Exhibit 1.1
2,000,000 Shares
PROGENICS PHARMACEUTICALS, INC.
Common Stock
UNDERWRITING AGREEMENT
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____________, 1997
CIBC Oppenheimer Corp.
BankAmerica Xxxxxxxxx Xxxxxxxx
Vector Securities International, Inc.
c/o CIBC Oppenheimer Corp.
CIBC Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several Underwriters
named on Schedule I attached hereto
Ladies and Gentlemen:
Progenics Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
proposes to sell to you and the other underwriters named on Schedule I to this
Agreement (the "Underwriters"), for whom you are acting as Representatives, an
aggregate of 2,000,000 shares (the "Firm Shares") of the Company's Common Stock,
$0.0013 par value (the "Common Stock"). In addition, the Company proposes to
grant to the Underwriters an option to purchase up to an additional 300,000
shares (the "Option Shares") of Common Stock from it for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at $_____ per share (the "Initial Price"), the number of Firm
Shares
set forth opposite the name of such Underwriter on Schedule I to this
Agreement.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the Firm
Shares. Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in whole
or in part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and
only once thereafter within 30 days after the date of this Agreement, in
each case upon written or telegraphic notice, or verbal or telephonic
notice confirmed by written or telegraphic notice, by the Representatives
to the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date or at least two business
days before the Option Shares Closing Date (as defined below), as the case
may be, setting forth the number of Option Shares to be purchased and the
time and date (if other than the Firm Shares Closing Date) of such
purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares to
the Representatives for the respective accounts of the Underwriters, and payment
of the purchase price by wire transfer of immediately available funds to the
Company, shall take place at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on
the third business day following the date of this Agreement, or at such time on
such other date, not later than 10 business days after the date of this
Agreement, as shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "Firm Shares Closing
Date").
In the event the option with respect to the Option Shares is exercised,
delivery by the Company of the Option Shares to the Representatives for the
respective accounts of the Underwriters and payment of the purchase price by
wire transfer of immediately available funds to the Company shall take place at
the offices of Xxxxx Xxxxxxxxxx LLP specified above at the time and on the date
(which may be the same date as, but in no event shall be earlier than, the Firm
Shares Closing Date) specified in the notice referred to in Section 1(b) (such
time and date of delivery and payment are called the "Option Shares Closing
Date"). The Firm Shares Closing Date and the Option Shares Closing Date are
called, individually, a "Closing Date" and, together, the "Closing Dates."
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Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representatives shall request at least two
full business days before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the option as described in Section
1(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS: PUBLIC OFFERING. The Company
has prepared in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the published rules and regulations
thereunder (the "Rules") adopted by the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-13627), including a
preliminary prospectus relating to the Shares, and has filed with the Commission
the Registration Statement (as hereinafter defined) and such amendments thereof
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The term "preliminary prospectus" means any preliminary prospectus (as described
in Rule 430 of the Rules) included at any time as a part of the Registration
Statement. The Registration Statement as amended at the time and on the date it
becomes effective (the "Effective Date"), including all exhibits and
information, if any, deemed to be part of the Registration Statement pursuant to
Rule 424(b) and Rule 430A of the Rules, together with any registration statement
for the same offering filed by the Company that is to be effective upon filing
pursuant to Rule 462(b) of the Securities Act, is called the "Registration
Statement." The term "Prospectus" means the prospectus in the form first used to
confirm sales of the Shares (whether such prospectus was included in the
Registration Statement at the time of effectiveness or was subsequently filed
with the Commission pursuant to Rule 424(b) of the Rules).
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Underwriter as follows:
(a) On the Effective Date the Registration Statement complied, and on
the date of the Prospectus, on the date any post-effective amendment to the
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Registration Statement shall become effective, on the date any supplement
or amendment to the Prospectus is filed with the Commission and on each
Closing Date, the Registration Statement and the Prospectus (and any
amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules; the Registration Statement did not, as of the Effective Date,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and on the other dates referred to
above neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue statement
of a material fact or will omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. When any related preliminary prospectus was first filed with
the Commission (whether filed as part of the Registration Statement or any
amendment thereto or pursuant to Rule 424(a) of the Rules) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus as amended or supplemented complied
in all material respects with the applicable provisions of the Securities
Act and the Rules and did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
Notwithstanding the foregoing, the Company makes no representation or
warranty as to the last paragraph on the cover page of the Prospectus, the
paragraph with respect to stabilization on the inside front cover page of
the Prospectus, the concession and reallowance figures appearing under the
caption "Underwriting" in the Prospectus, the last sentence of the third
full paragraph under the caption "Underwriting" in the Prospectus regarding
the exercise of discretionary authority by the Underwriters or the sixth
paragraph under the caption "Underwriting" in the Prospectus. The Company
acknowledges that the statements referred to in the previous sentence
constitute the only information furnished in writing by the Representatives
on behalf of the Underwriters specifically for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus.
