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EXHIBIT 1.1
[Draft--2/4/97]
ILEX Oncology, Inc.
2,500,000 Shares *
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
, 1997
Salomon Brothers Inc
Xxxxx & Company
Xxxxx Xxxxxx Inc.
As Representatives of the several Underwriters,
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ILEX Oncology, Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 2,500,000 shares of Common Stock, $.01 par value ("Common
Stock") of the Company (the "Underwritten Securities"). The Company also
proposes to grant to the Underwriters an option to purchase up to 375,000
additional shares of Common Stock (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities").
1. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1. Certain terms used in this
Section 1 are defined in paragraph (i) hereof.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (file number 333-
17769) on Form S-1, including a related preliminary prospectus, for the
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* Plus an option to purchase from ILEX Oncology, Inc. up to 375,000
additional shares to cover over-allotments.
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registration under the Securities Act of 1933, as amended (the "Act"),
of the offering and sale of the Securities. The Company may have filed
one or more amendments thereto, including the related preliminary
prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (A) prior to
effectiveness of such registration statement, a further amendment to
such registration statement (including the form of final prospectus) or
(B) after effectiveness of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b)(1) or (4). In the
case of clause (B), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to
be included in the Prospectus with respect to the Securities and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be
included or made therein. Upon your request, but not without your
agreement, the Company also will file a Rule 462(b) Registration
Statement in accordance with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date and on any date on which shares
sold in respect of the Underwriters' over-allotment option are
purchased, if such date is not the Closing Date (a "Settlement Date"),
the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
rules thereunder; on the Effective Date, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not
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misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement,
or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) The Company owns, or has obtained licenses for, the patents
and patent applications referenced or described in the Prospectus as
being owned by or licensed to it (such owned and licensed patents and
patent applications collectively, the "Patents"); except to the extent
any of the following would not have a material adverse effect on the
condition (financial or other), business, properties, prospects, net
worth or results of operations of the Company that is or would be,
singly or in the aggregate, material to the Company, whether or not
occurring in the ordinary course of business (a "Material Adverse
Effect"), or except as set forth in the Prospectus under the captions
"Risk Factors -- Uncertainty Regarding Patents and Proprietary Position;
Rights to Technology Dependent Upon Compliance with Licenses and
Agreements", "Risk Factors -- Extensive Government Regulation; No
Assurance of Necessary FDA and Other Regulatory Approvals", "Business --
In-Licensing Agreements", "Business -- Orphan Drug Status" or "Business
-- Patents, Trademarks and Trade Secrets", (i) to the Company's
knowledge, there are no rights of third parties to any such Patents;
(ii) to the Company's knowledge, there is no material infringement by
third parties of any such Patents; (iii) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any such Patents, and
the
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Company is unaware of any facts which would form a reasonable basis for
any such claim; (iv) to the Company's knowledge, there is no pending or
threatened action, suit, proceeding or claim by any governmental
authorities or others challenging the validity or scope of any such
Patents, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (v) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (vi) to the Company's knowledge,
without the Company's having engaged in any affirmative diligence out of
the ordinary course of business, there is no U.S. patent or published
U.S. patent application which contains claims that dominate or may
dominate any Patents described in the Prospectus as being owned by or
licensed to the Company or that interferes with the issued or pending
claims of any such Patents; (vii) to the Company's knowledge the Patents
are free and clear of the claims of others and of all liens, security
interests and encumbrances whatsoever; and (viii) without the Company's
having engaged in any affirmative diligence out of the ordinary course
of business, there is no prior art of which the Company is aware that
may render any U.S. patent held or used by the Company invalid or any
U.S. patent application held by the Company invalid or any U.S. patent
application held by the Company unpatentable which has not been
disclosed to the U.S. Patent and Trademark Office (the "PTO").
