1
Exhibit 1.1
2,750,000 SHARES
CORIXA CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
September ___, 1997
XXXXXX BROTHERS INC.
INVEMED ASSOCIATES, INC.
VECTOR SECURITIES INTERNATIONAL, INC.
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Corixa Corporation, a Delaware corporation (the "Company"),
proposes to sell 2,750,000 shares (the "Firm Stock") of the Company's Common
Stock, par value $0.001 per share (the "Common Stock"). In addition, the
Company proposes to grant to the Underwriters named in Schedule 1 hereto (the
"Underwriters") an option to purchase up to an additional 412,500 shares of the
Common Stock on the terms and for the purposes set forth in Section 2 (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
concerning the purchase of the Stock from the Company by the Underwriters.
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 with
respect to the Stock has (i) been prepared by the Company in
conformity with the requirements of the United States
Securities Act of 1933 (the "Securities Act") and the rules
and regulations (the "Rule and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement and all the
amendments thereto have been delivered by the Company to you
as the representatives (the "Representatives") of the
Underwriters. As used in this Agreement, "Effective Time"
means the date and the time as of which such registration
statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in
such registration
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statement, or amendments thereof, before it became effective
under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all
exhibits and financial statements and schedules, all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 5(a) hereof and deemed
to be a part of the registration statement as of the Effective
Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations and any registration statement filed pursuant to
Rule 462(b) of the Rules and Regulations; and "Prospectus"
means such final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of
the Rules and Regulations. The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the case
may be, conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of
the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(c) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the state of Delaware, is duly qualified to do
business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification,
except for jurisdictions in which the failure to so qualify
would not in the aggregate have a material adverse effect upon
the Company. The Company has all requisite corporate power
and authority necessary to own or hold its properties and to
conduct its business as described in the Prospectus.
(d) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and
non- assessable and conform in all material respects to the
description thereof contained in the Prospectus.
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(e) The unissued shares of the Stock to be issued
and sold by the Company to the Underwriters hereunder have
been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable; and
the Stock will conform to the description thereof contained in
the Prospectus.
(f) This Agreement has been duly authorized,
executed and delivered by the Company.
(g) The execution, delivery and performance of
this Agreement by the Company and the consummation of the
transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, except where such conflict, breach,
violation or default would not have a material adverse effect
on the financial position, stockholders' equity, results of
operations, business or prospects of the Company (hereinafter
a "Material Adverse Effect"), nor will such actions result in
any violation of the provisions of the charter or by-laws of
the Company or any statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over
the Company or any of its properties or assets; and except for
the registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities
Exchange Act of 1934 (the "Exchange Act") and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the
transactions contemplated hereby.
(h) Except as described in the Prospectus, there
are no contracts, agreements or understandings between the
Company and any person granting such person the right (other
than rights which have been waived or satisfied) to require
the Company to file a registration statement under the
Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company
to include such securities in the securities registered
pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(i) Except as described in the Prospectus, the
Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A, or
Regulations D or S, of the Securities Act, other than shares
issued pursuant to
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employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding
contractual obligations which have been disclosed in writing
to the Representatives, options, rights or warrants.
(j) The Company has not sustained, since the date
of the latest audited financial statements included in the
Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and,
since such date, there has not been any material change in the
capital stock, or any change in the long-term debt (other than
pursuant to currently outstanding capital lease line
arrangements), of the Company or any material adverse change,
or any development involving a prospective material adverse
change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or
contemplated in the Prospectus.
(k) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present
fairly the financial condition and results of operations of
the Company, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout
the periods involved.
(l) Ernst & Young LLP, who have certified certain
financial statements of the Company, whose report appears in
the Prospectus and who have delivered the initial letter
referred to in Section 7(g) hereof, are independent public
accountants as required by the Securities Act and the Rules
and Regulations.
(m) Except as described in the Prospectus, the
Company owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of its
business as now conducted and has no reason to believe that
the conduct of its business will conflict with, and has not
received any notice of any claim of conflict with, any such
rights of others.
(n) There are no legal or governmental
proceedings pending to which the Company is a party or of
which any property or assets of the Company is the subject
which are required to be described in the Prospectus and which
are not so described; and to the Company's knowledge, no such
proceedings are threatened or overtly contemplated by
governmental authorities or others.
