unlawfully
influence (A) a customer or supplier of the Company or Antigenics
L.L.C. to alter the customer's or supplier's level or type of business
with the Company or Antigenics L.L.C., or (B) a trade journalist or
publication to write or publish favorable information about the Company
or Antigenics L.L.C. or their products.
(xxiv) (i) The Registration Statement, the Prospectus and any
Preliminary Prospectus comply in all material respects, and any further
amendments or supplements thereto will comply in all material respects,
with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any Preliminary Prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
Directed Share Program, and (ii) no authorization, approval, consent,
license, order, registration or qualification of or with any
government, governmental instrumentality or court, other than such as
have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States.
(xxv) As of the date hereof, in the case of Antigenics L.L.C.
and its subsidiary, and as of the date hereof and after giving effect
to the Merger, in the case of the Company, the Company, Antigenics
L.L.C. and its subsidiary (A) are 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"), (B) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (C) are 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 on the
Company or on Antigenics L.L.C. and its subsidiary, taken as a whole.
(xxvi) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
medical wastes, toxic wastes, hazardous wastes or hazardous substances
by the Company, Antigenics L.L.C. or its subsidiary (or, to the
knowledge of the Company and Antigenics L.L.C., any of their
predecessors in interest) at,
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upon or from any of the property now or previously owned or leased by
the Company, Antigenics L.L.C. or its subsidiary in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions a material adverse effect on the
Company or on Antigenics L.L.C. and its subsidiary, taken as a whole;
there has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or of any
medical wastes, toxic wastes, hazardous wastes or hazardous substances
due to or caused by the Company, Antigenics L.L.C. or its subsidiary or
with respect to which the Company, Antigenics L.L.C. or its subsidiary
had knowledge, except for any such spill, discharge, leak, emission,
injection, escapes, dumpings or releases which would not have or would
not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings or releases, a material adverse effect on the Company or on
Antigenics L.L.C. and its subsidiary, taken as a whole; and the terms
"hazardous substances," "toxic wastes," "hazardous wastes" and "medical
wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(xxvii) The Merger Agreement dated as of __________, 2000,
between the Company and Antigenics L.L.C. has been duly authorized,
executed and delivered by each of the Company and Antigenics L.L.C. and
constitutes a legal, valid and binding obligation of each of the
Company and Antigenics L.L.C. enforceable in accordance with its terms
(except as such enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the rights of creditors generally and subject
to general principles of equity). All conditions to the consummation of
the Merger other than the issuance and sale of the Securities on the
First Closing Date have been either satisfied or validly waived on or
prior to the date hereof.
(b) Any certificate signed by any officer of the Company or
Antigenics L.L.C. and delivered to you or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company or Antigenics L.L.C. to
each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell 3,000,000 Firm Shares to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto. The purchase price for each Firm Share
shall be $ per share. In making this Agreement, each Underwriter is contracting
severally and not jointly; except as provided in paragraph (c) of this Section 3
and in Section 8 hereof, the agreement of each Underwriter is to purchase only
the respective number of Firm Shares specified in Schedule I.
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The Firm Shares will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase price
therefor by same day funds payable to the order of the Company at the offices of
U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually acceptable, at
9:00 a.m. Central time on the third (or if the Securities are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as you and the Company determine pursuant to Rule 15c6-1(a) under
the Exchange Act, such time and date of delivery being herein referred to as the
"First Closing Date." If the Representatives so elect, delivery of the Firm
Shares may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Representatives. Certificates
representing the Firm Shares, in definitive form and in such denominations and
registered in such names as you may request upon at least two business days'
prior notice to the Company, will be made available for checking and packaging
not later than 10:30 a.m., Central time, on the business day next preceding the
First Closing Date at the offices of U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx
Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as
may be mutually acceptable.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants to the several Underwriters an option to
purchase all or any portion of the Option Shares at the same purchase price as
the Firm Shares, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option granted
hereunder may be exercised at any time (but not more than once) within 30 days
after the effective date of this Agreement upon notice (confirmed in writing) by
the Representatives to the Company setting forth the aggregate number of Option
Shares as to which the several Underwriters are exercising the option, the names
and denominations in which the certificates for the Option Shares are to be
registered and the date and time, as determined by you, when the Option Shares
are to be delivered, such time and date being herein referred to as the "Second
Closing" and "Second Closing Date," respectively; provided, however, that the
Second Closing Date shall not be earlier than the First Closing Date nor earlier
than the second business day after the date on which the option shall have been
exercised. The number of Option Shares to be purchased by each Underwriter shall
be the same percentage of the total number of Option Shares to be purchased by
the several Underwriters as the number of Firm Shares to be purchased by such
Underwriter is of the total number of Firm Shares to be purchased by the several
Underwriters, as adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares. No Option Shares
shall be sold and delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The Option Shares will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase price
therefor by same day funds payable to the order of the Company at the offices of
U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually acceptable at
9:00 a.m., Central time, on the Second Closing Date. If the Representatives so
elect, delivery of the Option
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Shares may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Representatives. Certificates
representing the Option Shares in definitive form and in such denominations and
registered in such names as you have set forth in your notice of option
exercise, will be made available for checking and packaging not later than 10:30
a.m., Central time, on the business day next preceding the Second Closing Date
at the office of U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx Tower, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable.
