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EXHIBIT 1.1
2,250,000 Shares
Common Stock
($.001 Par Value)
UNDERWRITING AGREEMENT
______ __, 2000
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UNDERWRITING AGREEMENT
, 2000
WARBURG DILLON READ LLC
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
Pacific Growth Equities, Inc.
as Managing Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Corixa Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell and Interwest Investors LP ("Interwest") proposes to sell to the
underwriters named in Schedule A annexed hereto (the "Underwriters") an
aggregate of 2,250,000 shares (the "Firm Shares") of Common Stock, $.001 par
value (the "Common Stock"), of the Company, of which 2,000,000 shares are to be
issued and sold by the Company and an aggregate of 250,000 shares are to be sold
by Interwest in the respective amounts set forth under the caption "Firm Shares"
in Schedule B annexed hereto. In addition, solely for the purpose of covering
over-allotments, the Company and the persons named in Schedule B annexed hereto
(the "Selling Stockholders") propose to grant to the Underwriters the option to
purchase from the Company and the Selling Stockholders up to an additional
337,500 shares of Common Stock (the "Additional Shares") in the respective
amounts set forth under the caption "Additional Shares" in Schedule B hereto.
The Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares." The Shares are described in the Prospectus which is
referred to below.
The Company has filed, in accordance with the provisions of the Securities Act
of 1933, as amended, and the rules and regulations thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the Commission)
a registration statement on Form S-3, (File No.[333-XXX]) including a
prospectus, relating to the Shares, which incorporates by reference documents
which the Company has filed in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). The Company has furnished to you, for
use by the Underwriters and by dealers, copies of one or more preliminary
prospectuses and the documents incorporated by reference therein (each thereof,
including the documents incorporated therein by reference, being herein called a
"Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement, as amended when it becomes
effective, including all documents filed as a part thereof or incorporated by
reference therein, and including any information contained in a prospectus
subsequently filed with the Commission pursuant to Rule 424(b) under the Act and
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430(A) under the Act and also including any registration
statement filed pursuant to Rule 462(b) under the Act, is herein called the
Registration
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Statement, and the prospectus, including all documents incorporated therein by
reference, in the form filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is herein called the Prospectus.
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company and Interwest, severally and not jointly, agree to sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company and Interwest the respective number of Firm
Shares (subject to such adjustment as you may determine to avoid fractional
shares) which bears the same proportion to the number of Firm Shares to be sold
by the Company or by Interwest, as the case may be, as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule A annexed hereto
bears to the total number of Firm Shares to be sold by the Company and
Interwest, in each case at a purchase price of $[_____] per Share. The Company
and Interwest are advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the public offering to such extent as you may determine.
In addition, the Company and the Selling Stockholders listed on Schedule B
hereto hereby grant to the several Underwriters the option to purchase, and upon
the basis of the warranties and representations and subject to the terms and
conditions herein set forth, the Underwriters shall have the right to purchase,
severally and not jointly, from the Company and the Selling Stockholders listed
on Schedule B hereto, ratably in accordance with the number of Firm Shares to be
purchased by each of them (subject to such adjustment as you shall determine to
avoid fractional shares), all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company and Interwest for the Firm Shares. This option may be exercised
by you on behalf of the several Underwriters at any time (but not more than
once) on or before the thirtieth day following the date hereof, by written
notice to the Company and the Selling Stockholders listed on Schedule B hereto].
Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised, and the date and time when the Additional
Shares are to be delivered (such date and time being herein referred to as the
additional time of purchase); provided, however, that the additional time of
purchase shall not be earlier than the time of purchase (as defined below) nor
earlier than the second business day(1) after the date on which the option shall
have been exercised nor later than the tenth business day after the date on
which the option shall have been exercised. The number
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(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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of Additional Shares to be sold to each Underwriter shall be the number which
bears the same proportion to the aggregate number of Additional Shares being
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares).