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(o) There are no contracts or other documents
which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the
Registration Statement.
(p) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of
the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(q) The Company (i) makes and keeps accurate
books and records in all material respects and (ii) maintains
internal accounting controls which provide reasonable
assurance that (A) all transactions are executed in accordance
with management's authorization, (B) all transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability
for its assets is compared with existing assets at reasonable
intervals.
(r) The Company (i) is not in violation of its
charter or by-laws, (ii) is not in default in any material
respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its
properties or assets is subject and (iii) is not in violation
of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets is subject, the
effect of which violation in (iii) above would have a Material
Adverse Effect, and the Company or has not failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business as
described in the Prospectus.
2. Purchase of the Stock by the Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell 2,750,000
shares of the Firm Stock to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of
shares of the Firm Stock set opposite that Underwriter's name in Schedule 1
hereto. The respective purchase obligations of the Underwriters with respect
to the Firm Stock shall be rounded among the Underwriters to avoid fractional
shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option
to purchase up to 412,500 shares of Option Stock. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Stock
and is exercisable as provided in Section 4 hereof.
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Shares of Option Stock shall be purchased severally for the account of the
Underwriters in proportion to the number of shares of Firm Stock set opposite
the name of such Underwriters in Schedule 1 hereto. The respective purchase
obligations of each Underwriter with respect to the Option Stock shall be
adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts. The price of both the
Firm Stock and any Option Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock
to be delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the Stock
to be purchased on such Delivery Date as provided herein.
3. Offering of Stock by the Underwriters. Upon
authorization by the Representatives of the release of the Firm Stock, the
several Underwriters propose to offer the Firm Stock for sale upon the terms
and conditions set forth in the Prospectus.
It is understood that 137,500 shares of the Firm Stock will
initially be reserved by the several Underwriters for offer and sale upon the
terms and conditions set forth in the Prospectus and in accordance with the
rules and regulations of the National Association of Securities Dealers, Inc.
to employees and persons having business relationships with the Company who
have heretofore delivered to the Representatives offers or indications of
interest to purchase shares of Firm Stock in form satisfactory to the
Representatives, and that any allocation of such Firm Stock among such persons
will be made in accordance with timely directions received by the
Representatives from the Company; provided, that under no circumstances will
the Representatives or any Underwriter be liable to the Company or to any such
person for any action taken or omitted in good faith in connection with such
offering to employees and persons having business relationships with the
Company. It is further understood that any shares of such Firm Stock which are
not purchased by such persons will be offered by the Underwriters to the public
upon the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of
and payment for the Firm Stock shall be made at the office of Venture Law
Group, 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, at 10:00 A.M., New York City
time, on the fourth full business day following the date of this Agreement or
at such other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to
as the "First Delivery Date." On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the Firm Stock to
the Representatives for the account of each Underwriter against payment to or
upon the order of the Company of the purchase price by federal funds wire
transfer. Such payment shall be made upon delivery of the Firm Stock to the
Representatives for the respective accounts of the several Underwriters
(including, without limitation, by "full-fast" electronic transfer by
Depository Trust Company) against receipt therefor signed by Xxxxxx Brothers
Inc. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as the Representatives shall
request in writing not less than two full
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business days prior to the First Delivery Date. For the purpose of expediting
the checking and packaging of the certificates for the Stock, the Company shall
make the certificates representing the Firm Stock available for inspection by
the Representatives in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement the option granted in Section 2 may be exercised by written
notice being given to the Company by the Representatives. Such notice shall
set forth the aggregate number of shares of Option Stock as to which the option
is being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the shares of Option Stock
are delivered are sometimes referred to as the "Second Delivery Date" and the
First Delivery Date and the Second Delivery Date are sometimes each referred to
as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement between
the Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver
or cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by federal funds wire transfer.
Such payment shall be made upon delivery of the Firm Stock to the
Representatives for the respective accounts of the several Underwriters
(including, without limitation, by "full-fast" electronic transfer by
Depository Trust Company) against receipt therefor signed by Xxxxxx Brothers
Inc. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. Upon delivery, the Option Stock shall be
registered in such names and in such denominations as the Representatives shall
request in the aforesaid written notice. For the purpose of expediting the
checking and packaging of the certificates for the Option Stock, the Company
shall make the certificates representing the Option Stock available for
inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery
Date.