(c) It is understood that you, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter for the Securities to
be purchased by such Underwriter. Any such payment by you shall not relieve any
such Underwriter of any of its obligations hereunder. Nothing herein contained
shall constitute any of the Underwriters an unincorporated association or
partner with the Company.
4. Covenants.
(a) The Company and Antigenics L.L.C. covenant and agree with
the several Underwriters as follows:
(i) If the Registration Statement has not already been
declared effective by the Commission, the Company will use its best
efforts to cause the Registration Statement and any post-effective
amendments thereto to become effective as promptly as possible; the
Company will notify you promptly of the time when the Registration
Statement or any post-effective amendment to the Registration Statement
has become effective or any supplement to the Prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or additional
information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus
(or term sheet within the meaning of Rule 434 of the Rules and
Regulations) containing the information omitted therefrom pursuant to
Rule 430A of the Rules and Regulations with the Commission within the
time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules
and Regulations; if the Company has elected to rely upon Rule 462(b) of
the Rules and Regulations to increase the size of the offering
registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rule 462(b); the Company will
prepare and file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or Prospectus
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) that, in your reasonable opinion, may be necessary or
advisable in connection with the distribution of the Securities by the
Underwriters; and the Company will not file any amendment or supplement
to the Registration Statement or
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Prospectus (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) to which you shall reasonably object by
notice to the Company after having been furnished a copy a reasonable
time prior to the filing.
(ii) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose; and
the Company will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(iii) Within the time during which a prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
relating to the Securities is required to be delivered under the Act,
the Company will comply as far as it is able with all requirements
imposed upon it by the Act, as now and hereafter amended, and by the
Rules and Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in the
Securities as contemplated by the provisions hereof and the Prospectus.
If during such period any event occurs as a result of which the
Prospectus would include an 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 then existing, not misleading, or if
during such period it is necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act, the Company will
promptly notify you and will amend the Registration Statement or
supplement the Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as
you reasonably designate and to continue such qualifications in effect
so long as required for the distribution of the Securities, except that
the Company shall not be required in connection therewith to qualify as
a foreign corporation or to execute a general consent to service of
process in any state.
(v) The Company will furnish to the Underwriters copies of the
Registration Statement (two of which will be signed and will include
all exhibits), each Preliminary Prospectus, the Prospectus, and all
amendments and supplements (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) to such documents, in each
case as soon as available and in such quantities as you may from time
to time reasonably request.
(vi) During a period of five years commencing with the date
hereof, the Company will furnish to the Representatives, and to each
Underwriter who may so request in writing, copies of all periodic and
special reports furnished to the stockholders of the Company and
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all information, documents and reports filed with the Commission, the
National Association of Securities Dealers, Inc., NASDAQ or any
securities exchange.
(vii) The Company will make generally available to its
security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company's current fiscal quarter,
an earnings statement (which need not be audited) covering a 12-month
period beginning after the effective date of the Registration Statement
that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Rules and Regulations.
(viii) The Company and Antigenics L.L.C., whether or not the
transactions contemplated hereunder are consummated or this Agreement
is prevented from becoming effective under the provisions of Section
9(a) hereof or is terminated, will pay or cause to be paid (A) all
expenses (including transfer taxes allocated to the respective
transferees) incurred in connection with the delivery to the
Underwriters of the Securities, (B) all expenses and fees (including,
without limitation, fees and expenses of the Company's accountants and
counsel but, except as otherwise provided below, not including fees of
the Underwriters' counsel) in connection with the preparation,
printing, filing, delivery, and shipping of the Registration Statement
(including the financial statements therein and all amendments,
schedules, and exhibits thereto), the Securities, each Preliminary
Prospectus, the Prospectus, and any amendment thereof or supplement
thereto, and the printing, delivery, and shipping of this Agreement and
other underwriting documents, (C) all filing fees and fees and
disbursements of the Underwriters' counsel incurred in connection with
the qualification of the Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the
states and other jurisdictions which you shall designate in accordance
with Section 4(a)(iv) hereof, (D) the fees and expenses of any transfer
agent or registrar, (E) the filing fees and other fees and expenses
(including, without limitation, the reasonable fees and disbursements
of the Underwriters' counsel) incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities, (F) listing fees, if any, (G) all fees and
disbursements of special or local counsel incurred by the Underwriters
in connection with the Directed Share Program and stamp duties, similar
taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program and (H) all other costs and
expenses incident to the performance of their obligations hereunder
that are not otherwise specifically provided for herein. If the sale of
the Securities provided for herein is not consummated by reason of
action by the Company pursuant to Section 9(a) hereof which prevents
this Agreement from becoming effective, or by reason of any failure,
refusal or inability on the part of the Company or Antigenics L.L.C. to
perform any agreement on their part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to
be fulfilled by the Company is not fulfilled, the Company and
Antigenics L.L.C. will reimburse the several Underwriters for all
reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection
with their investigation, preparing to market and marketing the
Securities or in contemplation of performing their obligations
hereunder. Neither the Company nor Antigenics L.L.C. shall
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in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this Agreement.