(d) The Company owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including the
Federal Drug Administration (the "FDA") and all foreign regulatory
agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
conducted as of the date hereof, except where failure to have obtained
or made the same would not have a Material Adverse Effect, and the
Company has
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not received any actual notice of any proceeding relating to revocation
or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except as described in the
Registration Statement and the Prospectus under the captions "Risk
Factors -- Uncertainty Regarding Patents and Proprietary Position;
Rights to Technology Dependent Upon Compliance with Licenses and
Agreements", "Risk Factors -- Extensive Government Regulation; No
Assurance of Necessary FDA and Other Regulatory Approvals", "Business --
In-Licensing Agreements", "Business -- Orphan Drug Status" or "Business
-- Patents, Trademarks and Trade Secrets"; and the Company is in
compliance with all applicable statutes, laws, ordinances, rules, orders
and regulations of any governmental entity ("Applicable Laws") relating
to the conduct of its business as conducted as of the date hereof, the
violation of which would have a Material Adverse Effect.
(e) The Company owns, possesses or has the right to use the
Patents, trademarks, service marks, trade secrets and other proprietary
information and materials (collectively, the "Intellectual Property")
employed by it in connection with the business conducted by it as of the
date hereof; to the Company's knowledge, there are no infringements of
or conflicts with asserted rights of others with respect to any
Intellectual Property rights that, if determined adversely to the
Company, would individually or in the aggregate have a material adverse
effect on the Company.
(f) the descriptions set forth in the Prospectus under the
headings "Risk Factors -- Uncertainty Regarding Patents and Proprietary
Position; Rights to Technology Dependent Upon Compliance with Licenses
and Agreements", "Risk Factors -- Extensive Government Regulation; No
Assurance of Necessary FDA and Other Regulatory Approvals", "Business --
In-Licensing Agreements", "Business -- Orphan Drug Status" or "Business
-- Patents, Trademarks and Trade Secrets" with respect to the
Intellectual Property owned or used by the Company is accurate in all
material respects and presents fairly the material disclosed therein.
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(g) Schedule II attached hereto identifies, as of the date
hereof, all U.S. patents and U.S. patent applications filed by the
Company. As of [recent specified date], the Company was listed in the
records of the PTO as a holder of record of each of the patents and
patent applications listed in Schedule II. To the Company's knowledge,
each of the patent applications listed in Schedule II have been filed on
behalf of the Company with the PTO in accordance with the rules and
regulations of the PTO and each patent application listed in Schedule II
has been awarded a filing date by the PTO.
(h) to the Company's knowledge, there is no interference
proceeding or public use proceeding with respect to any application set
forth in Schedule II.
(i) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement, any post-effective amendment
or amendments thereto and any Rule 462(b) Registration Statement became
or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in paragraph (a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information. "Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration state-
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ment referred to in paragraph (a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as
the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A. "Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement (file number 333-
17769).
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$ per share, the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up
to 375,000 shares of the Option Securities at the same purchase price per share
as the Underwriters shall pay for the Underwritten Securities. Said option may
be exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in
part at any time (but not more than once) on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of the Option
Securities as to which the several Underwriters are exercising the option and
the Settlement Date. Delivery of certificates for the shares of Option
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Securities by the Company, and payment therefor to the Company, shall be made
as provided in Section 3 hereof. The number of shares of the Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the second
business day prior to the Closing Date) shall be made at 10:00 AM, New York
City time, on , 1997, or such later date (not later than
, 1997) as the Representatives shall designate, which date and time
may be postponed by agreement among the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the aggregate purchase price thereof to or upon the
order of the Company by certified or official bank check or checks drawn on or
by a New York Clearing House bank and payable in same day funds or by wire
transfer of New York Clearing House bank same day funds. Delivery of the
Underwritten Securities and the Option Securities shall be made at such
location as the Representatives shall reasonably designate at least one
business day in advance of the Closing Date and payment for such Securities
shall be made at the office of Cravath, Swaine & Xxxxx, New York, New York.