Pursuant to powers of attorney, which shall be satisfactory to counsel
for the Underwriters, granted by each Selling Stockholder, [________] and
[________] will act as representatives of the Selling Stockholders. The
foregoing representatives (the "Representatives of the Selling Stockholders")
are authorized, on behalf of each Selling Stockholder, to execute any documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by each Selling Stockholder, to make delivery of the certificates of
such Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom the expenses to be borne by each
Selling Stockholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling Stockholder
in proportion to the number of Shares sold by each Selling Stockholder, to
receive notices on behalf of each Selling Stockholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and Interwest by Federal Funds wire
transfer, against delivery of the certificates for the Firm Shares to you
through the facilities of the Depository Trust Company (DTC) for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 10:00
A.M., New York City time, on [________], 2000 (unless another time shall be
agreed to by you, the Company and the Representatives of the Selling
Stockholders or unless postponed in accordance with the provisions of Section 10
hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the time of purchase. For the purpose of expediting the checking of
the certificates for the Firm Shares by you, the Company and the Selling
Stockholders agree to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company and the Selling Stockholders
listed on Schedule B hereto agree to make such certificates available to you for
such purpose at least one full business day preceding the additional time of
purchase.
3. Representations and Warranties of the Company. The Company represents
and warrants to each of the Underwriters that:
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(a) the Company has not received, and has no notice of, any order
of the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act when the Registration
Statement becomes effective, the Registration Statement and the
Prospectus will fully comply in all material respects with the
provisions of the Act, and the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement have been so
described or filed; provided, however, that the Company makes no
warranty or representation with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus; the
documents incorporated by reference in the Prospectus, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the Exchange Act, and do not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
and the Company has not distributed any offering material in connection
with the offering or sale of the Shares other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or any other
materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase and the
additional time of purchase, as the case may be, the Company shall have
an authorized capitalization as set forth under the heading entitled "As
Adjusted" in the section of the Registration Statement and the
Prospectus entitled "Capitalization"; all of the issued and outstanding
shares of capital stock including Common Stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable , have been issued in compliance with all federal and
state securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right;
(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, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or
leasing of its properties or the
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conduct of its business requires such qualification, except where the
failure to so qualify would not have a material adverse effect on the
business, properties, financial condition or results of operation of the
Company and its Subsidiaries (as hereinafter defined) taken as a whole
(a "Material Adverse Effect"). The Company has no subsidiaries (as
defined in the Rules and Regulations) other than Chinook (the
"Subsidiary"); other than the Subsidiary, the Company does not own,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest
in any firm, partnership, joint venture, association or other entity;
complete and correct copies of the certificates of incorporation and of
the bylaws of the Company and the Subsidiary and all amendments thereto
have been delivered to you, and except as set forth in the exhibits to
the Registration Statement no changes therein will be made subsequent to
the date hereof and prior to the Closing Date or, if later, the Option
Closing Date; the Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement; the Subsidiary is
duly qualified to do business as a foreign corporation in good standing
in each jurisdiction where the ownership or leasing of the properties or
the conduct of its business requires such qualification, except where
the failure to so qualify would not have a Material Adverse Effect; all
of the outstanding shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable
and (except as otherwise described in this Section 3(d)) are owned by
the Company subject to no security interest, other encumbrance or
adverse claims; no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiary are outstanding.
(e) the Company and the Subsidiary are duly qualified or licensed
by and are in good standing in each jurisdiction in which they conduct
their respective businesses and in which the failure, individually or in
the aggregate, to be so licensed or qualified could have a material
adverse effect on the operations, business, condition, prospects or
property of the Company and the Subsidiary, taken as a whole (a
"Material Advisory Effect"); and the Company and the Subsidiary are in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions;
(f) neither the Company nor the Subsidiary is in breach of, or in
default under (nor has any event occurred which with notice, lapse of
time, or both would result in any breach of, or constitute a default
under), its respective charter or by-laws or in the performance or
observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any lease, Contract or other
agreement or instrument to which the Company or the Subsidiary is a
party or by which either of them or any of their properties is bound,
and the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the transactions
contemplated hereby will not conflict with, or result in any breach of
or constitute a default under (nor constitute any event which with
notice, lapse of time, or both would result in any breach
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of, or constitute a default under), any provisions of the charter or
by-laws, of the Company or the Subsidiary or under any provision of any
license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, Contract or
other agreement or instrument to which the Company or the Subsidiary is
a party or by which any of them or their respective properties may be
bound or affected, or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the
Company or the Subsidiary;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms;
(h) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus and the certificates for
the Shares are in due and proper form and the holders of the Shares will
not be subject to personal liability by reason of being such holders;
(i) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable;
(j) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares or the consummation by the Company of
the transaction as contemplated hereby other than registration of the
Shares under the Act and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or under the rules and
regulations of the National Association of Securities Dealers, Inc.