(ix) The Company will apply the net proceeds from the sale of
the Securities to be sold by it hereunder for the purposes set forth in
the Prospectus and will file such reports or provide such information
to the Commission with respect to the sale of the Securities and the
application of the proceeds therefrom as may be required in accordance
with Rule 463 of the Rules and Regulations.
(x) Neither the Company nor Antigenics L.L.C. will, without
your prior written consent, offer for sale, sell, contract to sell,
grant any option for the sale of or otherwise issue or dispose of any
Common Stock or any securities convertible into (as a result of the
Merger or otherwise) or exchangeable for, or any options or rights to
purchase or acquire, Common Stock, except (i) for the sale by the
Company of the Securities to the Underwriters pursuant to this
Agreement, (ii) for the issuance by the Company of shares of Common
Stock pursuant to the Merger Agreement, (iii) for 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
of which the Underwriters have been advised in writing, (iv) for the
grant by the Company of any option or right to purchase up to an
aggregate of [ ] shares of Common Stock pursuant to the Company's 1999
Equity Incentive Plan or 1999 Employee Stock Purchase Plan, each as in
effect on the date of this Agreement; provided that no such options or
rights shall be exercisable prior to the expiration of the 365-day
period referred to in this Section, and (v) for the issuance by the
Company of shares of Common Stock in connection with a merger with or
acquisition of a corporation or entity that is not an affiliate of the
Company or an acquisition of the assets or property of a corporation or
entity that is not an affiliate of the Company, for a period of 365
days after the commencement of the public offering of the Securities by
the Underwriters.
(xi) The Company and Antigenics L.L.C. either have caused to
be delivered to you or will cause to be delivered to you prior to the
effective date of the Registration Statement a letter from each of
Antigenics L.L.C.'s directors and officers and the equityholders listed
on Schedule II, substantially in the form of Exhibit A hereto, stating
that such person agrees that he or she will not, without your prior
written consent, offer for sale, sell, contract to sell or otherwise
dispose of any shares of Common Stock, equity interests in Antigenics
L.L.C. or rights to purchase Common Stock or equity interests in
Antigenics L.L.C. for a period of 365 days after commencement of the
public offering of the Securities by the Underwriters.
(xii) Neither the Company nor Antigenics L.L.C. has taken nor
will take, directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in, or which has
constituted, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, and has not effected any sales of equity interests or
Common Stock which are required to be disclosed in response to
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Item 701 of Regulation S-K under the Act which have not been so
disclosed in the Registration Statement.
(xiii) Neither the Company nor Antigenics L.L.C. will incur
any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xiv) That in connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to the
extent required by the NASD or the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
Xxxxx Xxxxxxx will notify the Company as to which Participants will
need to be so restricted. The Company will direct the transfer agent to
place stop transfer restrictions upon such securities for such period
of time.
(xv) To comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed
Share Program.
5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy, as of the date
hereof and at each of the First Closing Date and the Second Closing Date (as if
made at such Closing Date), of and compliance with all representations,
warranties and agreements of the Company and Antigenics L.L.C. contained herein,
to the performance by the Company and Antigenics L.L.C. of their respective
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m., Central time (and any registration statement pursuant to
Rule 462(b) shall have become effective not later than 10 p.m., Central time),
on the date of this Agreement, or such later time and date as you, as
Representatives of the several Underwriters, shall approve and all filings
required by Rules 424, 430A and 434 of the Rules and Regulations shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement or any amendment thereof shall have been issued; no proceedings for
the issuance of such an order shall have been initiated or threatened; and any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), contains an untrue statement of fact which, in your reasonable
opinion, is material, or omits to state a fact which, in your reasonable
opinion, is material and is required to be stated therein or necessary to make
the statements therein not misleading.
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(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, none of the Company, Antigenics L.L.C. or its
subsidiary shall have incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the equity capital or capital
stock (other than a change in the number of outstanding shares of Common Stock
or members' equity units of Antigenics L.L.C. due to the issuance of shares or
units upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt of the Company or Antigenics L.L.C.,
or any issuance of options, warrants, convertible securities or other rights to
purchase the equity capital or capital stock of the Company, Antigenics L.L.C.
or its subsidiary, or any material adverse change or any development involving a
prospective material adverse change (whether or not arising in the ordinary
course of business), in the general affairs, condition (financial or otherwise),
business, key personnel, property, prospects, net worth or results of operations
of the Company or Antigenics L.L.C. and its subsidiary, taken as a whole, that,
in your judgment, makes it impractical or inadvisable to offer or deliver the
Securities on the terms and in the manner contemplated in the Prospectus.
