EXHIBIT X
XXXX LABORATORIES, INC.
3,000,000 Shares
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
May 22, 2001
XXXX LABORATORIES, INC.
3,000,000 Shares
Common Stock
($.01 par value)
UNDERWRITING AGREEMENT
May 22, 0000
Xxxx xx Xxxxxxx Securities LLC
(as Representative of the Several Underwriters)
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The corporation named in Schedule B annexed hereto (the
"Selling Stockholder") proposes to sell to the underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of 3,000,000 shares (the "Firm
Shares") of Common Stock, $.01 par value (the "Common Stock"), of Xxxx
Laboratories, Inc. (the "Company"). In addition, solely for the purpose of
covering over-allotments, the Selling Stockholder proposes to grant to the
Underwriters the option to purchase from the Selling Stockholder up to an
additional 450,000 shares of Common Stock (the "Additional Shares"). 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, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, 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,
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
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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
430A under the Act, is herein called the "Registration 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 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 Stockholder and the Underwriters
agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the Selling
Stockholder agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Selling
Stockholder the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule A annexed hereto at a purchase price of $59.01 per
Share. The Company and the Selling Stockholder 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 initial public offering
to such extent as you may determine.
In addition, the Selling Stockholder hereby grants to the
several Underwriters the option to purchase, and upon the basis of the
warranties and representations and the other terms and conditions herein set
forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Selling Stockholder, ratably in accordance with the number of
Firm Shares to be purchased by each of them (subject to such
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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 Selling Stockholder for the Firm
Shares. This option may be exercised at any time (but not more than once) on or
before the thirtieth day following the date hereof, by written notice to the
Selling Stockholder. 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 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 a power of attorney, which shall be satisfactory
to counsel for the Underwriters, granted by the Selling Stockholder (the "Power
of Attorney"), Alex Glasenberg will act as representative of the Selling
Stockholder. The foregoing representative (the "Representative of the Selling
Stockholder") is authorized, on behalf of the Selling Stockholder, to execute
any documents necessary or desirable in connection with the sale of the Shares
to be sold hereunder by the 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
the Selling Stockholder in connection with the sale and public offering of the
Shares, to
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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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distribute the balance of such proceeds to the Selling Stockholder, to receive
notices on behalf of the 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 Selling Stockholder by Federal (same day)
funds, against delivery of the certificates for the Firm Shares to you through
the facilities of The Depository Trust Company (the "DTC") in the form of a
global certificate or certificates registered in the name of Cede & Co., the
nominee of the DTC at the offices of Xxxxxx Xxxxxx & Xxxxxxx in New York City,
for the respective accounts of the Underwriters. Such payment and delivery shall
be made at 9:00 A.M., New York City time, on May 29, 2001 (unless another time
shall be agreed to by you and the Selling Stockholder 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 issued in the name of
Cede & Co. or in such names and in such denominations as you shall specify on
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
Selling Stockholder agrees 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 issued in the name of Cede & Co. or in such names and in such
denominations as you shall specify on 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 Selling Stockholder agrees 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) 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; 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;
(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; the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of New York, with full
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power and authority to own its properties and conduct its business as
described in the Registration Statement and the Prospectus and to
execute and deliver this Agreement as herein contemplated;
(c) the Company and each of its subsidiaries (the
"Subsidiaries") 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 its Subsidiaries, taken as a whole (a "Material Adverse
Effect"); and the Company and each of its Subsidiaries are in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by such
jurisdictions;
(d) neither the Company nor any of its Subsidiaries is in
breach of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would constitute a breach of, or 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 agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them is bound
and which could have a Material Adverse Effect, and the execution,
delivery and performance of this Agreement 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 constitute a breach of,
or default under), any provisions of the charter or by-laws, of the
Company or any of its Subsidiaries or under any provision of any
license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the Company or any
of its Subsidiaries 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,
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judgment or order applicable to the Company or any of its Subsidiaries;