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5. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form approved
by the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than
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; to make no further
amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed
copy of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives
such number of the following documents as the Representatives
shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the Commission
and each amendment thereto (in each case excluding exhibits
other than this Agreement and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required
at any time after the Effective Time in connection with the
offering or sale of the Stock or any other securities relating
thereto and if at such time any events shall have occurred as
a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to
comply with the Securities Act, to notify the Representatives
and, upon their request, to file such document and to prepare
and furnish without charge to each Underwriter and to
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any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or
omission or effect such compliance.
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the judgment of
the Company or the Representatives, be required by the
Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any
amendment to the Registration Statement or supplement to the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules
and Regulations, to furnish a copy thereof to the
Representatives and counsel for the Underwriters and obtain
the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective
Date, to make generally available to the Company's security
holders and to deliver to the Representatives an earnings
statement of the Company (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the
Effective Date, to furnish to the Representatives copies of
all materials furnished by the Company to its shareholders and
all public reports and all reports and financial statements
furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(h) For a period of five years following the
Effective Date, promptly from time to time to take such action
as the Representatives may reasonably request to qualify the
Stock for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Stock; provided
that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) For a period of 180 days from the Effective
Date, not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or
securities convertible into or exchangeable for Common Stock
(other than the Stock and shares issued pursuant to employee
benefit plans, qualified
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stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently
outstanding contractual obligations, options, warrants or
rights), or sell or grant options, rights or warrants with
respect to any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than
the grant of options pursuant to option plans existing on the
date hereof or pursuant to currently outstanding contractual
obligations), or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, in
each case without the prior written consent of Xxxxxx Brothers
Inc.; provided that notwithstanding the foregoing, in
connection with corporate partnerships and other collaborative
arrangements that the Company may enter into during such 180
day period, the Company shall be allowed to issue, offer for
sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) shares of Common Stock and securities
convertible into or exchangeable for Common Stock, and to sell
or grant options, rights, or warrants with respect to shares
of Common Stock and securities convertible into or
exchangeable for Common Stock to such corporate partners or
collaborators, or designees thereof, without the prior written
consent of Xxxxxx Brothers Inc.; provided further, that any
such corporate partner or collaborator, or designee thereof,
will be bound by and subject to the restrictions set forth in
this Section 5(i) for the remainder of such 180 day period;
(j) To cause each officer, director and
stockholder holding more than 1% of the outstanding securities
of the Company to furnish to the Representatives, prior to the
First Delivery Date, a letter or letters, in form and
substance reasonably satisfactory to counsel for the
Underwriters, pursuant to which each such person shall agree
not to offer, sell, contract to sell, make any short sale
(including, but not limited to, a "short against the box"),
pledge, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or
exchangeable for Common Stock for a period of 180 days from
the Effective Date, without the prior written consent of
Xxxxxx Brothers Inc.;
(k) Prior to the Effective Date, to apply for the
inclusion of the Stock on the Nasdaq National Market System
and to use its best efforts to complete that listing, subject
only to official notice of issuance, prior to the First
Delivery Date;
(l) To apply the net proceeds from the sale of
the Stock being sold by the Company as set forth in the
Prospectus; and
(m) To take such reasonable steps as shall be
necessary to ensure that the Company shall not become an
"investment company" within the meaning of
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such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Stock and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the Stock; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Stock; (f) any applicable
listing or other fees; (g) the fees and expenses of qualifying the Stock under
the securities laws of the several jurisdictions as provided in Section 5(h)
and of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters); (h) all costs and
expenses of the Underwriters, including the fees and disbursements of counsel
for the Underwriters, incident to the offer and sale of shares of the Stock by
the Underwriters to employees and persons having business relationships with
the Company and its subsidiaries, as described in Section 3; and (i) all other
costs and expenses incident to the performance of the obligations of the
Company under this Agreement; provided that, except as provided in this Section
6 and in Section 11 the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the
Stock made by the Underwriters.