(d) On each Closing Date, there shall have been furnished to
you, as Representatives of the several Underwriters, the opinion of Xxxxxx &
Dodge LLP, counsel for the Company, dated such Closing Date and addressed to
you, to the effect that:
(i) Each of the Company, Antigenics L.L.C. and its subsidiary
has been duly organized and is validly existing as a corporation or
limited liability company, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or organization. Each of
the Company, Antigenics L.L.C. and its subsidiary has full corporate
power and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which it owns or leases real property or in which the conduct of its
business makes such qualification necessary and in which the failure to
so qualify would have a material adverse effect upon the business,
condition (financial or otherwise) or properties of the Company or
Antigenics L.L.C. and its subsidiary, taken as a whole.
(ii) The capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus under
the caption "Description of Capital Stock." All of the issued and
outstanding shares of the capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable, and
the holders thereof are not subject to personal liability by reason of
being such holders. The Securities to be issued and sold by the Company
hereunder have been duly authorized and, when issued, delivered and
paid for in accordance with the terms of this Agreement, will have been
validly issued and will be fully paid and nonassessable, and the
holders thereof will not be subject to personal liability by reason of
being such holders. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or other
rights to
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subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's
charter, by-laws or any agreement or other instrument known to such
counsel to which the Company is a party or by which the Company is
bound. Except as described in the Registration Statement and the
Prospectus, to the best of such counsel's knowledge, neither the filing
of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any shares of Common Stock or
other securities of the Company.
(iii) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or, to
the knowledge of such counsel, threatened by the Commission.
(iv) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents are accurate and fairly present the information
required to be shown in all material respects; and such counsel does
not know of any statutes or legal or governmental proceedings required
to be described in the Prospectus that are not described as required in
all material respects, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
included as exhibits to the Registration Statement that are not
described or included as required.
(v) Each of the Company and Antigenics L.L.C. has full
corporate power and authority to enter into this Agreement, and this
Agreement has been duly authorized, executed and delivered by each of
the Company and Antigenics L.L.C. and constitutes a valid, legal and
binding obligation of the Company and Antigenics L.L.C. enforceable in
accordance with its terms (except as rights to indemnity hereunder may
be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject
to general principles of equity); the execution, delivery and
performance of this Agreement and the consummation of the transactions
herein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule or regulation, any agreement or instrument known to such
counsel to which the Company or Antigenics L.L.C. is a party or by
which either of them is bound or to which any of their respective
property is subject, the Company's or Antigenics L.L.C.'s charter or
by-laws or similar organizational documents, or any order or decree
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or Antigenics L.L.C. or any of
their respective properties; and no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or for the consummation of the transactions contemplated hereby,
including the issuance or sale of the
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Securities by the Company, except such as may be required under the Act
or state securities laws.
(vi) To the best of such counsel's knowledge, none the
Company, Antigenics L.L.C. or its subsidiary is in violation of its
respective charter or by-laws or other organizational documents. To the
best of such counsel's knowledge, none of the Company, Antigenics
L.L.C. or its subsidiary is in breach of or otherwise in default in the
performance of any material obligation, agreement or condition
contained in any bond, debenture, note, indenture, loan agreement or
any other material contract, lease or other instrument to which it is
subject or by which any of them may be bound, or to which any of the
material property or assets of the Company, Antigenics L.L.C. or its
subsidiary is subject.
(vii) Neither Antigenics L.L.C. nor the Company is and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Registration
Statement and the Prospectus, the Company will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(viii) The Merger Agreement dated as of __________, 2000,
between the Company and Antigenics L.L.C. has been duly authorized,
executed and delivered by each of the parties thereto and constitutes a
legal valid and binding obligation of each of the parties thereto
enforceable in accordance with its terms (except as such enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
rights of creditors generally and subject to general principles of
equity).
(ix) The Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), comply as
to form in all material respects with the requirements of the Act and
the Rules and Regulations; and on the basis of conferences with
officers of the Company, examination of documents referred to in the
Registration Statement and Prospectus and such other procedures as such
counsel deemed appropriate, nothing has come to the attention of such
counsel that causes such counsel to believe that the Registration
Statement or any amendment thereof, at the time the Registration
Statement became effective and as of such Closing Date (including any
Registration Statement filed under Rule 462(b) of the Rules and
Regulations), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of its date and as of such Closing Date), as amended or
supplemented, includes any untrue statement of material fact or omits
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
it being understood that such counsel need express no opinion as to the
financial statements or other financial data included in any of the
documents mentioned in this clause.
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(x) The offering, sale and delivery of members' equity units
and warrants by Antigenics L.L.C. completed in November 1999 was exempt
from the registration requirements of the Securities Act.
In rendering such opinion such counsel may rely (i) as to matters of
law other than the Delaware General Corporation Law and federal law, upon the
opinion or opinions of local counsel provided that the extent of such reliance
is specified in such opinion and that such counsel shall state that such opinion
or opinions of local counsel are satisfactory to them and that they believe they
and you are justified in relying thereon and (ii) as to matters of fact, to the
extent such counsel deems reasonable upon certificates of officers of the
Company, Antigenics L.L.C. and its subsidiary provided that the extent of such
reliance is specified in such opinion.