(e) 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, except as rights
to indemnity and contribution hereunder may be limited by securities
laws and except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity;
(f) 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;
(g) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the sale of the Shares 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;
(h) 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 sale of the Shares to
the Underwriters hereunder, nor does any person have preemptive rights,
rights of first refusal or other rights to purchase any of the Shares;
(i) Deloitte & Touche LLP, whose reports on the consolidated
financial statements of the Company and its Subsidiaries are filed with
the Commission as part of the Registration Statement and Prospectus,
are independent public accountants as required by the Act;
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(j) each of the Company and its Subsidiaries 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
respective business, except where the absence of any such license,
authorization, consent approval or filing could not have a Material
Adverse Effect; neither the Company nor any of its Subsidiaries is in
violation of, or in default under (nor has any event occurred which
with notice, lapse of time, or both would constitute a violation of or
a 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 any of its
Subsidiaries the effect of which could have a Material Adverse Effect;
(k) all legal or governmental proceedings, contracts 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;
(l) except as described in the Registration Statement, there
are no actions, suits or proceedings pending or threatened against the
Company or any of its Subsidiaries or any of their respective
properties, 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; the Company is not a party nor
subject to the provisions of any material injunction, judgment, decree
or order of any court, regulatory body or other governmental agency or
body;
(m) the audited financial statements included in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its Subsidiaries as
of the dates indicated and the consolidated results of operations and
changes
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in financial position of the Company and its Subsidiaries 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;
(n) the unaudited interim financial statements included in the
Registration Statement and the Prospectus present fairly the condensed
consolidated financial position of the Company and its Subsidiaries as
of the dates indicated and the condensed consolidated results of
operations and changes in cash flows of the Company and the
Subsidiaries for the periods specified, subject to normal year-end
adjustments; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved;
(o) subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
may be otherwise stated in the Registration Statement or Prospectus,
there has not been (A) any material adverse change, financial or
otherwise, in the business, properties, prospects, regulatory
environment, results of operations or condition (financial or
otherwise), present or prospective, of the Company and its Subsidiaries
taken as a whole, (B) any transaction, which is material to the Company
and its Subsidiaries taken as a whole, contemplated or entered into by
the Company or any of its Subsidiaries or (C) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company
or any of its Subsidiaries which is material to the Company and its
Subsidiaries taken as a whole;
(p) the Company has obtained the agreement of each of its
directors and executive officers, the Selling Stockholder and certain
of its other stockholders not to directly or indirectly sell, offer,
pledge, contract to sell or grant any option to purchase or otherwise
dispose of or transfer any shares of Common Stock, or securities
convertible into or exchangeable or exercisable for Common Stock,
including
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without limitation, options, warrants, convertible bonds and the like
for a period of 90 days (except that directors and executive officers
of the Company shall be permitted to sell up to 5000 shares of Common
Stock commencing 30 days after the date of the Prospectus, provided
that in no event may the aggregate number of shares of Common Stock
sold by such directors and executive officers as a group during the
period commencing 30 days after the date of the Prospectus and ending
90 days after the date of the Prospectus exceed 50,000) after the date
of the Prospectus without the prior written consent of Banc of America
Securities LLC (which consent shall not be unreasonably withheld);
(q) except as disclosed in the Registration Statement and
Prospectus, the Company and its Subsidiaries own or possess the right
to use all patents, trademarks (including the Company's name, together
with its logo), trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets, know-how and rights described in the Prospectus as being owned
by them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the Company and
its Subsidiaries with respect to the foregoing. Except as described in
the Prospectus, no claim has been made against or notice given to the
Company alleging the infringement or other violation by the Company of
any patent, trademark, service xxxx, trade name, copyright, trade
secret, license or other intellectual property right or franchise right
of any person; and
(r) neither the Company nor any of its Subsidiaries is or,
after application of the net proceeds of the offering as described
under the caption "Use of Proceeds" in the Prospectus, will become an
entity required to register as an "investment company" or an entity
"controlled" by an entity required to register as an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended and the rules and regulations of the Commission
thereunder (the "Investment Company Act"). The Company
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intends to conduct its business in a manner such that it will not
become an entity required to register as an "investment company"
subject to regulation under the Investment Company Act.