7. Conditions of Underwriters' Obligations. The
respective obligations of the Underwriters hereunder are subject to the
accuracy, when made and on each Delivery Date, of the representations and
warranties of the Company contained herein, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed
with the Commission in accordance with Section 5(a); no stop
order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the
Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to such Delivery Date
that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Xxxxxx Godward LLP, counsel
for the Underwriters, is material or omits to state a fact
which, in the opinion of such
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counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and validity of
this Agreement, the Stock, the Registration Statement and the
Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel
for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Venture Law Group shall have furnished to the
Representatives its written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the
counsel for the Underwriters, 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 state of
Delaware, is duly qualified to do business and is
validly existing as a foreign corporation in each
jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification, except for jurisdictions in which the
failure to so qualify would not in the aggregate have
a material adverse effect on the Company. The
Company has all requisite corporate authority
necessary to own or hold its properties and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued and outstanding shares of capital
stock of the Company have been duly and validly
authorized and issued, are fully paid and
non-assessable and conform in all material respects
to the description thereof contained in the
Prospectus, and the shares of Stock being delivered
on such Delivery Date have been duly and validly
authorized and, when delivered by the Company in
accordance with the terms hereof, will be duly and
validly issued, fully paid and non-assessable and
conform in all material respects to the description
thereof contained in the Prospectus;
(iii) There are no preemptive or other
rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any
shares of the Stock pursuant to the Company's charter
or by-laws or any agreement or other instrument known
to such counsel;
(iv) To such counsel's knowledge and
other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which
the Company is a party or of which any property or
assets of the
12.
13
Company is the subject which are required to be
described in the Prospectus and which are not so
described; and, to such counsel's knowledge, no such
proceedings are threatened by governmental
authorities or others;
(v) The Registration Statement was
declared effective under the Securities Act as of the
date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and, to such counsel's knowledge,
no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such
counsel's knowledge, no proceeding for that purpose
is pending or threatened by the Commission;
(vi) The Registration Statement and the
Prospectus and any further amendments or supplements
thereto made by the Company prior to such Delivery
Date (other than the financial statements (including
supporting schedules) and financial data derived
therefrom, and other financial data and statistical
information included therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(vii) The statements (a) in the Prospectus
under captions "Certain Transactions," "Description of
Capital Stock" and "Shares Eligible for Future Sale,"
and (b) in the Registration Statement in Part II,
Items 14 and 15, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings set forth therein, fairly
present in all material respects the information
called for with respect to such legal matters,
documents and proceedings and fairly summarize in all
material respects the matters referred to therein;
(viii) To such counsel's knowledge, there
are no contracts or other documents which are
required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the
Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations;
(ix) This Agreement has been duly
authorized, executed and delivered by the Company;
(x) The issue and sale of the shares of
Stock being delivered on such Delivery Date by the
Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation
of the
13.
14
transactions contemplated hereby (other than the
indemnification and contribution obligations of the
Company hereunder, as to which such counsel need
express no opinion) will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which the Company is a party or by which the
Company is bound or to which any of the property or
assets of the Company is subject and which is filed
as an exhibit to the Registration Statement, nor will
such actions result in any violation of the
provisions of the charter or by-laws of the Company
or any statute, order, rule or regulation known to
such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of
its properties or assets; and, except for the
registration of the Stock under the Securities Act
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this Agreement
by the Company and the consummation of the
transactions contemplated hereby; and
(xi) To the best of such counsel's
knowledge, except as described in the Prospectus,
there are no contracts, agreements or understandings
between the Company and any person granting such
person the right (other than rights which have been
waived or satisfied) to require the Company to file a
registration statement under the Securities Act with
respect to any securities of the Company owned or to
be owned by such person or to require the Company to
include such securities in the securities registered
pursuant to the Registration Statement or in any
securities being registered pursuant to any other
registration statement filed by the Company under the
Securities Act.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of
the United States of America, the laws of the State of
Washington and the General Corporation Law of the State of
Delaware and that such counsel is not admitted in the State of
Delaware. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the
Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to
the effect that (x) such counsel has acted as counsel to the
Company on a regular basis (although the Company is also
represented by its Corporate Counsel and, with respect to
patent and certain other intellectual property matters by
other outside counsel), has acted as counsel to the Company in
connection with previous financing transactions and has acted
as counsel to the Company in connection with the preparation
of the
14.