(e) On each Closing Date, there shall have been furnished to
you, as Representatives of the several Underwriters, the opinion of Xxxxxx &
Xxxxxxx, special patent counsel for the Company and Antigenics L.L.C., dated
such Closing Date and addressed to you, to the effect that:
(i) The statements made in the Registration Statement and the
Prospectus under the captions "Risk Factors--Risks Related to Our
Business--If we are unable to protect our proprietary technology, trade
secrets or know-how, we may not be able to operate our business
profitably and "Business--Our Intellectual Property Portfolio"
(collectively, the "Patent Sections") insofar as such statements
constitute a summary of statutes, regulations, rules, legal matters,
documents or proceedings referred to therein, fairly present the
information set forth therein with respect to such statutes,
regulations, rules, legal matters, documents or proceedings.
(ii) Except as described in the Registration Statement and the
Prospectus and except for patent applications pending, there are no
legal or governmental proceedings relating to patent rights of the
Company to which the Company is a party, and to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or others.
(iii) Except as described in the Registration Statement and
the Prospectus, to the knowledge of such counsel, the Company has not
received any communications in which it is alleged that the Company is
infringing or violating the patents or other intellectual property
rights of third parties.
(iv) Nothing has come to the attention of such counsel that
causes such counsel to believe that the Patent Sections in (A) the
Registration Statement or any amendment thereof, at the time the
Registration Statement became effective and as of such Closing Date
(including any Registration Statement filed under Rule 462(b) of the
Rules and Regulations), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
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(B) the Prospectus (as of its date and as of such Closing Date) as
amended or supplemented, included any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(f) On each Closing Date, there shall have been furnished to
you, as Representatives of the several Underwriters, the opinion of Venable,
Baetjer, Xxxxxx & Civiletti, LLP, special regulatory counsel for the Company and
Antigenics L.L.C., dated such Closing Date and addressed to you, to the effect
that:
(i) The statements made in the Registration Statement and the
Prospectus under the captions "Risk Factors--Risks Related to Our
Business--We do not currently generate any revenue, and we cannot
guarantee that we will ever commercialize any of our immunotheraputics
and generate revenue in the future," "-- Delays in obtaining regulatory
approval of our manufacturing facility and disruptions in our
manufacturing process may cause delays in our commercialization
efforts" and "Business--Regulatory Considerations" (collectively, the
"Regulatory Sections") insofar as such statements constitute a summary
of statutes, regulations, rules, legal matters, documents or
proceedings referred to therein, are accurate summaries and fairly
present the information set forth therein with respect to such
statutes, regulations, rules, legal matters, documents or proceedings.
(ii) Nothing has come to the attention of such counsel that
causes such counsel to believe that the Regulatory Sections in (A) the
Registration Statement or any amendment thereof, at the time the
Registration Statement became effective and as of such Closing Date
(including any Registration Statement filed under Rule 462(b) of the
Rules and Regulations), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
(B) the Prospectus (as of its date and as of such Closing Date) as
amended or supplemented, included any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(g) On each Closing Date, there shall have been furnished to
you, as Representatives of the several Underwriters, such opinion or opinions
from Shearman & Sterling, counsel for the several Underwriters, dated such
Closing Date and addressed to you, with respect to the due incorporation of the
Company, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as you reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(h) On each Closing Date you, as Representatives of the
several Underwriters, shall have received a letter of KPMG LLP, dated such
Closing Date and addressed to you, confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualifications of accountants under
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Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of
such letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than three days prior to the date of such
letter), the conclusions and findings of said firm with respect to the financial
information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and the effect of the letter
so to be delivered on such Closing Date shall be to confirm the conclusions and
findings set forth in such prior letter.
(i) On each Closing Date, there shall have been furnished to
you, as Representatives of the Underwriters, a certificate, dated such Closing
Date and addressed to you, signed by the chief executive officer of each of the
Company and Antigenics L.L.C., to the effect that:
(i) The representations and warranties of the Company and
Antigenics L.L.C. in this Agreement are true and correct, in all
material respects, as if made at and as of such Closing Date, and the
Company and Antigenics L.L.C. have complied with all the agreements and
satisfied all the conditions on their part to be performed or satisfied
at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness
of the Registration Statement or any amendment thereof or the
qualification of the Securities for offering or sale has been issued,
and no proceeding for that purpose has been instituted or, to the best
of their knowledge, is contemplated by the Commission or any state or
regulatory body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), and (A) such
documents contain all statements and information required to be
included therein, the Registration Statement, or any amendment thereof,
does not contain any 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 not misleading, and the Prospectus, as
amended or supplemented, does not include any untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth, (C)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, none of the Company,
Antigenics L.L.C. or its subsidiary has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, not in the ordinary course of business, or
declared or paid any dividends or made any distribution of any kind
with respect to its equity capital or capital stock, and except as
disclosed in the Prospectus, there has not been any change in the
equity capital or capital stock (other than a change in the number of
outstanding shares of Common Stock or members' equity units of
Antigenics
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L.L.C. due to the issuance of shares or units upon the exercise of
outstanding options or warrants), or any material change in the
short-term or long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase the equity capital
or capital stock, of the Company, Antigenics L.L.C. or its subsidiary,
or any material adverse change or any development involving a
prospective material adverse change (whether or not arising in the
ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects,
net worth or results of operations of the Company or Antigenics L.L.C.