(b) The financial statements of the Company (including all notes and
schedules thereto) included in the Registration Statement and Prospectus
present fairly the financial position, results of operations and cash flows
and the stockholders' equity and the other financial information of the
Company included therein at the respective dates and for the respective
periods to which they apply; and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such periods have been
made; PROVIDED, HOWEVER, that the interim financial statements contained in
the Registration Statement and
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Prospectus shall be subject to normal year-end adjustments in accordance
with generally accepted accounting principles.
(c) Coopers & Xxxxxxx L.L.P., whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public accountants as
required by the Securities Act and the Rules.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
The Company has no subsidiaries and does not control, directly or
indirectly, any corporation, partnership, joint venture, association or
business. The Company is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of its
assets or properties (owned, leased or licensed) or the nature of its
business makes such qualification necessary except for such jurisdictions
where the failure to so qualify would not have a material adverse effect on
the assets or properties, business, results of operations or financial
condition of the Company. Except as disclosed in the Registration
Statement and the Prospectus, the Company does not own, lease or license
any asset or property or conduct any business outside the United States of
America. The Company has all requisite corporate power and authority, and
all necessary authorizations, approvals, consents, orders, licenses,
certificates and permits of and from all governmental or regulatory bodies
or any other person or entity, to own, lease and license its assets and
properties and conduct its businesses as now being conducted and as
described in the Registration Statement and the Prospectus except for such
authorizations, approvals, consents, orders, material licenses,
certificates and permits the failure to so obtain would not have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company;
no such authorization, approval, consent, order, license, certificate or
permit contains a materially burdensome restriction other than as disclosed
in the Registration Statement and the Prospectus; and the Company has all
such corporate power and authority, and such authorizations, approvals,
consents, orders, licenses, certificates and permits to enter into, deliver
and perform this Agreement and to issue and sell the Shares (except as may
be required under state and foreign Blue Sky laws). To the Company's
knowledge, all of the properties now or formerly owned or leased by the
Company, all research and manufacturing operations conducted thereon
(including discharges and emissions therefrom) and all research and
manufacturing equipment now or formerly used at said properties, have been
and are in compliance with all Federal, state, local and foreign statutes,
ordinances, regulations, rules and standards concerning or relating to
industrial hygiene and the protection of health, safety, welfare and the
environment (collectively, "the Environmental Laws"), except to the extent
that
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any failure to be in compliance, singly or in the aggregate, would not have
a material adverse effect upon the assets or properties, business, results
of operations, prospects or condition (financial or otherwise) of the
Company. The Company has not received notice, and does not have knowledge,
of any claim, demand, investigation, regulatory action, suit or other
action instituted or threatened against it or said property relating to any
of the Environmental Laws.
(e) The Company has filed with the U.S. Food and Drug Administration
(the "FDA"), and all applicable foreign, state and local regulatory bodies
for, and received approval of, all registrations, applications, licenses,
requests for exemptions, permits and other regulatory authorizations
material to the conduct of the Company's business as it is now conducted;
the Company is in compliance in all material respects with all such
registrations, applications, licenses, requests for exemptions, permits and
other regulatory authorizations, and all applicable FDA, foreign, state and
local rules and regulations; the Company has no reason to believe that any
party granting any such registration, application, license, request for
exemption, permit or other authorization is considering limiting,
suspending or revoking the same.
(f) The human clinical trials, animal studies and other preclinical
tests conducted by the Company or in which the Company has participated
that are described in the Registration Statement and Prospectus or the
results of which are referred to in the Registration Statement or
Prospectus, and such studies and tests conducted on behalf of the Company
(including but not limited to studies and tests conducted under
institutional INDs filed by Memorial Xxxxx-Xxxxxxxxx Cancer Center
("Xxxxx-Xxxxxxxxx"), were and, if still pending, are being conducted in all
material respects in accordance with experimental protocols, procedures and
controls generally used by qualified experts in the preclinical or clinical
study of products comparable to those being developed by the Company; the
descriptions of the results of such studies, tests and trials contained in
the Registration Statement and Prospectus are accurate and complete in all
material respects, and the Company has no knowledge of any other trials,
studies or tests, the results of which reasonably call into question the
results described or referred to in the Registration Statement and
Prospectus; the Company has not received any notices or correspondence from
the FDA or any other governmental agency requiring the termination,
suspension or modification (other than such modifications as are normal in
the regulatory process) of any animal studies, preclinical tests or
clinical trials conducted by or on behalf of the Company (including but not
limited to studies and tests conducted under institutional INDs filed by
Xxxxx-Xxxxxxxxx) or in which the Company has participated that are
described in the Registration Statement or Prospectus or the results of
which are referred to in the Registration Statement or Prospectus.
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(g) The Company owns or possesses adequate and enforceable rights to
use all patents, patent applications, trademarks, trademark applications,
trade names, service marks, copyrights, copyright applications, licenses,
know-how, proprietary techniques, including processes and substances, and
other similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business as described in
the Registration Statement and the Prospectus. The Company has not
received any notice of, and to its best knowledge is not aware of, any
infringement of or conflict with asserted rights of others with respect to
any Intangibles which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect upon the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company. The
Company is not aware of any infringement of any of the Company's
Intangibles by any third party which could have a material adverse effect
upon the assets or properties, business, results of operations, prospects
or condition (financial or otherwise) of the Company.