Certificates for the Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised
after the second business day prior to the Closing Date, the Company will
deliver (at the expense of the Company) to the Representatives, at Seven World
Trade
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Center, New York, New York, on the date specified by the Representatives (which
shall be within three business days after exercise of said option),
certificates for the Option Securities in such names and denominations as the
Representatives shall have requested against payment of the purchase price
thereof to or upon the order of the Company by certified or official bank check
or checks drawn on or by a New York Clearing House bank and payable in same day
funds or by wire transfer of New York Clearing House bank same day funds. If
settlement for the Option Securities occurs after the Closing Date, the Company
will deliver to the Representatives on the Settlement Date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement, supplement to the Prospectus or any Rule
462(b) Registration Statement without your prior consent. Subject to
the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. Upon your request, the
Company will cause the Rule 462(b) Registration Statement, completed in
compliance with the Act and the applicable rules and regulations
thereunder, to be filed with the
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Commission pursuant to Rule 462(b) and will provide evidence
satisfactory to the Representatives of such filing. The Company will
promptly advise the Representatives (A) when the Registration Statement,
if not effective at the Execution Time, and any amendment thereto, shall
have become effective, (B) when the Prospectus, any supplement thereto
or any Rule 462(b) Registration Statement shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (C) when, prior
to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (D) of
any request by the Commission for any amendment of the Registration
Statement or any Rule 462(b) Registration Statement or supplement to the
Prospectus or for any additional information, (E) 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 (F) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will 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.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the rules thereunder, the Company
promptly will (i) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the
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Representatives an earnings statement or statements of the Company which
will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(iv) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will furnish or cause to be furnished
to the Representatives copies of all reports on Form SR required by Rule
463 under the Act. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(v) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay the fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering, which is estimated
to be $4,238.
(vi) The Company will not, for a period of 180 days following
the Execution Time, without the prior written consent of Salomon
Brothers Inc, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any other shares of
Common Stock or any securities convertible into, or exchangeable for,
shares of Common Stock; provided, however, that the Company may issue
and sell Common Stock pursuant to any employee stock option plan of the
Company in effect at the Execution Time and the Company may issue Common
Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time[; provided, further, that the
Company may sell [ ] shares of Common Stock to [PRN] pursuant to
______ ].
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as
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the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution
Time, the Closing Date and any Settlement Date pursuant to Section 3 hereof, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date, or (ii) 12:00 Noon on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Fulbright & Xxxxxxxx, L.L.P., counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is organized, with the corporate power and
authority to own its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business and is in good
standing in the State of Texas;
(ii) the Company's authorized capital stock and outstanding
capital stock is as set
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forth in the Prospectus under the caption "Description of Capital
Stock"; the capital stock of the Company conforms as to legal matters in
all material respects to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock"; the
outstanding shares of Common Stock have been duly and validly authorized
and issued and are fully paid and nonassessable; the Securities have
been duly and validly authorized, and, when issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities are duly authorized for listing,
subject to official notice of issuance, on the Nasdaq National Market;
the certificates for the Securities are in valid and sufficient form;
and the holders of outstanding shares of capital stock of the Company
are not entitled to preemptive or other rights to subscribe for the
Securities;
(iii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus under the caption "Business--
Legal Proceedings", and there is no franchise, contract or other
document required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(iv) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus (other than
the financial statements and schedules and other financial, statistical
and accounting information contained therein as to which such counsel
need express no opinion) comply as to form
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in all material respects with the applicable requirements of the Act and
the rules thereunder;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) to the knowledge of such counsel no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated herein,
except (a) such as have been obtained under the Act, (b) such as may be
required under the blue sky and state securities laws of any
jurisdiction applicable to the offering and sale of the Securities by
the Underwriters and such as may be required for the clearance of the
underwriting arrangements relating to such offering and sale with the
NASD (as to which such counsel need express no opinion), and (c) such
other approvals (specified in such opinion) as have been obtained;
(vii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under any law or the
charter or by-laws of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company
is a party or bound or any judgment, injunction, order or decree known
to such counsel to be applicable to the Company of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company;
(viii) except as set forth in the Registration Statement and the
Prospectus under the caption "Description of Capital Stock--Registration
Rights," to the knowledge of such counsel after due inquiry no holders
of securities of the Company have rights to the registration of such
securities under the Registration Statement;
(ix) to Counsel's Knowledge (as defined herein), except to the
extent any of the following would not have a Material Adverse Effect and
except as set forth in the Prospectus (i) the Company owns, or has
obtained licenses for, the
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Intellectual Property, (ii) there are no rights of third parties to any
Patents; (iii) there is no material infringement by third parties of any
such Patents; (iv) there is no pending or threatened action, suit,
proceeding or claim by others challenging the Company's rights in or to
any such Patents; (v) there is no pending or threatened action, suit,
proceeding or claim by any governmental authorities or others
challenging the validity or scope of any such Patents; (vi) there is no
pending or threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others; and (vii)
the Patents are free and clear of all liens, security interests and
encumbrances whatsoever. "Counsel's Knowledge" as used herein shall
mean counsel has relied solely upon (i) representations made to such
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counsel by officers of the Company and (ii) where appropriate, searches
conducted by such counsel (x) in the records of the U.S. Patent Office
on [a recent date] (y) in the records of the U.S. Trademark Office on [a
recent date] and (z) in the Uniform Commercial Code Index maintained by
the Texas Secretary of State on [a recent date].