and its subsidiary, taken as a whole, and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending, or, to
the knowledge of the Company or Antigenics L.L.C., threatened or
contemplated, any action, suit or proceeding to which the Company,
Antigenics L.L.C. or its subsidiary is a party before or by any court
or governmental agency, authority or body, or any arbitrator, which
might result in any material adverse change in the condition (financial
or otherwise), business, prospects or results of operations of the
Company and its subsidiary, taken as a whole.
(j) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and the directors, officers and the
equityholders of Antigenics L.L.C. listed on Schedule II relating to sales and
certain other dispositions of Common Stock or certain other securities,
delivered to you, shall be in full force and effect.
(k) The Common Stock shall have been approved for listing on
the NASDAQ National Market, subject only to official notice of issuance.
(l) The Merger shall have been consummated.
(m) The Company shall have furnished to you and counsel for
the Underwriters such additional documents, certificates and evidence as you or
they may have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and counsel for the Underwriters. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
6. Indemnification and Contribution.
(a) Each of the Company and Antigenics L.L.C., jointly and
severally, agrees to indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company) and Antigenics L.L.C., insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, including the information
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deemed to be a part of the Registration Statement at the time of effectiveness
pursuant to Rules 430A and 434(d) of the Rules and Regulations, if applicable,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that neither the Company nor Antigenics
L.L.C. shall be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company and Antigenics L.L.C. by you, or by any
Underwriter through you, specifically for use in the preparation thereof.
Each of the Company and Antigenics L.L.C., jointly and severally,
agrees to indemnify and hold harmless Xxxxx Xxxxxxx against any losses, claims,
damages or liabilities, joint or several, to which Xxxxx Xxxxxxx may become
subject (including in settlement of any litigation if such settlement is
effected with the written consent of the Company and Antigenics L.L.C.), insofar
as such losses, claims, damages or liabilities (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 prospectus wrapper material
prepared by or with the consent of the Company and Antigenics L.L.C. for
distribution in foreign jurisdictions in connection with the Directed Share
Program attached to the Prospectus or any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, when considered in
conjunction with the Prospectus or any applicable preliminary prospectus, not
misleading; (ii) the failure of any Participant to pay for and accept delivery
of the shares which, immediately following the effectiveness of the Registration
Statement, were subject to a properly confirmed agreement to purchase; or (iii)
relating to, arising out of, or in connection with the Directed Share Program,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, that neither the Company nor
Antigenics L.L.C. shall be responsible under this subparagraph (iii) for any
losses, claim, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of Xxxxx Xxxxxxx.
In addition to its other obligations under this Section 6(a) and
subject to Section 6(c) of this Agreement, each of the Company and Antigenics
L.L.C. agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding in respect of which indemnity
may be sought pursuant to this Section 6(a), it will reimburse each Underwriter
on a monthly basis for all reasonable legal fees or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
or Antigenics L.L.C.'s obligation to reimburse the Underwriters for such
expenses and
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the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriter that
received such payment shall promptly return it to the party that made such
payment, together with interest, compounded daily, determined on the basis of
the prime rate (or other commercial lending rate for borrowers of the highest
credit standing) announced from time to time by ____________________ (the "Prime
Rate"). Any such interim reimbursement payments which are not made to an
Underwriter within 30 days of a request for reimbursement shall bear interest at
the Prime Rate from the date of such request. This indemnity agreement shall be
in addition to any liabilities which the Company or Antigenics L.L.C. may
otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company and Antigenics L.L.C. against any losses, claims, damages or liabilities
to which the Company may become subject, under the Act or otherwise (including
in settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), 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 such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company and Antigenics L.L.C. by you, or by such
Underwriter through you, specifically for use in the preparation thereof, and
will reimburse the Company and Antigenics L.L.C. for any legal or other expenses
reasonably incurred by the Company and Antigenics L.L.C. in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall relieve the indemnifying party from any liability that
it may have to any indemnified party only to the extent the indemnifying party
is materially prejudiced as a result of such omission and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this agreement. In case any such action shall be brought against any indemnified
party, and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of the indemnifying party's election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense
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thereof other than reasonable costs of investigation; provided, however, that
if, due to the fact that named parties to any such proceeding (including any
impleaded parties) include both the indemnifying and indemnified parties, it is
advisable for the Underwriters to be represented as a group by separate counsel
due to actual or potential differing interests between the Underwriters and the
Company and Antigencis L.L.C., the Representatives shall have the right to
employ a single counsel to represent the Representatives and all Underwriters
who may be subject to liability arising from any claim in respect of which
indemnity may be sought by the Underwriters under subsection (a) of this Section
6, in which event the reasonable fees and expenses of such separate counsel
shall be borne by the indemnifying party or parties and reimbursed to the
Underwriters as incurred (in accordance with the provisions of the third
paragraph in subsection (a) above). Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the second paragraph of
Section 6(a) hereof in respect of such action or proceeding, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for Xxxxx Xxxxxxx for the defense of any
losses, claims, damages and liabilities arising out of the Directed Share
Program, and all persons, if any, who control Xxxxx Xxxxxxx within the meaning
of the Act. An indemnifying party shall not be obligated under any settlement
agreement relating to any action under this Section 6 to which it has not agreed
in writing.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and Antigenics L.L.C. on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (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 (i)
above but also the relative fault of the Company and Antigenics L.L.C. on the
one hand and the Underwriters on the other 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 and Antigenics L.L.C. on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault 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' relevant intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The Company, Antigenics L.L.C. and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were to be 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 in the
first sentence of this subsection (d). The amount paid by an indemnified party
as a result of
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the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending against any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and Antigenics L.L.C. under
this Section 6 shall be in addition to any liability which the Company and
Antigenics L.L.C. may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 6
shall be in addition to any liability that the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company and Antigenics L.L.C. (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company and
Antigenics L.L.C. within the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company and Antigenics L.L.C.