(h) The Company has good title to each of the items of personal
property which are reflected in the financial statements referred to in
Section 4(c) or are referred to in the Registration Statement and the
Prospectus as being owned by it and valid and enforceable leasehold
interests in each of the items of real and personal property which are
referred to in the Registration Statement and the Prospectus as being
leased by it, in each case free and clear of all liens, encumbrances,
claims, security interests and defects (collectively, "Liens"), except as
described in the Registration Statement and the Prospectus and except to
the extent that the failure to have such good title or the existence of any
such Lien does not and will not have a material adverse effect upon the
assets or properties, business, results of operations or financial
condition of the Company.
(i) There is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board
pending or, to the Company's best knowledge, threatened (and the Company
does not know of any reasonable basis therefor) against, or involving the
assets, properties or business of, the Company which, if determined
adversely to the Company, would materially adversely affect the value or
the operation of any such assets or properties or the business, results of
operations, prospects or condition (financial or otherwise) of the Company.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, (i) there has not been any material adverse change in the assets
or properties, business, results of operations, prospects or condition
(financial or
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otherwise), of the Company, whether or not arising from transactions in the
ordinary course of business; (ii) the Company has not sustained any
material loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action, order or decree; and
(iii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, except as reflected in the
Registration Statement or the Prospectus, the Company has not (a) issued
any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations
incurred in the ordinary course of business, (b) entered into any
transaction not in the ordinary course of business or (c) declared or paid
any dividend or made any distribution on any shares of its stock or
redeemed, purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its stock.
(k) There is no document or contract of a character required by the
Securities Act or the Rules to be described in the Registration Statement
or Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required. Each agreement listed in the
exhibits to the Registration Statement is in full force and effect and is
valid and enforceable by and against the Company in accordance with its
terms, assuming the due authorization, execution and delivery thereof by
each of the other parties thereto. Neither the Company, nor, to the best
of the Company's knowledge, any other party is in default in the observance
or performance of any term or obligation to be performed by it under any
such agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case which
default or event would have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company. No default exists, and no event
has occurred which with notice or lapse of time or both would constitute a
default, in the due performance and observance of any term, covenant or
condition, by the Company of any other agreement or instrument to which the
Company is a party or by which it or its properties or business may be
bound or affected which default or event would have a material adverse
effect on the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company.
(l) The Company is not in violation of any term or provision of its
charter or by-laws or of any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such
violation would have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial or
otherwise) of the Company.
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(m) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company
of the Shares) will give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or assets
of the Company pursuant to the terms of, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party or
by which it or any of its properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation applicable to the Company or violate any provision of the
charter or by-laws of the Company, except to the extent that the Company
has obtained consents or waivers which are in full force and effect.
(n) The Company has an authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus. All of the
outstanding shares of Common Stock have been duly and validly issued and
are fully paid and nonassessable and none of them was issued in violation
of any preemptive right, right of first refusal or first offer or other
similar right. The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued, fully paid and nonassessable
and none of them will be issued in violation of any preemptive or other
similar right. Except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right calling
for the issuance of, and there is no commitment or binding plan or
arrangement to issue, any share of stock of the Company or any security
convertible into, or exercisable or exchangeable for, such stock. The
Common Stock and the Shares conform in all material respects to all
statements in relation thereto contained in the Registration Statement and
the Prospectus.
(o) No holder of any security of the Company has the right to have
any security owned by such holder included in the Registration Statement or
to demand registration of any security owned by such holder during the
period ending 180 days after the date of this Agreement. Each of the
directors and executive officers of the Company, and other stockholders of
the Company who beneficially own, in the aggregate, __________ shares of
Common Stock (including shares issuable upon exercise of outstanding
options and warrants) (the "Locked-up Holders") either have agreed with the
Company or delivered to the Representatives his written agreement that he
will not, for a period of 180 days after the date of this Agreement, offer
for sale, sell, distribute, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, or
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exercise any registration rights with respect to, any shares of Common
Stock (or any securities convertible into, exercisable for, or exchangeable
for any shares of Common Stock) owned by him, without the prior written
consent of CIBC Xxxxxxxxxxx Corp. ("Oppenheimer"). Oppenheimer agrees to
notify BankAmerica Xxxxxxxxx Xxxxxxxx and Vector Securities International,
Inc. of its intention to consent to any of the transactions prohibited by
this paragraph.
(p) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares by the Company. This
Agreement has been duly and validly authorized, executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except (A) as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and (B) to the extent that rights to indemnity or contribution
under this Agreement may be limited by Federal and state securities laws or
the public policy underlying such laws.
(q) The Company is not involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute
would have a material adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company.
(r) No transaction has occurred between or among the Company and any
of its officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of the Shares.
(t) The Company has filed all Federal, state, local and foreign tax
returns which are required to be filed by it through the date hereof, or
has received extensions thereof, and has paid all taxes shown on such
returns and all assessments received by it to the extent that the same are
material and have become due.