(NASD);
(k) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares
of capital stock of the Company upon the issue and sale of the Shares to
the Underwriters hereunder, nor does any person have preemptive rights,
co-sale rights, rights of first refusal or other rights to purchase any
of the Shares other than those that have been expressly waived prior to
the dates hereof;
(l) Ernst & Young, LLP, whose report on the consolidated
financial statements of the Company and its Subsidiaries is filed with
the Commission as part of the Registration Statement and Prospectus, are
independent public accountants as required by the Act;
(m) each of the Company and the Subsidiary has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
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respective business; neither the Company nor the Subsidiary is in
violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the
Company or the Subsidiary the effect of which could have a Material
Adverse Effect;
(n) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(o) there are no actions, suits, claims, investigations or
proceedings pending or threatened to which the Company or the Subsidiary
or any of their respective officers is a party or of which any of their
respective properties is subject at law or in equity, or before or by
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which could result in a
judgment, decree or order having a Material Adverse Effect or
consummation of the transaction contemplated hereby;
(p) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and the Subsidiary as of the dates indicated and
the consolidated results of operations and cash flows of the Company and
the Subsidiary for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any material adverse change, or any development which, in the
Company's reasonable judgment, is likely to cause a material adverse
change, in the business, properties or assets described or referred to
in the Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company and the
Subsidiary taken as a whole, (ii) any transaction which is material to
the Company or the Subsidiary, except transactions in the ordinary
course of business, (iii) any obligation, direct or contingent, which is
material to the Company and the Subsidiary taken as a whole, incurred by
the Company or the Subsidiary, except obligations incurred in the
ordinary course of business, (iv) any change in the capital stock or
outstanding indebtedness of the Company or the Subsidiary or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company. Neither the Company nor the Subsidiary has
any material contingent obligation which is not disclosed in the
Registration Statement.
(r) the Company has obtained the agreement of each of the Selling
Stockholders and of each of its directors and officers and certain of
its other stockholders not to sell, offer to sell, contract to sell,
hypothecate grant any option to sell or otherwise dispose of, directly
or indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to purchase
Common Stock for a period of 90 days after the date of the Prospectus;
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(s) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act");
4. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder (which for purposes of this Agreement, unless the context
requires otherwise, shall include Interwest), severally and not jointly,
represents and warrants to each Underwriter that:
(a) such Selling Stockholder now is and at the time of delivery
of such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will be, the lawful owner of the number of
Shares to be sold by such Selling Stockholder pursuant to this Agreement
and has and, at the time of delivery thereof, will have valid and
marketable title to such Shares, and upon delivery of and payment for
such Shares (whether at the time of purchase or the additional time of
purchase, as the case may be), the Underwriters will acquire valid and
marketable title to such Shares free and clear of any claim, lien,
encumbrance, security interest, community property right, restriction on
transfer or other defect in title;
(b) such Selling Stockholder has and at the time of delivery of
such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will have, full legal right, power and
capacity, and any approval required by law (other than those imposed by
the Act and the securities or blue sky laws of certain jurisdictions),
to sell, assign, transfer and deliver such Shares in the manner provided
in this Agreement;
(c) this Agreement and the Custody Agreement among [__________],
as custodian, and the Selling Stockholders (the "Custody Agreement")
have been duly executed and delivered by such Selling Stockholder and
each is a legal, valid and binding agreement of such Selling Stockholder
enforceable in accordance with its terms;
(d) when the Registration Statement becomes effective and at all
times subsequent thereto through the latest of the time of purchase,
additional time of purchase or the termination of the offering of the
Shares, the Registration Statement and Prospectus, and any supplements
or amendments thereto as relate to such Selling Stockholder will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(e) such Selling Stockholder has duly and irrevocably authorized
the Representatives of the Selling Stockholders, on behalf of such
Selling Stockholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions
contemplated thereby and to deliver the Shares to be sold by such
Selling Stockholder and receive payment therefor pursuant hereto; and
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(f) the sale of such Selling Stockholder's Shares pursuant to
this Agreement is not prompted by any information concerning the Company
which is not set forth in the Prospectus.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Shares); and to
promptly advise you 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;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated
by the Act; in case any Underwriter is required to deliver a prospectus
within the nine-month period referred to in Section 10(a)(3) of the Act
in connection with the sale of the Shares, the Company will prepare
promptly upon request, but at the expense of such Underwriter, such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as soon
as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or Prospectus including by filing
any documents that would be incorporated therein by reference and to
file no such amendment or supplement to which you shall object in
writing;
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(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the shares, and
to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its stockholders or shall from time to time publish or
publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar form as may be designated by the Commission, (iii) copies
of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company or
its Subsidiaries, in each case as soon as such communications, documents
or information becomes available;
(h) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which,
in the judgment of the Company, would require the making of any change
in the Prospectus then being used, or in the information incorporated
therein by reference, so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they are made, not misleading, and, during such time, to prepare
and furnish, at the Company's expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be necessary to
reflect any such change and to furnish you a copy of such proposed
amendment or supplement before filing any such amendment or supplement
with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement
(as defined in Rule 158(c) of the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but not
later than [_________, 200__];
(j) to furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and of cash flow of the
Company for such fiscal year, accompanied by a copy of the certificate
or report thereon of nationally recognized independent certified public
accountants;
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(k) to furnish to you 5 signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto and documents incorporated by
reference therein) and sufficient conformed copies of the foregoing
(other than exhibits) for distribution of a copy to each of the other
Underwriters;
(l) to furnish to you as early as practicable prior to the time
of purchase and the additional time of purchase, as the case may be, but
not later than two business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements, if any,
of the Company and the Subsidiary which have been read by the Company's
independent certified public accountants, as stated in their letter to
be furnished pursuant to Section 8(c) hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (f) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act;
(o) not to sell, offer or agree to sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock or permit the registration under the Act of any shares of
Common Stock, except for the registration of the Shares and the sales to
the Underwriters pursuant to this Agreement and except for issuances of
Common Stock upon the exercise of outstanding options, warrants and
debentures, for a period of 90 days after the date hereof, without the
prior written consent of the WDR; and
(p) to use its best efforts to cause the Common Stock to be
listed for quotation on the National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ").
6. Certain Covenants of the Company and the Selling Stockholders. The
Company and each of the Selling Stockholders agree with each Underwriter as
follows:
(a) the Company and the Selling Stockholders, in such proportions
(aggregating 100%) as the number of Shares to be sold by the Company and
by each such Selling Stockholder bears to the total number of Shares or
as they otherwise may determine among themselves, will pay all expenses,
fees and taxes (other than any transfer taxes and fees and disbursements
of counsel for the Underwriters except as set forth under Section 7
hereof or (iii) or (iv) below) in connection with (i) the preparation
and filing of the Registration Statement, each Preliminary Prospectus,
the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment),
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(ii) the issuance, sale and delivery of the Shares by the Company and
the Selling Stockholders, (iii) the word processing and/or printing of
this Agreement, any Agreement Among Underwriters, any dealer agreements,
any Statements of Information, the Custody Agreement and the Powers of
Attorney and the reproduction and/or printing and furnishing of copies
of each thereof to the Underwriters and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering
and sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel to the Underwriters) and
the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) any listing
of the Shares on any securities exchange or qualification of the Shares
for quotation on NASDAQ and any registration thereof under the Exchange
Act, (vi) the filing for review of the public offering of the Shares by
the National Association of Securities Dealers, Inc. (the NASD), and
(vii) the performance of the Company's and the Selling Stockholders'
other obligations hereunder; and
(b) the Company and the Selling Stockholders will not issue,
sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase
Common Stock or, in the case of the Company, permit the registration
under the Act of any shares of Common Stock, except for the registration
of the Shares and the sales to the Underwriters pursuant to this
Agreement and except for issuances of Common Stock upon the exercise of
outstanding options, warrants and debentures, for a period of 90 days
after the date of the Prospectus, without the prior written consent of
the Managing Underwriters.
7. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 10 hereof or the default by one or more
of the Underwriters in its or their respective obligations hereunder, the
Company shall, in addition to paying the amounts described in Section 6(a)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at the additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Stockholders on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase, as the case may be), the
performance by the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Venture Law Group, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase
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or the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters and in form satisfactory to
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Underwriters, stating 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, with full corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus, to
execute and deliver this Agreement and to issue, sell and deliver
the Shares as herein contemplated;
(ii) the Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation with full corporate
power and authority to own, lease and operate its respective
properties and to conduct its respective business;
(iii) the Company and the Subsidiary are duly qualified or
licensed by each jurisdiction in which they conduct their
respective businesses and in which the failure, individually or
in the aggregate, to be so licensed or qualified could have a
Material Adverse Effect and the Company and the Subsidiary are
duly qualified, and are in good standing, in each jurisdiction in
which they own or lease real property or maintain an office and
in which such qualification is necessary;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares have been duly authorized and, when issued
and delivered to and paid for by the Underwriters, will be duly
and validly and issued and will be fully paid and non-assessable;
(vi) the Company has an authorized capitalization as set
forth in the Registration Statement and the Prospectus; the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued, and are fully paid,
nonassessable and free of statutory and contractual preemptive
rights; the Shares when issued will be free of statutory and
contractual preemptive rights, resale rights, rights of first
refusal and similar rights; the certificates for the Shares are
in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(vii) other than the Subsidiary, the Company does not own or
control, directly or indirectly, any corporation, association or
other entity; the Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with full corporate
power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration
Statement; the Subsidiary is duly
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qualified to do business as a foreign corporation in good
standing in each jurisdiction where the ownership or leasing of
the properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not
have a Material Adverse Effect; all of the outstanding shares of
capital stock of the Subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and, except as
otherwise stated in the Registration Statement, are owned by the
Company, in each case subject to no security interest, other
encumbrance or adverse claim; to the best of such counsel's
knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership
interests in the Subsidiary are outstanding;
(viii) the capital stock of the Company, including the
Shares, conforms to the description thereof contained in the
Registration Statement and Prospectus;
(ix) the Registration Statement and the Prospectus (except
as to the financial statements and schedules and other financial
and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
Act;
(x) the Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop
order proceedings with respect thereto are pending or threatened
under the Act and any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424 under the Act has been
made in the manner and within the time period required by such
Rule 424;
(xi) no approval, authorization, consent or order of or
filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the Shares
and consummation by the Company of the transaction as
contemplated hereby other than registration of the Shares under
the Act (except such counsel need express no opinion as to any
necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being
offered by the Underwriters);
(xii) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not conflict
with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time, or
both, would result in any breach of or constitute a default
under), any provisions of the charter or by-laws of the Company
or the Subsidiary or under any provision of any license,
indenture, mortgage, deed of trust, bank loan, credit agreement
or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or the
Subsidiary is a party or by which any of them or their respective
properties may be bound or affected, or
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under any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the Company
or the Subsidiary;
(xiii) to the best of such counsel's knowledge, neither
the Company nor the Subsidiary is in violation of its charter or
by-laws or is in breach of, or in default under (nor has any
event occurred which with notice, lapse of time, or both would
result in any breach of, or constitute a default under), any
license, indenture, mortgage, deed of trust, bank loan or any
other agreement or instrument to which the Company or the
Subsidiary is a party or by which either of them or their
respective properties may be bound or affected or under any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or the
Subsidiary;
(xiv) to the best of such counsel's knowledge, there are
no contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Prospectus which have not been so filed, summarized or described;
(xv) to the best of such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending,
threatened or contemplated to which the Company or the Subsidiary
is subject or of which any of their respective properties, is
subject at law or in equity or before or by any federal, state,
local or foreign governmental or regulatory commission, board,
body, authority or agency which are required to be described in
the Prospectus but are not so described;
(xvi) the documents incorporated by reference in the
Registration Statement and Prospectus, when they became effective
were filed (or, if an amendment with respect to any such document
was filed when such amendment was filed) with the Commission,
complied as to form in all material respects with the Exchange
Act (except as to the financial statements and schedules and
other financial and statistical data contained or incorporated by
reference therein as to which such counsel need express no
opinion);
(xvii) the Company will not, upon consummation of the
transactions contemplated by this Agreement, be an "investment
company," or a "promoter" or "principal underwriter" for, a
"registered investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(xviii) such counsel have participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the
contents of the Registration Statement and Prospectus were
discussed and, although such counsel is not passing upon and does
not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in
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subparagraphs (vi) and (viii) above), on the basis of the
foregoing nothing has come to the attention of such counsel that
causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or
amendment became effective contained an 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 or any supplement thereto at
the date of such Prospectus or such supplement, and at all times
up to and including the time of purchase or additional time of
purchase, as the case may be, contained an 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, in
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules
and other financial and statistical data included in the
Registration Statement or Prospectus).