4. Representations and Warranties of the Selling Stockholder.
The Selling Stockholder represents and warrants to each Underwriter that:
(a) such Selling Stockholder now is and at the time of
delivery of such Shares 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
title to such Shares, and upon delivery of and payment for such Shares,
the Underwriters will acquire valid title to such Shares free and clear
of any claim, lien, encumbrance, security interest, restriction on
transfer or other defect in title;
(b) such Selling Stockholder has, and at the time of delivery
of such Shares will have, all requisite corporate power and capacity,
and any approval required by law (other than those imposed by the Act
and the securities or blue sky laws of various jurisdictions in which
the Shares are being offered by the Underwriters), to sell and deliver
such Shares in the manner provided in this Agreement;
(c) this Agreement, the Power of Attorney and the Custody
Agreement among the Xxxxxxx & Xxxxxx LLC, as custodian, and the Selling
Stockholder (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 respective terms, in the case of this Agreement, except as
rights to indemnity and contribution hereunder may be limited by
securities laws and except as the enforceability hereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity;
(d) when the Registration Statement becomes effective and at
all times subsequent thereto through
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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 they
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, in light of
the circumstances under which they were made, not misleading;
(e) such Selling Stockholder has duly and irrevocably
authorized the Representative of the Selling Stockholder, 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 hereby and to deliver the Shares to be sold
by such Selling Stockholder and receive payment therefor pursuant
hereto; and
(f) the sale of such Selling Stockholder's Shares pursuant to
this Agreement is not prompted by any material 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 jurisdictions 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 jurisdiction
(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;
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(b) to make available to you 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;
(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 document that would be incorporated therein by reference and to
file no such amendment or supplement to which you shall object in
writing;
(e) 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
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similar form as may be designated by the Commission and (iii) such
other information as you may reasonably request regarding the Company
or its Subsidiaries;
(f) 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;
(g) as soon as practicable and for the time period specified
by Rule 158 under the Act, to make generally available to its
securityholders, and to deliver to you, an earnings statement of the
Company that will satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act;
(h) to furnish to you four 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;
(i) 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 its Subsidiaries which have been read by the
Company's independent certified public accountants, as stated in their
letter
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to be furnished pursuant to Section 8(c) of this Agreement;
(j) 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 Sections 13, 14 or 15(d) of
the Exchange Act;
(k) not to issue, directly or indirectly sell, offer, pledge,
contract to sell or grant any option to purchase or otherwise dispose
of or transfer any shares of Common Stock, or securities convertible
into or exchangeable or exercisable for Common Stock, including without
limitation, options, convertible bonds and the like or permit the
registration under the Act of any shares of Common Stock for a period
of 90 days after the date of the Prospectus, without the prior written
consent of Banc of America Securities LLC (which consent shall not be
unreasonably withheld), except for the registration of the Shares and
except for grants of options or issuances of Common Stock upon the
exercise of outstanding options pursuant to any of the Company's stock
option plans existing as of the date hereof; and
(l) to use its best efforts to cause the Shares to be listed
on the New York Stock Exchange.
6. Certain Covenants of the Selling Stockholder. The Selling
Stockholder agrees with each Underwriter as follows:
(a) the Selling Stockholder agrees that, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated the Selling Stockholder 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 clause (iii) (which expenses or fees shall be paid by the Selling
Stockholder) or clause (iv) (which expenses or fees shall be paid by
the Company) of this Section 6(a)) in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements
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thereto, and the printing and furnishing of copies of each thereof to
the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the sale and delivery of the Shares by the Selling
Stockholder, (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 Power 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 word processing and/or 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 the
New York Stock Exchange and any registration thereof under the Exchange
Act (which expenses or fees shall be paid by the Company), (vi) the
filing for review of the public offering of the Shares by the National
Association of Securities Dealers, Inc. (the "NASD"), (vii) the
performance of the Company's and the Selling Stockholder's other
obligations hereunder and (vii) the fees and disbursements of counsel
and accountants to the Company in connection with the foregoing and the
other transactions contemplated hereby;
(b) the Selling Stockholder will pay all underwriting
discounts and commissions, and will pay all transfer taxes and all fees
and disbursements of any counsel or accountant retained by it, in
connection with the sale of the Shares to be sold hereunder by the
Selling Stockholder; and
(c) the Selling Stockholder will not directly or indirectly
sell, offer, pledge, contract to sell or grant any option to purchase
or otherwise dispose of or transfer any shares of Common Stock, or
securities convertible into or exchangeable or exercisable for Common
Stock, including without limitation, options,
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warrants, convertible bonds and the like for a period of 90 days after
the date of the Prospectus, without the prior written consent of Banc
of America Securities LLC (which consent shall not be unreasonably
withheld).