herein or in certificates delivered pursuant hereto, and the agreements of the
several Underwriters and the Company and Antigenics L.L.C. contained in Section
6 hereof, 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 the Company, Antigenics L.L.C. or any of their respective officers,
directors, or controlling persons, and shall survive delivery of, and payment
for, the Securities to and by the Underwriters hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter or Underwriters shall fail to take up
and pay for the amount of Firm Shares agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Firm Shares in accordance with
the terms hereof, and the amount of Firm Shares not purchased does not aggregate
more than 10% of the total amount of Firm Shares set forth in Schedule I hereto,
the remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set forth
in Schedule I hereto except as may otherwise be determined by you) the Firm
Shares that the withdrawing or defaulting Underwriters agreed but failed to
purchase.
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(b) If any Underwriter or Underwriters shall fail to take up
and pay for the amount of Firm Shares agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Firm Shares in accordance with
the terms hereof, and the amount of Firm Shares not purchased aggregates more
than 10% of the total amount of Firm Shares set forth in Schedule I hereto, and
arrangements satisfactory to you for the purchase of such Firm Shares by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination neither the Company nor Antigenics L.L.C.
shall be under any liability to any Underwriter (except to the extent provided
in Section 4(a)(viii) and Section 6 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of Firm Shares agreed by
such Underwriter to be purchased hereunder) be under any liability to the
Company or Antigenics L.L.C. (except to the extent provided in Section 6
hereof).
If Firm Shares to which a default relates are to be purchased by the
non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 8.
9. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 a.m.,
Central time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as you in your discretion shall first release the
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as you in your discretion shall first release the
Securities for sale to the public. For the purpose of this Section, the
Securities shall be deemed to have been released for sale to the public upon
release by you of the publication of a newspaper advertisement relating thereto
or upon release by you of telexes offering the Securities for sale to securities
dealers, whichever shall first occur. By giving notice as hereinafter specified
before the time this Agreement becomes effective, you, as Representatives of the
several Underwriters, or the Company may prevent this Agreement from becoming
effective without liability of any party to any other party, except that the
provisions of Section 4(a)(viii) and Section 6 hereof shall at all times be
effective.
(b) You, as Representatives of the several Underwriters, shall
have the right to terminate this Agreement by giving notice as hereinafter
specified at any time at or prior to the First Closing Date, and the option
referred to in Section 3(b), if exercised, may be cancelled at any time prior to
the Second Closing Date, if (i) either the Company or Antigenics L.L.C. shall
have failed, refused or been unable, at or prior to such Closing Date, to
perform any agreement on its part to be performed hereunder in any material
respect, (ii) any other condition of the Underwriters' obligations hereunder in
any material respect is not fulfilled, (iii) trading on the New York Stock
Exchange, the American Stock
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Exchange or the NASDAQ National Market System shall have been wholly suspended,
(iv) 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 Stock
Exchange or the American Stock Exchange, by such Exchange or by order of the
Commission or any other governmental authority having jurisdiction, (v) a
banking moratorium shall have been declared by Federal or New York authorities,
or (vi) there has occurred any material adverse change in the financial markets
in the United States or an outbreak of major hostilities (or an escalation
thereof) in which the United States is involved, a declaration of war by
Congress, any other substantial national or international calamity or any other
event or occurrence of a similar character shall have occurred since the
execution of this Agreement that, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 4(a)(viii) and Section 6
hereof shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company shall be notified promptly by you by telephone or telegram, confirmed by
letter. If the Company elects to prevent this Agreement from becoming effective,
you shall be notified by the Company by telephone or telegram, confirmed by
letter.