(x) to Counsel's Knowledge (i) the Company owns, possesses or has
obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including the FDA and all foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except where failure to have obtained or made the
same would not have a Material Adverse Effect; (ii) the Company has not
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the Prospectus;
and (iii) the Company is in compliance with all Applicable Laws relating
to the conduct of its business as conducted as of the date hereof, the
violation of which would have a Material Adverse Effect;
(xi) to Counsel's Knowledge, there are no infringements of or
conflicts with asserted rights of others with respect to any
Intellectual Property that, if determined adversely to the Company,
would individually or in the
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aggregate have a material adverse effect on the Company;
(xii) the descriptions set forth in the Prospectus under the
headings "Risk Factors -- Uncertainty Regarding Patents and Proprietary
Position; Rights to Technology Dependent Upon Compliance with Licenses
and Agreements", "Business -- In-Licensing Agreements" or "Business --
Patents, Trademarks and Trade Secrets" with respect to the Intellectual
Property owned or used by the Company is accurate in all material
respects and presents fairly the material disclosed therein;
(xiii) To Counsel's Knowledge Annex I of the opinion identifies,
as of the date hereof, all U.S. patents and U.S. patent applications
filed by the Company. As of [recent specified date], the Company was
listed in the records of the PTO as a holder of record of each of the
patents and patent applications listed in Annex I. Based on a search of
the documents of record in the PTO as of [recent specified date], a
review of the Company's records through such date, and a review of a
certificate of an officer of the Company, such counsel has no knowledge
of any facts that lead such counsel to conclude that the Company does
not have clear title to each of the patents and patent applications
listed in Annex I;
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(xiv) to such counsel's knowledge, the information in the
Prospectus under the caption "Business--Patents, Trademarks and Trade
Secrets" to the extent it constitutes a description of the current state
of U.S. Patent Law is accurate; and
(xv) the formation of the Company by The Cancer Therapy and
Research Foundation of South Texas in December 1993 and related
transactions were done in accordance with the Texas Non-Profit
Corporation Act.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company, representatives
of the Underwriters and representatives of counsel for the Underwriters, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel need not pass upon, and need
not assume any responsibility for, the accuracy, completeness or fairness of
any statement contained in the Registration Statement or the Prospectus (except
for those statements referred to in the opinions expressed in the first two
clauses of subsection (ii) above) and has made no independent check or
verification thereof, such counsel shall state that on the basis of the
foregoing, no facts have come to such counsel's attention that has led such
counsel to believe that the Registration Statement, as of the date thereof,
included 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 or the date of
such opinion, included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that such counsel need express no opinion or belief with
respect to the financial statements, financial statement schedules and other
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financial, accounting and statistical data included therein or excluded
therefrom.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
States of New York and Texas, the United States or the General Corporation Law
of the State of Delaware, to the extent such counsel deems proper and as
specified in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date or at the Settlement Date.