(b) The Selling Stockholders shall furnish to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Venture Law Group, counsel for the Selling Stockholders,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters, and in form and substance
satisfactory to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel for the Underwriters, stating that:
(i) this Agreement and the Custody Agreement have been
duly executed and delivered by or on behalf of each of the
Selling Stockholders;
(ii) each Selling Stockholder has full legal right and
power, and has obtained any authorization or approval required by
law (other than those imposed by the Act and the securities or
blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided in this Agreement;
(iii) delivery of certificates for the Shares by each
Selling Stockholder pursuant hereto will pass valid and
marketable title thereto to the Underwriters, free and clear of
any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title;
(iv) each of the Representatives of the Selling
Stockholders has been duly authorized by each Selling Stockholder
to execute and deliver on behalf of such Selling Stockholder this
Agreement and any other document necessary or desirable in
connection with the transactions contemplated hereby and to
deliver the Shares to be sold by such Selling Stockholder; and
(v) to the best of such counsel's knowledge, the
statements in the Prospectus under the caption "Principal and
selling stockholders" insofar as such statements constitute a
summary of the matters referred to therein present fairly the
information called for with respect to such matters.
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(c) You shall have received from Ernst & Young, LLP, letters
dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to
the Underwriters (with reproduced copies for each of the Underwriters)
in the forms heretofore approved by the WDR.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Underwriters, dated the time of purchase or the additional time of
purchase, as the case may be, as to the matters referred to in
subparagraphs (iv), (v), (viii) (with respect to the Shares only), (ix)
and (x) of paragraph (a) of this Section 8.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the independent
public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement and
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 Prospectus (except as to matters referred to
with respect to the Shares under subparagraph (viii) of paragraph (a) of
this Section 8), on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead them to believe that the Registration Statement
or any amendment thereto at the time such Registration Statement or
amendment became effective contained an 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 of its date or any supplement thereto as of its date
contained an 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, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express
no comment with respect to the financial statements and schedules and
other financial and statistical data included in the Registration
Statement or Prospectus).
(e) No amendment or supplement to the Registration Statement or
Prospectus, including documents deemed to be incorporated by reference
therein, shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(f) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) under the Act, at or before 5:00
P.M., New York City time, on the date of this Agreement, unless a later
time (but not later than 5:00 P.M., New York City time, on the second
full business day after the date of this Agreement) shall be agreed to
by the Company, the Representatives of the Selling Stockholders and you
in writing or by telephone, confirmed in writing; provided, however,
that the Company, the
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Representatives of the Selling Stockholders and you and any group of
Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
(g) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, (i)
no material and unfavorable change, financial or otherwise (other than
as referred to in the Registration Statement and Prospectus), in the
business, condition or prospects of the Company and its Subsidiaries
taken as a whole shall occur or become known and (ii) no transaction
which is material and unfavorable to the Company shall have been entered
into by the Company or any of its Subsidiaries.
(i) The Company will, at the time of purchase or additional time
of purchase, as the case may be, deliver to you a certificate of two of
its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of each such date, that the Company shall perform such of its
obligations under this Agreement as are to be performed at or before the
time of purchase and at or before the additional time of purchase, as
the case may be and the conditions set forth in paragraphs (g) and (h)
of this Section 8 have been met.
(j) You shall have received signed letters, dated the date of
this Agreement, from each of the Selling Stockholders and each of the
directors and officers of the Company and certain of its other
stockholders to the effect that such persons shall not sell, offer or
agree to sell, contract to sell, grant any option to sell or otherwise
dispose of, directly or indirectly, any shares of Common Stock of the
Company or securities convertible into or exchangeable or exercisable
for Common Stock or warrants or other rights to purchase Common Stock
for a period of 90 days after the date of the Prospectus without WDR's
prior written consent.
(k) The Company and the Selling Stockholders shall have furnished
to you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the time of purchase and the additional time of
purchase, as the case may be, as you may reasonably request.
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(l) The Shares shall have been approved for listing for quotation
on NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(m) The Selling Stockholders will at the time of purchase and the
additional time of purchase, as the case may be deliver to you a
certificate of the Representatives of the Selling Stockholders to the
effect that the representations and the warranties of the Selling
Stockholders as set forth in this Agreement are true and correct as of
each such date.
(n) Between the time of execution of this Agreement and the time
of purchase or additional time of purchase, as the case may be, there
shall not have occurred any downgrading, nor shall any notice or
announcement have been given or made of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate
an improvement, in the rating accorded any securities of or guaranteed
by the Company or the Subsidiary by any "nationally recognized
statistical rating organization", as that term is defined in Rule
436(g)(2) under the Act.
