EXHIBIT 1.1
2,000,000 Shares
PROGENICS PHARMACEUTICALS, INC.
Common Stock
UNDERWRITING AGREEMENT
____________, 1997
Xxxxxxxxxxx & Co., Inc.
Xxxxxxxxx, Xxxxxxxx & Company, LLC
Vector Securities International, Inc.
c/o Oppenheimer & Co., Inc.
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 certified or official bank check or checks payable in
New York Clearing House (next day) funds to the Company, shall take place at the
offices of Xxxxx Xxxxxxxxxx, 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
certified or official bank check or checks payable in New York Clearing House
(next day) funds to the Company shall take place at the offices of Xxxxx
Xxxxxxxxxx specified above at the time and on the date (which may be the same
date as, but in no event shall be
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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."
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
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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
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 and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder; 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 and the last sentence of the third full paragraph under the
caption "Underwriting" in the Prospectus regarding the exercise of
discretionary authority by the Underwriters. 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.
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(b) All contracts and other documents required to be filed as
exhibits to the Registration Statement have been filed with the Commission
as exhibits to the Registration Statement.
(c) 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 information purported to be
shown therein of the Company 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 Prospectus shall be subject to normal
year-end adjustments in accordance with generally accepted accounting
principles.
(d) 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.
(e) 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
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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 or any subsidiary, 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 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.
(f) 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 or
described in the Registration Statement and Prospectus as having been
filed; 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.
(g) 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
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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.
(h) 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.
(i) 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
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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, other than those described in the
Registration Statement and the Prospectus and those which do not and will
not have a material adverse effect upon the assets or properties, business,
results of operations or financial condition of the Company.
(j) 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 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.
(k) 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 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.
(l) There is no document or contract of a character required 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,
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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.
(m) 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.
(n) 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 for such consents or waivers
which have already been obtained and are in full force and effect.
(o) 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
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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, 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.
(p) 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 enforceable written
agreement that he will not, for a period of 180 days after the date of this
Agreement (120 days with respect to one stockholder which owns 45,000
shares of Common Stock), offer for sale, sell, distribute, grant any option
for the sale of, or otherwise dispose of, directly or indirectly, or
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 Xxxxxxxxxxx & Co., Inc. ("Oppenheimer"). Oppenheimer agrees to
notify Xxxxxxxxx, Xxxxxxxx & Company and Vector Securities International,
Inc. of its intention to consent to any of the transactions prohibited by
this paragraph.
(q) 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
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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.
(r) 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.
(s) 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.
(t) 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.
(u) 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.
(v) The Shares have been duly authorized for quotation on Nasdaq
National Market.
(w) The Company has complied with all of the requirements and filed
the required forms as specified in 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.
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(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 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, 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 organized 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
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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 and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits to enter into, deliver and
perform this Agreement and to issue and sell the Shares other than
those required under state and foreign Blue Sky laws.
(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, 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. To the best of 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, 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 the best of 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
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described in the Registration Statement, to demand registration of any
security during the period ending 180 days after the Effective Date
(120 days with respect to one stockholder), 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 charter or
by-laws of the Company.
(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 the best of 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
-14-
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 -
Research and Development Collaborations"; "Business - Government
Grants"; "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 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 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 the best of 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
-15-
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"), (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") and
(F) the letter agreement dated April 4, 1997 between the Company and
the Wyeth-Ayerst Research Division of American Home Products (the "AHP
Agreement"). The Columbia License Agreement, the Xxxxx-Xxxxxxxxx
License Agreement, the Aquila QS-21 License Agreement, the Aquila
gp120 Sublicense Agreement, the UCAL License Agreement, the BMS
License Agreements and the AHP Agreement have been duly and validly
authorized, executed and delivered by the Company.
(xiii) To the best of such counsel's knowledge, neither the
Company nor Columbia University has 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, 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.
(xiv) To the best of 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 the best of such counsel's knowledge no such
proceedings are threatened or contemplated by governmental authorities
or others.
-16-
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" (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:
-17-
(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 respect to those statements that describe the Columbia License
Agreement and the Columbia Licensed Patents as to which such counsel need
express no
-18-
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
-19-
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, 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
-20-
Xxxx and Xxxx 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
-21-
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 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
-22-
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).
(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 the Shares pursuant to the Registration Statement, and
the issuance of shares pursuant to the Company's existing stock option plan
or bonus plan.
(h) On or before completion of this offering, the Company shall make
all filings required under applicable 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 the 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
-23-
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 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 by the Representatives on behalf of any Underwriter
specifically for use
-24-
therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(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 and 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; 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 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
-25-
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 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
-26-
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 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
Underwriter's obligations to contribute pursuant to this Section 8 are
several in proportion to their respective underwriting commitments and not
joint.
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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, except
as set forth in Section 6(B), the Company shall not be under any liability to
any Underwriter, 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 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
-28-
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 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
-29-
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 Oppenheimer & Co., Inc., 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.
Very truly yours,
-30-
PROGENICS PHARMACEUTICALS, INC.
By
-------------------------------
Name:
Title:
Confirmed:
XXXXXXXXXXX & CO., INC.
XXXXXXXXX, XXXXXXXX & COMPANY
VECTOR SECURITIES INTERNATIONAL, INC.
Acting severally on behalf of
themselves and as Representatives
of the several Underwriters named
in Schedule I annexed hereto
XXXXXXXXXXX & CO., INC.
By:
---------------------------------
Name:
Title:
XXXXXXXXX, XXXXXXXX & COMPANY, LLC
By:
-----------------------------------
Name:
Title:
VECTOR SECURITIES INTERNATIONAL, INC.
By:
-----------------------------------
-31-
Name:
Title:
-32-
SCHEDULE I
NUMBER OF
FIRM SHARES TO
NAME BE PURCHASED
---- ---------------
Xxxxxxxxxxx & Co., Inc.
Xxxxxxxxx, Xxxxxxxx & Company, LLC
Vector Securities International, Inc.
_______________________
________
Total
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