10. Default by the Company. If the Company shall fail at the First
Closing Date to sell and deliver the number of Securities which it is obligated
to sell hereunder, then this Agreement shall terminate without any liability on
the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
11. Information Furnished by Underwriters. The statements set forth in
(I) the third paragraph of text under the caption "Underwriting" concerning the
terms of the offering by the Underwriters, (ii) the seventh paragraph of text
under the caption "Underwriting" concerning the terms of the offering by the
Underwriters and (iii) the eighth paragraph of text under the caption
"Underwriting" concerning stabilization and over-allotment in the Prospectus
constitute the written information furnished by or on behalf of the Underwriters
referred to in Section 2 and Section 6 hereof.
12. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing and, if to the Underwriters, shall be mailed or
delivered to the Representatives c/o U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx
Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, except that notices
given to an Underwriter pursuant to Section 6 hereof shall be sent to such
Underwriter at the address stated in the Underwriters' Questionnaire furnished
by such Underwriter in connection with this offering; if to the Company, shall
be mailed or delivered to it at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx; or in each case to such other address as the person to
be notified may have requested in writing. Any party to this Agreement may
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change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
[Signature Page Follows]
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Please sign and return to the Company and Antigenics L.L.C. the
enclosed duplicates of this letter whereupon this letter will become a binding
agreement between the Company, Antigenics L.L.C. and the several Underwriters in
accordance with its terms.
Very truly yours,
ANTIGENICS INC.
By: ______________________
Title:
ANTIGENICS L.L.C.
By: ______________________
Title:
Confirmed as of the date first above mentioned, on behalf of themselves and the
other several Underwriters named in Schedule I hereto.
U.S. BANCORP XXXXX XXXXXXX INC.
By: ____________________________
Title:
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
By: ____________________________
Title:
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SCHEDULE I
Underwriter Number of Firm Shares (1)
----------- -------------------------
U.S. Bancorp Xxxxx Xxxxxxx Inc..................
FleetBoston Xxxxxxxxx Xxxxxxxx Inc..............
---------
Total 3,000,000
=========
-----------------
(1) The Underwriters may purchase up to an additional 450,000 Option
Shares, to the extent the option described in Section 3(b) of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
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SCHEDULE II
[List of Persons Subject to Lock-up]
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EXHIBIT A
[FORM OF LOCK-UP AGREEMENT]
-----------, ----
U.S. Bancorp Xxxxx Xxxxxxx Inc.
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
as Representatives of the several Underwriters
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands that U.S. Bancorp Xxxxx Xxxxxxx
Inc. ("Xxxxx Xxxxxxx") proposes to enter into a Purchase Agreement (the
"Purchase Agreement") with Antigenics, Inc., a Delaware corporation (the
"Company"), and Antigenics L.L.C., a Delaware limited liability company,
providing for the public offering (the "Public Offering") by the several
Underwriters, including Xxxxx Xxxxxxx (the "Underwriters"), of shares of the
Common Stock, par value $0.01 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 Xxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 365 days after the date of the final prospectus
relating to the Public Offering (the "Lock-Up Period"), (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, including any equity interest in Antigenics L.L.C., 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 or
equity interests in Antigenics L.L.C., whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock, equity
interests in Antigenics L.L.C. or such other securities, in cash or otherwise;
provided however, that securities acquired by the undersigned in the November
1999 private placement of Antigencis L.L.C. are not subject to this agreement.
The foregoing sentence shall not apply to (a) if the undersigned is an
individual, he or she may transfer Common Stock or equity interests in
Antigenics L.L.C. during his or her lifetime or upon death by gift, will or
intestacy pursuant to the laws of descent and distribution, (b) transfers to
affiliates (as defined in Regulation C under the Securities Act of 1933, as
amended) of the undersigned, (c) transfers as a distribution to limited
partners, members or shareholders of the
35
undersigned, (d) transfers occurring by operation of law or (e) transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering; provided that any
transferee pursuant to clauses (a), (b), (c) or (d) of this sentence shall
execute a lock-up agreement in substantially the form hereof covering the
remainder of the Lock-Up Period under this Agreement. In addition, the
undersigned agrees that, without the prior written consent of Xxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 365 days after the date of the prospectus relating to the
Public Offering, 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, including any equity interest in
Antigenics L.L.C.
The undersigned confirms that the agreements of the
undersigned are irrevocable and shall be binding upon the undersigned's legal
representatives successors and assigns. The undersigned agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent
against the transfer of any Common Stock held by the undersigned except in
compliance with the terms and conditions of this Agreement. The undersigned also
understands that the Company and the Underwriters will proceed with the Public
Offering in reliance on this Agreement. Notwithstanding anything else herein, in
the event the registration statement relating to the Public Offering is not
declared effective by the Securities and Exchange Commission on or prior to
April 30, 2000, the terms and provisions of this Agreement shall be of no
further force or effect.
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 the Purchase Agreement, the terms of which are subject to
negotiation between the Company, Antigenics L.L.C.
and the Underwriters.
Very truly yours,
(Name)
(Address)
A-II