9. Effective Date of Agreement; Termination. This Agreement shall become
effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and Prospectus, (y) there has been any material adverse and unfavorable change,
financial or otherwise (other than as referred to in the Registration Statement
and Prospectus), in the operations, business, condition or prospects of the
Company and its Subsidiary taken as a whole, which would, in your judgment or in
the judgment of such group of Underwriters, make it impracticable to market the
Shares, or (z) there shall have occurred any downgrading, or any notice shall
have been given of (i) any intended or potential downgrading or (ii) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or the Subsidiary by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act or, if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or the NASDAQ National
Market shall have been suspended or limitations or minimum prices shall have
been established on the New York Stock Exchange, the American Stock Exchange or
the NASDAQ National Market or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any material outbreak or escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the
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United States as, in your judgment or in the judgment of such group of
Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 9, the Company, the Representatives of the Selling
Stockholders and each other Underwriter shall be notified promptly by letter or
telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Stockholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Stockholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(a), 7 and 11 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. Subject to Sections 8 and 9,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 9 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set opposite the
names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Selling Stockholders agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters
or by the Company for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Company or you shall have the right to
postpone the time of purchase for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
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The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 10 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part
of the Company to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
11. Indemnity and Contribution.
(a) The Company and the Selling Stockholders jointly and
severally agree to indemnify, defend and hold harmless each Underwriter,
its partners, directors and officers, and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the
Act, the Exchange Act, the Common Law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this
Section 11 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in either such
Registration Statement or Prospectus or necessary to make the statements
made therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf
of any Underwriter through you to the Company expressly for use with
reference to such Underwriter in such Registration Statement or such
Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated in either such Registration Statement or
Prospectus or necessary to make such information not misleading.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company or any Selling Stockholder
pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Company and the Representatives
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of the Selling Stockholders in writing of the institution of such
Proceeding and the Company or such Selling Stockholder, as the case may
be, shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the
omission to so notify the Company or the Representative of the Selling
Stockholders shall not relieve the Company or any Selling Stockholder
from any liability which the Company may have to any Underwriter or any
such person or otherwise. Such Underwriter or such controlling person
shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company or such
Selling Stockholder in connection with the defense of such Proceeding or
the Company or such Selling Stockholder shall not have, within a
reasonable period of time in light of the circumstances employed counsel
to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from, additional to
or in conflict with those available to the Company or such Selling
Stockholder (in which case the Company or such Selling Stockholder shall
not have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company or such Selling Stockholder, as
the case may be, and paid as incurred (it being understood, however,
that the Company or such Selling Stockholder shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties
to such Proceeding). The Company or such Selling Stockholder shall not
be liable for any settlement of any such Proceeding effected without its
written consent but if settled with the written consent of the Company
or such Selling Stockholder, the Company or such Selling Stockholder
agrees to indemnify and hold harmless any Underwriter and any such
person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified
party.
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(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, each Selling
Stockholder and any person who controls the Company or any Selling
Stockholder within the meaning of Section 15 of the Act, or Section 20
of the Exchange Act from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company, any Selling Stockholder or any
such person may incur under the Act, the Exchange Act, or Common Law or
otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration
Statement as amended by or on behalf of any post-effective amendment
thereof by the Company) or in a Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such
Registration Statement or Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company, any Selling
Stockholder or any such person in respect of which indemnity may be
sought against any Underwriter pursuant to the foregoing paragraph, the
Company, such Selling Stockholder or such person shall promptly notify
such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses, provided, however, that the
omission to so notify such Underwriter shall not relieve such
Underwriter, from any liability which such Underwriter may have to the
Company, any Selling Stockholder or any such person or otherwise. The
Company, such Selling Stockholder or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Company, such Selling
Stockholder or such person unless the employment of such counsel shall
have been authorized in writing by such Underwriter in connection with
the defense of such Proceeding or such Underwriter shall not have
employed counsel to have charge of the defense of such Proceeding or
such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from
or additional to or in conflict with those available to such Underwriter
(in which case such Underwriter shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or
parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Underwriter), in any of which events such fees and
expenses shall be borne by such Underwriter and paid as incurred (it
being understood, however, that such Underwriter shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties
to such Proceeding). No Underwriter shall be liable for any settlement
of any such Proceeding effected without the written consent of such
Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company, any
Selling Stockholder and any
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such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such Proceeding.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 11 in respect of any losses, damage, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholders on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportion as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and
the Selling Stockholders and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price is the shares. The relative fault of the Company and the
Selling Stockholders on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Company, by the Selling Stockholders or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, preparing to defend or defending
any claim or Proceeding.
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(d) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 11 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 that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding the
provisions of this Section 11, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage
which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 11
are several in proportion to their respective underwriting commitments
and not joint.