7. Reimbursement of Underwriters' Expenses. If the Shares are
not delivered for any reason other than the termination of this Agreement
pursuant to the second paragraph of Section 9 hereof or the default by one or
more of the Underwriters in its or their respective obligations hereunder, the
Selling Stockholder shall 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
Stockholder 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 Stockholder 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 Stockholder of their
obligations hereunder and to the following conditions:
(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 Winston & Xxxxxx, counsel for the Company, 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 satisfactory to Xxxxxx Xxxxxx & Xxxxxxx,
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 New York, with full corporate power and authority
to own its properties and conduct its business as described in
the Registration Statement and the Prospectus, to execute and
deliver this Agreement;
-18-
(ii) each of the Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its respective jurisdiction of incorporation with
full corporate power and authority to own its respective
properties and to conduct its respective business;
(iii) the Company and its Subsidiaries are duly qualified,
licensed and 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;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) 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, including
without limitation the Shares, have been duly and validly
authorized and issued, and are fully paid, nonassessable and
free of statutory and contractual preemptive 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;
(vi) 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;
(vii) 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;
(viii) the Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop
order proceedings with
-19-
respect thereto are pending or threatened under the Act;
(ix) no approval, authorization, consent or order of or filing
with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares 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);
(x) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby 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 or
lapse of time, or both, would constitute a breach of or
default under), any provisions of the charter or by-laws of
the Company or any of its Subsidiaries or under any provision
of any indenture, mortgage, deed of trust, bank loan, credit
agreement or other agreement or instrument known to such
counsel to which the Company or any of its Subsidiaries is a
party or by which any of them or their respective properties
may be bound or affected, or under any law, regulation or rule
or any decree, judgment or order applicable to the Company or
any of its Subsidiaries;
(xi) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in breach of, or in
default under (nor has any event occurred which with notice or
lapse of time, or both would constitute a breach of, or
default under), any indenture, mortgage, deed of trust, bank
loan or any other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected or
under any law, regulation or rule or any
-20-
decree, judgment or order applicable to the Company or any of
its Subsidiaries;
(xii) 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;
(xiii) to the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against
the Company or any of its Subsidiaries or any of their
respective properties, at law or in equity or before or by any
commission, board, body, authority or agency which are
required to be described in the Prospectus but are not so
described;
(xiv) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed
(or, if an amendment with respect to any such document was
filed when such amendment was filed), 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); and
(xv) the Company is not an entity required to register as an
"investment company" under the Investment Company Act, nor is
the Company a holding company or a subsidiary of a holding
company under the Public Utility Holding Company Act of 1935.
In addition, such counsel shall state that such
counsel have participated in conferences with officers and
other representatives of the Company, representatives of the
Selling Stockholder, 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,
-21-
completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the
extent stated in subparagraphs (vi) and (vii) above), 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) 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 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 Stockholder shall furnish to you at the time
of purchase and at the additional time of purchase, as the case may be,
an opinion of Xxxxxxx & Xxxxxx, LLP, counsel for the Selling
Stockholder, 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 Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, stating that:
(i) each of this Agreement, the Custody Agreement and the
Power of Attorney has been duly executed and delivered by or
on behalf of the Selling Stockholder;
(ii) the Selling Stockholder has all requisite corporate
power, and has obtained any authorization
-22-
or approval required by law (other than those imposed by the
Act and the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters), to sell 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 the 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) the Selling Stockholder has duly authorized the execution
and delivery of this Agreement, the Custody Agreement and the
Power of Attorney and any other document necessary or
desirable in connection with the transactions contemplated
hereby and the delivery of the Shares; and
(v) the Representative of the Selling Stockholder has been
duly authorized by the 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.
(c) You shall have received from Deloitte & Touche 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 you.
(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 Xxxxxx Xxxxxx & Xxxxxxx, 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 (vi), (vii) and
(viii) of paragraph (a) of this Section 8.
-23-
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 Selling
Stockholder, 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 under subparagraph
(vi) 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) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Xxxxxx
Xxxxxx, Esq., Senior Vice President Strategic Business Development and
General Counsel of the Company, 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 Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Underwriters, stating that:
-24-
(i) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby 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 constitute a breach of or
default under), any provisions of the charter or by-laws of
the Company or any of its Subsidiaries or under any provision
of any license to which the Company or any of its Subsidiaries
is a party or by which any of them or their respective
properties may be bound or affected, or under any law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of its Subsidiaries; and
(ii) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in breach of, or in
default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or
default under), any license to which the Company or any of its
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected or under any
law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the Selling
Stockholder, 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, 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)
nothing has come to the attention of such counsel that causes him to
believe that the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became
-25-
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).