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(u) The Shares have been duly authorized for quotation on Nasdaq
National Market.
(v) The Company has complied with all of the applicable requirements
and filed any forms required by Florida Statutes Section 517.075.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(A)(a) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
(c) The representations and warranties of the Company contained in
this Agreement and in the certificates delivered pursuant to Section 5(d)
shall be true and correct when made and on and as of each Closing Date as
if made on such date and the Company shall have performed all covenants and
agreements and satisfied all the conditions contained in this Agreement
required to be performed or satisfied by it at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received on the Effective Date, at
the time this Agreement is executed and on each Closing Date a signed
letter
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from Coopers & Xxxxxxx L.L.P. addressed to the Representatives and dated,
respectively, the Effective Date, the date of this Agreement and each such
Closing Date, in form and substance reasonably satisfactory to the
Representatives.
(f) The Representatives shall have received on each Closing Date from
Xxxxx Xxxxxxxxxx LLP, counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware. The Company is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character or
location of its assets or properties (owned, leased or licensed) or
the nature of its businesses makes such qualification necessary,
except for such jurisdictions where the failure to so qualify would
not have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial or
otherwise) of the Company.
(ii) The Company has all requisite corporate power and authority
to own, lease and license its assets and properties and conduct its
business as described in the Registration Statement and the
Prospectus; and the Company has all requisite corporate power and
authority to enter into, deliver and perform this Agreement and to
issue and sell the Shares.
(iii) The authorized and issued capital stock of the Company is
as set forth in the Registration Statement and the Prospectus; the
certificates evidencing the Shares are in due and proper legal form
and have been duly authorized for issuance by the Company; all of the
outstanding shares of Common Stock of the Company have been duly and
validly authorized and have been duly and validly issued and are fully
paid and nonassessable and none of them was issued in violation of any
preemptive right, right of first refusal or first offer or other
similar right set forth in the Company's Certificate of Incorporation,
as amended, or in certain agreements specified in such opinion or as
provided by the Delaware General Corporation Law (with such exceptions
as may be acceptable to the Representatives), except for those
violations which have since been validly waived. The Shares when
issued and sold pursuant to this Agreement will be duly and validly
issued, outstanding, fully paid and nonassessable and none of them
will have been issued in violation of any preemptive right, right of
first refusal or first offer or other similar right set forth in the
Company's
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Certificate of Incorporation, as amended, or in certain agreements
specified in such opinion or as provided by the Delaware General
Corporation Law (with such exceptions as may be acceptable to the
Representatives). To such counsel's knowledge, except as disclosed in
the Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and no
commitment or binding plan or arrangement to issue, any share of stock
of the Company or any security convertible into, exercisable for, or
exchangeable for stock of the Company. The Common Stock and the
Shares conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(iv) To such counsel's knowledge, no holder of any security of
the Company has the right to have any security owned by such holder
included in the Registration Statement or, except as described in the
Registration Statement, to demand registration of any security during
the period ending 180 days after the Effective Date, except for those
rights which have been validly waived.
(v) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares.
This Agreement has been duly and validly authorized, executed and
delivered by the Company.
(vi) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with notice
or lapse of time, or both, would constitute a default) under, or
require consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or
assets of the Company pursuant to the terms of any indenture,
mortgage, deed of trust, note or other agreement or instrument known
to such counsel and to which the Company is a party or by which it or
any of its properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation
known to such counsel or violate any provision of the Certificate of
Incorporation, as amended, or by-laws of the Company.
-13-
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the performance of this
Agreement by the Company or the consummation of the transactions
contemplated hereby, including without limitation the sale of the
Shares, except such as have been obtained under the Securities Act and
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
several Underwriters.
(viii) To such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation, before any court or
before or by any public body or board pending or threatened against,
or involving the assets, properties or businesses of, the Company
which, if determined adversely to the Company, would have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company.
(ix) The statements in the Prospectus under the captions "Risk
Factors - Need to Establish Collaborative Commercial Relationships;
Dependence on Partners"; "Risk Factors - Availability of Materials";
"Risk Factors - Dependence on Third Parties;" "Risk Factors - Control
by Existing Stockholders; Anti-Takeover Provisions"; "Risk Factors -
Future Sales of Common Stock; Registration Rights; Possible Adverse
Effect on Future Market Price"; "Business - Licenses"; "Business - BMS
Collaboration"; "Business - Government Grants and Contracts";
"Business -- Patents and Proprietary Technology" (to the extent such
section describes the Columbia License Agreement (as defined below),
the Xxxxx-Xxxxxxxxx License Agreement (as defined below) and the
patents and patent applications licensed to the Company thereby);
"Certain Transactions"; "Description of Capital Stock"; and "Shares
Eligible for Future Sale", insofar as such statements constitute a
summary of documents referred to therein or matters of law, are fair
summaries in all material respects and accurately present in all
material respects the information called for with respect to such
documents and matters. All contracts and other documents known to
such counsel and required by the Securities Act and the Rules to be
filed as exhibits to, or described in, the Registration Statement have
been so filed with the Commission or are fairly described in the
Registration Statement, as the case may be.