15
Registration Statement, and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead it
to believe that the Registration Statement, as of the
Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances in which they were made, not
misleading (except with respect to the financial statements
(including supporting schedules) and financial data derived
therefrom, and other financial data and statistical
information included therein, as to which no such statement
need be expressed), or that the Prospectus contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading (except with respect to
the financial statements (including supporting schedules) and
financial data derived therefrom, and other financial data and
statistical information included therein, as to which no such
statement need be expressed). The foregoing opinion and
statement may be qualified by a statement to the effect that
such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus except for the
statements made in the Prospectus under the captions "Shares
Eligible For Future Sale" and "Description of Capital Stock",
insofar as such statements relate to the Stock and concern
legal matters.
(e) Seed and Xxxxx LLP shall have furnished to
the Representatives its written opinion as patent counsel to
the Company addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) the statements in the Registration
Statement and the Prospectus under the captions "Risk
Factors -- Dependence on Proprietary Technology and
Uncertainty of Patent Protection" and "Business --
Patents and Proprietary Technology" and certain
specified statements under the caption "Business"
generally, to the extent such statements constitute a
description or summary of the legal matters, documents
or proceedings relating to patent matters on which
such counsel has represented the Company (the
"Representation") and to the extent such legal
matters, documents or proceedings have been disclosed
to such counsel, are accurate and complete statements
and nothing has come to such counsel's attention that
causes such counsel to believe that such sections of
the Registration Statement and the Prospectus contain
any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading;
(ii) to the best of such counsel's
knowledge there are no legal or governmental
proceedings pending relating to patent rights, trade
15.
16
secrets, trademarks, service marks or other
proprietary information or materials of the Company,
and to the best of such counsel's knowledge no such
proceedings are threatened or contemplated by
governmental authorities or others;
(iii) based solely upon a review of
matters which counsel has been engaged to provide
direct substantive attention, such counsel has no
reason to believe that the Company is infringing or
otherwise violating any patents, trade secrets,
trademarks, service marks or other proprietary rights
of others, and to the best of such counsel's
knowledge there are no infringements by others of any
of the Company's patents, trade secrets, trademarks,
service marks or other proprietary information or
materials which in the judgment of such counsel could
affect materially the use thereof by the Company; and
(iv) based solely upon a review of
matters which counsel has been engaged to provide
direct substantive attention, such counsel has no
reason to believe that the Company does not own or
possess adequate licenses or other rights to use all
material patents, patent applications and trademarks
described in the Prospectus and necessary to conduct
the business now being conducted by the Company as
described in the Prospectus.
(f) The Representatives shall have received from
Xxxxxx Godward LLP, counsel for the Underwriters, such opinion
or opinions, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement,
the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass
upon such matters.
(g) At the time of execution of this Agreement,
the Representatives shall have received from Ernst & Young
LLP, a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial
information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection
with registered public offerings.
16.
17
(h) With respect to the letter of referred to in
the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the
"initial letter"), the Company shall have furnished to the
Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in
the initial letter.
(i) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of
its Chairman of the Board, its President or a Vice President
and its Vice President of Finance and Administration stating
that:
(i) The representations, warranties and
agreements of the Company in Section 1 are true and
correct as of such Delivery Date; the Company has
complied with all its agreements contained herein;
and the conditions set forth in Sections 7(a) and
7(j) have been fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include
any untrue statement of a material fact and did not
omit to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading, and (B) since the Effective Date no
event has occurred which should have been set forth
in a supplement or amendment to the Registration
Statement or the Prospectus.
(j) (i) The Company shall not have sustained
since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii)
since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any change,
or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus,
the
17.
18
effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Stock
being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of
this Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
generally established on any such exchange or such market by
the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a
general banking moratorium shall have been declared by Federal
or New York or Washington State authorities, (iii) the United
States shall have become engaged in active hostilities, there
shall have been an escalation in active hostilities involving
the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of
a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public
offering or delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in
the Prospectus.
(l) The Nasdaq National Market System shall have
approved the Stock for inclusion, subject only to official
notice of issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless
each Underwriter its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock),
to which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact
18.