(c) The Representatives shall have received from Cravath, Swaine
& Xxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplements
to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened;
and
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(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time and at the Closing Date, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Representatives a letter or letters,
dated respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration
Statement and the Prospectus and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors and
compensation, executive and audit committees of the Company; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company as to transactions and events subsequent to December 31,
1996, nothing came to their attention which caused them to
believe that:
(1) with respect to the period subsequent to
December 31, 1996, there were any changes, at a specified
date not more than five business days prior to the date of
the letter, in the long-term debt,
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cash, cash equivalents and temporary investments or
capital stock of the Company or decreases in the total
stockholders' equity of the Company or decreases in
working capital of the Company as compared with the
amounts shown on the December 31, 1996, balance sheet
included in the Registration Statement and the Prospectus,
or for the period from January 1, 1996, to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year; in revenues or
increases in total operating expenses or in total or per
share amounts of net losses of the Company, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by
the Representatives; or
(2) the information included in the Registration
Statement and the Prospectus in response to Regulation S-
K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information) and Item 402
(Executive Compensation) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement and the
Prospectus, including the information set forth under the
captions "Prospectus Summary", "Risk Factors", "Use of Proceeds",
"Capitalization", "Summary Financial Information", "Management's
Discussion and Analysis of Financial Condition and Results of
Operations", "Business", "Management", "Principal Stockholders"
and "Certain Transactions" in the Prospectus, agrees with the
accounting records of
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the Company, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
The Representatives shall have also received from Xxxxxx Xxxxxxxx
LLP a letter stating that the Company's system of internal accounting controls
taken as a whole is sufficient to meet the broad objectives of internal
accounting control insofar as those objectives pertain to the prevention or
detection of errors or irregularities in amounts that would be material in
relation to the financial statements of the Company (sometimes referred to as a
"No Material Weakness Letter").
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto).
(g) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto from
each officer and director of the Company and each holder of one percent (1%) or
more of any class of the outstanding capital stock of the Company addressed to
the Representatives, in which each such person agrees not to offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
an offering of, any shares of Common Stock beneficially owned by such person or
any securities convertible into, or exchangeable for, shares of Common Stock
for a period of 180 days following the Execution Time without the prior written
consent of Salomon Brothers Inc, other than shares of Common Stock disposed of
as bona fide gifts.
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(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Underwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Securities Exchange Act
of 1934 (the "Exchange Act") against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise,
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insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein and (ii) with respect to any
untrue statement or omission of a material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Underwriters, (x) delivery of the Prospectus
was required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and (z) there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement,
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25
and each person who controls the Company within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page and under the heading "Underwriting" in any Preliminary
Prospectus and the Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus, and you, as the Representatives,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such
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counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
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considerations. Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities
set forth opposite their names in Schedule I hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such
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nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on either
the New York Stock Exchange or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to
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the Representatives, will be mailed, delivered or telefaxed and confirmed to
them, care of Salomon Brothers Inc, at Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, attention: Legal Department; or, if sent to the Company, will be
mailed, delivered or telefaxed and confirmed to it at 00000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, attention of Xxxxx X. Xxxx.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
ILEX Oncology, Inc.
By:
---------------------------
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Xxxxx & Company
Xxxxx Xxxxxx Inc.
By: Salomon Brothers Inc
By:
--------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
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EXHIBIT A
[Letterhead of officer, director or major shareholder of
ILEX Oncology, Inc.]
ILEX Oncology, Inc.
Public Offering of Common Stock
, 1997
Salomon Brothers Inc
Xxxxx & Company
Xxxxx Xxxxxx Inc.
As Representatives of the several Underwriters,
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between ILEX
Oncology, Inc., a Delaware corporation (the "Company") and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into
the Underwriting Agreement, the undersigned agrees not to offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
an offering of, any shares of Common Stock beneficially owned by the
undersigned or any securities convertible into, or exchangeable for, shares of
Common Stock for a period of 180 days following the day on which the
Underwriting Agreement is executed without the prior written consent of Salomon
Brothers Inc, other than shares of Common Stock disposed of as bona fide gifts.
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the
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2
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[Signature of officer,
director or major shareholder]
[Name and address of
officer, director or major
shareholder]
33
SCHEDULE I
Number of Shares of
Underwritten Securities
Underwriters To Be Purchased
------------ -----------------------
Salomon Brothers Inc . . . . . . . . . . . . .
Xxxxx & Company . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . .
----------------
Total . . . . . . . . . . . . . .
================