(x) The Registration Statement, all preliminary prospectuses and
the Prospectus and each amendment or supplement thereto (except for
the financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need not
express an
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opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Rules.
(xi) The Registration Statement has become effective under the
Securities Act, and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened, pending or contemplated.
(xii) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of (A) the License Agreement dated March 1, 1989, as
amended by a Letter Agreement dated March 1, 1989, and as amended by a
Letter Agreement dated October 22, 1996, between the Company and the
Trustees of Columbia University (the "Columbia License Agreement"),
(B) the License Agreement dated November 17, 1994 between the Company
and Xxxxx-Xxxxxxxxx Institute for Cancer Research (the
"Xxxxx-Xxxxxxxxx License Agreement"), (C) the QS-21 License and Supply
Agreement dated August 31, 1995 between the Company and Aquila
Biopharmaceuticals Inc. (the "Aquila QS-21 License Agreement") and the
gp120 Sublicense Agreement dated March 17, 1995 between the Company
and Aquila Biopharmaceuticals Inc. (the "Aquila gp120 Sublicense
Agreement"), (D) the License Agreement dated June 25, 1996 between the
Company and The Regents of the University of California (the "UCAL
License Agreement") and (E) the Joint Development and Master License
Agreement dated April 15, 1997 between the Company and Xxxxxxx-Xxxxx
Squibb Company, and each of the agreements related thereto or
contemplated thereby (collectively, the "BMS License Agreements").
The Columbia License Agreement, the Xxxxx-Xxxxxxxxx License Agreement,
the Aquila QS-21 License Agreement, the Aquila gp120 Sublicense
Agreement, the UCAL License Agreement and the BMS License Agreements
have been duly and validly executed and delivered by the Company.
(xiii) To such counsel's knowledge, the Company has not received
any notice of infringement or of conflict with asserted rights of
others with respect to any patents, patent applications, licenses or
know-how, proprietary techniques, including processes and substances,
other similar rights and proprietary knowledge relating to the patents
and patent applications licensed to the Company under the Columbia
License Agreement (such patents and patent applications being
collectively referred to herein as the "Columbia Licensed Patents"),
which could result in any material adverse effect upon the Company.
-15-
(xiv) To such counsel's knowledge, there are no legal or
governmental proceedings pending relating to the Columbia Licensed
Patents, other than review of pending applications for patents, and to
such counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or others.
To the extent deemed advisable by such counsel, they may rely as to matters
of fact on certificates of responsible officers of the Company and public
officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States; provided that such counsel shall state
that in their opinion the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the Representatives and representatives of the independent
certified public accountants of the Company, at which conferences the contents
of the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing, no facts have come to
the attention of such counsel which lead such counsel to believe that the
Registration Statement at the time it became effective (except with respect to
the financial statements and notes and schedules thereto and other financial
data, as to which such counsel need express no belief) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus as amended or supplemented (except with respect to the
financial statements and notes and schedules thereto and other financial data,
as to which such counsel need make no statement) on the date thereof contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) The Representatives shall have received on each Closing Date from
Xxxxxx & Xxxxxx LLP, patent counsel for the Company, an opinion addressed to the
Representatives and dated such Closing Date, to the effect that such counsel is
familiar with the technology used by the Company in its business and has read
the portions of the Registration Statement and the Prospectus headed: "Risk
Factors - Dependence on and Uncertainty of Protection of Patents and Proprietary
Rights"; "Business - Licenses" and "Business - Patents and Proprietary
Technology"
-16-
(collectively, the "Technology Portion"), and that, except to the extent that
the following opinions relate to the Company's ganglioside conjugate vaccine
technology and products as to which such counsel provides no opinion:
(i) such counsel has no knowledge of any facts which would preclude
the Company from having clear title to the Company's patents or patent
applications referenced in the Technology Portion. To the best of such
counsel's knowledge, the Company does not lack and will not be unable to
obtain any rights or licenses to use any patent or know-how necessary to
conduct the business now conducted or proposed to be conducted by the
Company as described in the Prospectus, including without limitation the
Company's business relating to HIV receptor technology and products (except
with respect to the Columbia License Agreement and the Columbia Licensed
Patents as to which such counsel need express no opinion). To the best of
such counsel's knowledge, the Company has not received any notice of
infringement or of conflict with asserted rights of others with respect to
any patents, patent applications, trademarks, trademark applications, trade
names, service marks, copyrights, copyright applications, licenses or
know-how, proprietary techniques, including processes and substances, and
other similar rights and proprietary knowledge (except with respect to the
Columbia Licensed Patents as to which such counsel need express no opinion)
which could result in any material adverse effect upon the Company. Such
counsel is not aware of any patents of others (except with respect to the
Columbia Licensed Patents as to which such counsel need express no opinion)
which are infringed by specific products or processes of the Company
referred to in the Prospectus in such manner as to materially and adversely
affect the Company;
(ii) to the best of such counsel's knowledge, there are no legal or
governmental proceedings pending relating to trade secrets, trademarks,
service marks or other proprietary information or materials of the Company
(except with respect to the Columbia Licensed Patents as to which such
counsel need express no opinion), other than review of pending applications
for patents, and to the best of such counsel's knowledge no such
proceedings are threatened or contemplated by governmental authorities or
others;
(iii) such counsel does not know of any material contracts or other
material documents relating to the Company's proprietary information
(except with respect to the Columbia Licensed Patents as to which such
counsel need express no opinion), other than those filed as exhibits to the
Registration Statement; and
(iv) the statements under the captions "Risk Factors - Dependence on
and Uncertainty of Protection of Patents and Proprietary Rights"; "Business
- Licenses" and "Business - Patents and Proprietary Technology" (except
with
-17-
respect to those statements that describe the Columbia License Agreement
and the Columbia Licensed Patents as to which such counsel need express no
opinion), insofar as such statements constitute a summary of documents
referred to therein or matters of law, are accurate summaries and fairly
and correctly present, in all material respects, the information called for
with respect to such documents and matters and such counsel has no reason
to believe that the statements therein are untrue or that there is an
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER,
that such counsel may rely on representations of the Company with respect
to the factual matters contained in such statements, provided that such
counsel shall state that nothing has come to the attention of such counsel
which leads them to believe that such representations are not true and
correct in all material respects.