19
contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the
purpose of qualifying any or all of the Stock under the
securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called
a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to,
the Stock or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company
shall not be liable under this clause (iii) to the extent that
it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or
in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein pursuant to
Section 8(e) hereof; provided further, that the indemnity
agreement provided in this Section 8(a) with respect to any
Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage,
liability or action based upon any untrue statement or alleged
untrue statement of material fact or omission or alleged
omission to state therein a material fact purchased Stock, if
a copy of the Prospectus in which such untrue statement or
alleged untrue statement or omission or alleged omission was
corrected has not been sent or given to such person within the
time required by the Securities Act and the Rules and
Regulations thereunder unless the failure to deliver the
corrected Prospectus is the result of noncompliance by the
Company with Section 5(c) hereof. The foregoing indemnity
agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or to any officer,
employee or controlling person of that Underwriter.
19.
20
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, each of its
officers and employees, each of its directors, and each
person, if any, who controls the Company within the meaning of
the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer,
employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment
or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter furnished
to the Company through the Representatives by or on behalf of
that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer, employee
or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by the Company or any such
director, officer, employee or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified
party under this Section 8 of notice of any claim or the
commencement of any action, the indemnified party shall, 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 claim or the commencement
of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 8 for any legal or
20.
21
other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to
represent jointly the Representatives and those other
Underwriters and their respective officers, employees and
controlling persons who may be subject to liability arising
out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under this Section 8
if, in the reasonable judgment of the Representatives, it is
advisable for the Representatives and those Underwriters,
officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent
shall not be unreasonably withheld), 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 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, or (ii) be liable for any settlement of any such
action effected without its prior written consent (which
consent shall not be unreasonably withheld), but if settled
with the consent of the indemnifying party or if there be a
final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be 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 Stock or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses)
received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Stock purchased
under this
21.
22
Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Stock under this
Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to
this Section 8(d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 8(d) shall
be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the Stock underwritten by it
and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting
obligations and not joint.
(e) The Representatives, on behalf of the several
Underwriters, severally represent and warrant to the Company
that (a) the statements with respect to the public offering of
the Stock by the Underwriters set forth on the cover page of
and the legend concerning over-allotments on the inside front
cover page of the Prospectus, (b) the information set forth in
the first, second and sixth paragraphs under the caption
"Underwriting" in the Prospectus and (c) the information with
respect to over-allotments and stabilization set forth in the
eighth paragraph and the first and second sentences of the
ninth paragraph under the caption "Underwriting" in the
Prospectus (collectively the "Underwriter Information") is
correct and constitutes the only information concerning such
Underwriters furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus. The Company
acknowledges that it has received the Underwriter Information.
The Representatives represent and warrant that they have been
authorized by each of the other Underwriters as the
Representatives to enter into this Agreement on its behalf and
to act for it in the manner herein provided.
22.
23
9. Defaulting Underwriters. If, on either Delivery Date,
any Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Stock which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number
of shares of the Firm Stock set opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 hereto bears to the total number of
shares of the Firm Stock set opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Stock on such Delivery Date if the total number of shares of the Stock
which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 9.09% of the total number of shares of the Stock to be
purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of shares of
the Stock which it agreed to purchase on such Delivery Date pursuant to the
terms of Section 2. If the foregoing maximum is exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Stock
to be purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Company to sell, the Option Stock) shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses to the extent set forth
in Sections 6 and 11. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Firm Stock which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Stock of a defaulting or withdrawing Underwriter, either the Representatives or
the Company may postpone the Delivery Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for the Company
or counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives by notice given to and
received by the Company prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 7(j) or 7(k), shall
have occurred or if the Underwriters shall decline to purchase the Stock for
any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Stock for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because
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any other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Stock, and upon demand the Company
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 10 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant
to Section 11(d), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
Xxxxxxxx Xxxxxx (Fax: 000-000-0000).
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf
of the Representatives.
13. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers and employees of the
Company and any person controlling the Company within the meaning of Section 15
of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 16, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
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14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Term "Business Day". For purposes
of this Agreement, "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
16. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between
the Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CORIXA CORPORATION
By _____________________________________
Xxxxxx Xxxxxx, Ph.D.
President and Chief Executive Officer
Accepted:
XXXXXX BROTHERS INC.
INVEMED ASSOCIATES, INC.
VECTOR SECURITIES
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By _____________________________
Authorized Representative
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SCHEDULE 1
Number of
Underwriters Shares
------------ ---------
Xxxxxx Brothers Inc.
Invemed Associates, Inc.
Vector Securities
---------
Total
---------
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