(e) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the
Company and the Selling Stockholders contained in this Agreement shall
remain in full force and effect regardless of any partners,
investigation made by or on behalf of any Underwriter, its directors and
officers or any person (including each partner, officer or director of
such person) who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, its directors or officers, any Selling Stockholder or any
person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The
Company, each Selling Stockholder and each Underwriter agree promptly to
notify each other of commencement of any Proceeding against it and, in
the case of the Company, against any of the Company's officers or
directors in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at Corixa
Corporation, 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 and, if to any
of the Selling Stockholders, shall be sufficient in all respects if delivered or
sent to the Representatives of the Selling Stockholders at Corixa Corporation,
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000.
13. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the
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laws of the State of New York. The Section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
14. Submission to Jurisdiction. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against Warburg Dillon Read LLC or any
indemnified party. Each of Warburg Dillon Read LLC and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts in the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
15. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders and to the extent provided in Section 11 hereof the controlling
persons, directors and officers referred to in Such Section, and their
respective successors, assigns, heirs, pursuant representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
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If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally.
Very truly yours,
CORIXA CORPORATION
By:
------------------------------------
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By:
------------------------------------
Attorney-in-Fact
Accepted and agreed to as of the date first above written, on behalf of and the
other several Underwriters named in Schedule A
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
PACIFIC GROWTH EQUITIES, INC.
By: WARBURG DILLON READ LLC
By:
-------------------------------
Title:
By:
-------------------------------
Title:
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
PACIFIC GROWTH EQUITIES, INC.
--------
Total 2,250,000
=========
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SCHEDULE B
Number of Number of
Selling Stockholders Firm Shares Additional Shares
-------------------- ----------- -----------------
InterWest Investors 250,000
---------- -------------
Total
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Opinion of Patent Counsel.
Dear Sirs:
At the request of Corixa Corporation (the "Company"), to which Company this firm
acts as patent counsel, we provide the following opinion as to such patent
matters and subject to the terms and conditions stated herein:
a. We have disclosed or intend to disclose to the United States Patent and
Trademark Office any references known by us to be material to the patentability
of the claimed inventions of the United States patent applications of the
Company being prosecuted by us listed on Schedule A in accordance with 37 C.F.R.
Section 1.56;
b. According to the records of the United States Patent and Trademark Office
("PTO"), and to our knowledge, the Company is the sole assignee of each of the
United States patent applications of the Company being prosecuted by us listed
on Schedule A [ATTACH LIST OF CASES FOR WHICH COUNSEL HAS PROSECUTION
RESPONSIBILITY] for which a serial number has been issued and which have a
searchable record in the PTO's assignment database; or to our knowledge all
inventors on such patent applications are under an obligation to assign all of
their rights in such applications to the Company;, except for the cases listed
on Schedule B [LIST EXCEPTIONS, SUCH AS CO-OWNED CASES ON SCHEDULE B]
c. To our knowledge, the Company has not received any notice of infringement
with respect to any patent, trademark or copyright or any notice of
misappropriation of trade secrets;
d. Based on our knowledge of the Company's processes and the conduct of its
business as described to us by the Company, the Company is not violating any
patent, trademark or copyright or trade secret or other proprietary right of a
third party which we are aware of, or which the Company has brought to our
attention, or which we have reviewed during prosecution of the patent
applications listed on Schedule A; and this firm has no reason to believe that
the Company does not possess or own adequate licenses or other rights to conduct
the business now being conducted by the Company as described in the Prospectus
e. We are not aware of any pending or threatened legal or governmental
proceedings relating to patent rights, copyrights trademark rights, trade
secrets, or other proprietary rights of the Company (other than the prosecution
patent or trademark proceedings themselves); [LIST EXCEPTIONS, SUCH AS
INTERFERENCES, LITIGATIONS, OR OPPOSITIONS IN SCHEDULE C]
f. To the best of our knowledge, the statements under the captions "Risk Factors
- Patents and Proprietary Rights; Third Party Rights" and "Business -
Intellectual Property", insofar as such matters constitute matters of law or
legal conclusions are accurate and correct in all material respects and fairly
present such matters; and
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g. With respect to United States patent, trademark, copyright and trade secret
matters, nothing has come to our attention which would lead us to believe that
the sections of the Offering Memorandum entitled "Risk Factors-- Patents and
Proprietary Rights; Third Party Rights" and "Business-- Intellectual Property,"
as of the date thereof and at any Delivery Date, contain any untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, not misleading.
Very truly yours,