(h) The Representatives shall have received on each Closing Date from
Wolf, Greenfield & Sacks, P.C., special patent counsel for the Company, an
opinion addressed to the Representatives and dated such Closing Date, to the
effect that such counsel is familiar with the Company's ganglioside conjugate
vaccine technology and products and has read the portions of the Registration
Statement and the Prospectus headed: "Risk Factors - Dependence on and
Uncertainty of Protection of Patents and Proprietary Rights"; "Business -
Licenses" and "Business - Patents and Proprietary Technology" (collectively, the
"Technology Portion"), and that, solely with respect to the Company's
ganglioside conjugate vaccine technology and products (the "Conjugate
Vaccines"):
(i) To the best of such counsel's knowledge, the Company does not
lack and will not be unable to obtain any rights or licenses to use any
patent or know-how necessary to make, use, import, offer for sale and sell
the Company's Conjugate Vaccines described in the Prospectus and as
presently used by the Company or as proposed to be used and sold by the
Company as described in the Prospectus. To the best of such counsel's
knowledge, the Company has not received any notice of infringement or of
conflict with asserted rights of others with respect to any patents, patent
applications, licenses or know-how, proprietary techniques, including
processes and substances, and other similar rights and proprietary
knowledge which could result in any material adverse effect upon the
Company. Such counsel is not aware of any patents of others which are not
licensed by the Company and which are infringed by the Company as a result
of the Company's making, using, importing, offering for sale or selling its
Conjugate Vaccine;
(ii) to the best of such counsel's knowledge, there are no legal or
governmental proceedings pending relating to proprietary information or
materials of the Company, other than review of pending applications for
-18-
patents, and to the best of such counsel's knowledge no such proceedings
are threatened or contemplated by governmental authorities or others; and
(iii) the statements under the captions "Risk Factors - Dependence on
and Uncertainty of Protection of Patents and Proprietary Rights"; "Business
- Licenses" and "Business - Patents and Proprietary Technology", insofar as
such statements constitute a summary of law, are accurate summaries and
fairly and correctly present, in all material respects, the information
called for with respect to such matters and such counsel has no reason to
believe that the statements therein are untrue or that there is an omission
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that such counsel
may rely on representations of the Company with respect to the factual
matters contained in such statements, provided that such counsel shall
state that nothing has come to the attention of such counsel which leads
them to believe that such representations are not true and correct in all
material respects.
(i) The Representatives shall have received on each Closing Date from
Venable, Baetjer, Xxxxxx & Xxxxxxxxx, L.L.P., FDA counsel for the Company, an
opinion addressed to the Representatives and dated such Closing Date, to the
effect that such counsel has read the portions of the Registration Statement and
the Prospectus headed: "Risk Factors - Government Regulation; No Assurance of
Regulatory Approval" and "Business - Government Regulation" (collectively, the
"Regulatory Portion"), that the statements under such captions, insofar as such
statements constitute a summary of matters of law pertaining to the regulation
of the Company's business by the Food and Drug Administration, are accurate
summaries and fairly and correctly present, in all material respects, the
information called for with respect to such matters and such counsel has no
reason to believe that the statements therein are untrue or that there is an
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that such counsel
may rely on representations of the Company with respect to the factual matters
contained in such statements, provided that such counsel shall state that
nothing has come to the attention of such counsel which leads them to believe
that such representations are not true and correct in all material respects.
(j) All proceedings taken in connection with the sale of the Firm Shares
and the Option Shares as herein contemplated shall be reasonably satisfactory in
form and substance to the Representatives and their counsel and the Underwriters
shall have received from Xxxx and Xxxx LLP a favorable opinion, addressed to the
Representatives and dated such Closing Date, with respect to the Shares, the
Registration Statement and the Prospectus, and such other related matters, as
the Representatives may reasonably request, and the Company shall have furnished
to
-19-
Xxxx and Xxxx LLP such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(k) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives, and dated such Closing Date, of
an executive officer of the Company to the effect that the signer of such
certificate has reviewed and understands the provisions of Section 517.075 of
the Florida Statutes, and represents that the Company has complied, and at all
times will comply, with all provisions of Section 517.075 and further, that as
of such Closing Date, neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba.
6. COVENANTS OF THE COMPANY.
(A) The Company covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act, and shall promptly advise the Representatives (i)
when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(iii) of the prevention or suspension of the use of any preliminary
prospectus or the Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for its review prior to filing and shall not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
-20-
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 6(A), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs
(or 90 days if such 12-month period coincides with the Company's fiscal
year), an earning statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions of
Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof), and to
each other Underwriter a copy of the Registration Statement (without
including all exhibits thereto and all amendments thereof), and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the
Securities Act or the Rules, as many copies of any preliminary prospectus
and the Prospectus and any amendments thereof and supplements thereto as
the Representatives may reasonably request.
(e) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the Company shall not
be required in connection therewith, as a condition thereof, to qualify as
a foreign corporation or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock and
to furnish to the Representatives a copy of each annual or other report it
shall be required to file with the Commission (including the Report on Form
SR required by Rule 463 of the Rules).
-21-
(g) Without the prior written consent of the Representatives, for a
period of 180 days after the date of this Agreement, the Company shall not
issue, sell or register with the Commission (other than on Form S-8 or on
any successor form), or otherwise dispose of, directly or indirectly, any
equity securities of the Company (or any securities convertible into or
exercisable or exchangeable for equity securities of the Company), except
for the issuance of (i) the Shares pursuant to the Registration Statement,
(ii) shares of the Company's Common Stock pursuant to the Company's
existing stock option plan, equity compensation plan or currently
outstanding warrants, (iii) shares of Common Stock upon conversion of the
Company's currently outstanding convertible preferred stock or (iv) shares
of Common Stock or securities convertible into or exercisable or
exchangeable for equity securities of the Company in connection with
licensing, research and development or other collaborative arrangements,
PROVIDED THAT the transferee of any securities described in this clause
(iv) delivers to the Representatives a lock-up agreement of the type and on
the terms described in paragraph 4(o) of this Agreement.
(h) On or before completion of this offering, the Company shall make
all filings required under applicable federal securities laws and by the
Nasdaq National Market (including any required registration under the
Exchange Act).
(i) Without the prior written consent of Xxxxxxxxxxx, for a period of
180 days after the date of this Agreement, the Company shall not, by
amending, terminating or waiving any agreement between the Locked-up Holder
and the Company described in Section 4(p) or otherwise, permit any
Locked-up Holder to offer for sale, sell, distribute, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, any Shares of
Common Stock (or any securities convertible into, exercisable for, or
exchangeable for any Shares of Common Stock).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus, and the
printing, filing and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
6(A)(e), including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and qualification and the
-22-
preparation, distribution and shipment of preliminary and supplementary Blue Sky
memoranda; (iv) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as may
be reasonably requested for use in connection with the offering and sale of the
Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the
filing fees of the National Association of Securities Dealers, Inc. in
connection with its review of the terms of the public offering; (vi) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of all reports and information required by Section
6(A)(f); (vii) inclusion of the Shares for quotation on the Nasdaq National
Market; and (viii) all transfer taxes, if any, with respect to the sale and
delivery of the Shares by the Company to the Underwriters. Subject to the
provisions of Section 9, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they, or
any of them, may become subject under the Securities Act, the Exchange Act
or other Federal or state law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto, or arise out
of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that such indemnity
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement,
in reliance upon and in conformity with information furnished in writing to
the Company
-23-
by the Representatives on behalf of any Underwriter specifically for use
therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have. Notwithstanding the foregoing, the
Company shall not be liable to any Underwriter with respect to any
preliminary prospectus or any preliminary prospectus supplement, to the
extent that any such loss, claim, damage or liability of any Underwriter
results solely from an untrue statement of a material fact contained in, or
the omission of a material fact from, such preliminary prospectus, which
untrue statement or omission was corrected in the Prospectus, if the
Company shall sustain the burden of proving that (i) the Underwriter sold
Shares to the person alleging such loss, claim, damage or liability without
sending or giving or making available electronically, at or prior to the
written confirmation of such sale, a copy of the Prospectus to such person,
(ii) delivery of a Prospectus was required under the Securities Act, and
(iii) the Company delivered to the Underwriter copies of such Prospectus in
such quantities as it shall have reasonably requested.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, each director of the Company, and each officer of
the Company who signs the Registration Statement, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only insofar
as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or omission or alleged untrue statement or
omission which was made in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or supplement
thereto, contained in the last paragraph of the cover page of the
Prospectus, in the paragraph relating to stabilization on the inside front
cover page of the Prospectus, the concession and reallowance figures
appearing under the caption "Underwriting" in the Prospectus, in the last
sentence of the third full paragraph under the caption "Underwriting" in
the Prospectus relating to the exercise of discretionary authority by the
Underwriters and the sixth paragraph under the caption "Underwriting" in
the Prospectus; provided, however, that the obligation of each Underwriter
to indemnify the Company (including any controlling person, director or
officer thereof) shall be limited to the net proceeds received by the
Company from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification
-24-
provided for in Section 7(a) or 7(b) shall be available to any party who
shall fail to give notice as provided in this Section 7(c) if the party to
whom notice was not given was unaware of the proceeding to which such
notice would have related and was prejudiced by the failure to give such
notice but the omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve it from any liability that it
may have to any indemnified party for contribution or otherwise than under
this Section. In case any such action, suit or proceeding 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 its
election so to assume the defense thereof and the approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except as
provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying parties shall not have employed counsel to assume
the defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action,
suit, proceeding or claim effected without its written consent.
8. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section 7(a) is
due in accordance with its terms but for any reason is held to be unavailable
from the Company, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by the Company from persons other
than the Underwriters, such as persons who control the Company within the
meaning of the Securities Act, officers of the Company who signed the
Registration Statement and directors of the
-25-
Company, who may also be liable for contribution) to which the Company and one
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7 hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts but before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Prospectus, bear to
(y) the underwriting discounts received by the Underwriters, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company or
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, (i) in no case shall any Underwriter (except
as may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) the Company shall be liable
and responsible for any amount in excess of such underwriting discount;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company within
the meaning of the Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) in the
immediately preceding sentence of this Section 8. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution
-26-
may be sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution, with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives by notifying the
Company at any time
(a) in the absolute discretion of the Representatives at or before
any Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with the
offering; (iii) if there shall be such a material adverse change in general
financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
market the Shares; (iv) if trading in the Shares has been suspended by the
Commission or trading generally on the New York Stock Exchange, Inc., on
the American Stock Exchange, Inc. or on the Nasdaq National Market has been
suspended or limited, or minimum or maximum ranges for prices for
securities shall have been fixed, or maximum ranges for prices for
securities have been required, by said exchanges or by order of the
Commission, the National Association of Securities Dealers, Inc., or any
other governmental or regulatory authority; or (v) if a banking moratorium
has been declared by any state or Federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter except as set forth
in Section 6(B), and no Underwriter shall be under any liability to the Company,
except that (y) if this Agreement is terminated by the Representatives or the
Underwriters because of any failure, refusal or inability on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees and
-27-
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 10 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have the
right to postpone the applicable Closing Date for a period of not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or Prospectus)
may be effected by the Representatives and the Company. If the number of Shares
to be purchased on such Closing Date by such defaulting Underwriter or
Underwriters shall exceed 10% of the Shares that all the Underwriters are
obligated to purchase on
-28-
such Closing Date, and none of the nondefaulting Underwriters or the Company
shall make arrangements pursuant to this Section within the period stated for
the purchase of the Shares that the defaulting Underwriters agreed to purchase,
this Agreement shall terminate with respect to the Shares to be purchased on
such Closing Date without liability on the part of any nondefaulting Underwriter
to the Company and without liability on the part of the Company, except in both
cases as provided in Sections 6(B), 7, 8 and 9. The provisions of this Section
shall not in any way affect the liability of any defaulting Underwriter to the
Company or to the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement.
11. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(B), 7, 8
and 9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the Underwriters and
the Company and their respective successors and assigns, and, to the extent
expressed herein, for the benefit of persons controlling any of the
Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph if subsequently confirmed in writing, (a)
if to the Representatives, c/o CIBC Xxxxxxxxxxx Corp., CIBC Xxxxxxxxxxx Xxxxx,
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx X. Xxxxxxx,
and (b) if to the Company, to its agent for service as such agent's address
appears on the cover page of the Registration Statement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
us.
-29-
Very truly yours,
PROGENICS PHARMACEUTICALS, INC.
By:
-----------------------------------
Name:
Title:
Confirmed:
CIBC XXXXXXXXXXX CORP.
BANKAMERICA XXXXXXXXX XXXXXXXX
VECTOR SECURITIES INTERNATIONAL, INC.
Acting severally on behalf of
themselves and as Representatives
of the several Underwriters named
in Schedule I annexed hereto
CIBC XXXXXXXXXXX CORP.
By:
----------------------------------
Name:
Title:
BANKAMERICA XXXXXXXXX XXXXXXXX
By:
----------------------------------
Name:
Title:
VECTOR SECURITIES INTERNATIONAL, INC.
By:
----------------------------------
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Name:
Title:
-31-
SCHEDULE I
NUMBER OF
FIRM SHARES TO
NAME BE PURCHASED
---- --------------
CIBC Xxxxxxxxxxx Corp.
BankAmerica Xxxxxxxxx Xxxxxxxx
Vector Securities International, Inc.
---------------------------
------
Total
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