(f) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Winston
& Xxxxxx, special regulatory counsel for the Company, 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 Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Underwriters, stating that:
(i) the descriptions in the Registration Statement and in the
Prospectus of the statutes, regulations and legal or
governmental proceedings or procedures relating to the United
States Food and Drug Administration or the Drug Enforcement
Administration and the approval process relating to the
Company's products are accurate in all material respects and
are a fair summary of those statutes, regulations, proceedings
or procedures; and
(ii) nothing has come to the attention of such counsel that
leads such counsel to believe that descriptions of federal
laws, regulations or rules relating to the manufacture or sale
of the Company's products and the approval process relating
thereto contained in the Registration Statement and in the
Prospectus or the documents incorporated by reference therein
including, without limitation, the portions
-26-
of the Prospectus entitled "Risk Factors-- We are subject to
antitrust litigation and to U.S. agency antitrust
investigations relating to patent litigation settlements,
which could take considerable time and money to resolve and,
if adversely concluded, could limit the options we have to
resolve these challenges that are a significant part of our
business strategy and could negatively affect our profits",
"Risk Factors-- Proposed FDA regulations and recent FDA
guidelines and rules granting pediatric extensions may impair
our ability to utilize fully the 180-day generic marketing
exclusivity period for our patent challenges, including
Prozac, substantially diminishing the value of a favorable
ruling," "Business-- Patent Challenges," and "Business--
Government Regulation," and the portions of the Form 10-K/A of
the Company dated June 30, 2000 entitled "Business---Patent
Challenges," "Business-- Government Regulation" and "Legal
Proceedings" 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.
(g) 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.
(h) 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 Representative of the Selling Stockholder
and you in writing or by telephone, confirmed in writing; provided,
however, that the Company, the Representative of the Selling
Stockholder and you and any group of Underwriters, including you, who
have agreed hereunder to purchase in the aggregate
-27-
at least 50% of the Firm Shares may from time to time agree on a later
date.
(i) 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.
(j) 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 adverse 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 could reasonably be expected to have a Material Adverse Effect
has been entered into by the Company or any of its Subsidiaries.
(k) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate
executed by its chief executive officer and its chief financial officer
to the effect that the representations and warranties of the Company as
set forth in this Agreement and the conditions set forth in paragraph
(i) and paragraph (j) have been met and that they are true and correct
as of each such date.
(l) You shall have received signed letters, dated the date of
this Agreement, from the Selling Stockholder and each of the directors
and executive
-28-
officers of the Company and certain of its other stockholders to the
effect that such persons shall not directly or indirectly sell, offer,
pledge, contract to sell or grant any option to purchase or otherwise
dispose of or transfer any shares of Common Stock, or securities
convertible into or exchangeable or exercisable for Common Stock,
including without limitation, options, warrants, convertible bonds and
the like for a period of 90 days after the date of the Prospectus
(except that directors and executive officers of the Company shall be
permitted to sell up to 5000 shares of Common Stock commencing 30 days
after the date of the Prospectus, provided that in no event may the
aggregate number of shares of Common Stock sold by such directors and
executive officers as a group during the period commencing 30 days
after the date of the Prospectus and ending 90 days after the date of
the Prospectus exceed 50,000) without the prior written consent of Banc
of America Securities LLC (which consent shall not be unreasonably
withheld),
(m) The Company and the Selling Stockholder 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.
(n) The Company and the Selling Stockholder shall perform such
of their respective obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase and at
or before the additional time of purchase, as the case may be.
(o) The Selling Stockholder will at the time of purchase and
the additional time of purchase, as the case may be, deliver to you a
certificate of the Representative of the Selling Stockholder to the
effect that the representations and the warranties of the Selling
Stockholder as set forth in this Agreement are true and correct as of
each such date.
(p) 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
-29-
occurred any downgrading, nor shall any notice 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 any Subsidiary of the
Company by any "nationally recognized statistical rating organization,"
as that term is defined in Rule 436(g)(2) promulgated 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
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, 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 any Subsidiary of the
Company by any "nationally recognized statistical rating organization," as that
term is defined in Rule 436(g)(2) promulgated 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 shall have been suspended or minimum
prices shall have been established on the New York Stock Exchange, 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
-30-
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 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 Representative of the
Selling Stockholder 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 Stockholder, as the case may be, shall be unable to
comply with any of the terms of this Agreement, the Company or the Selling
Stockholder, 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 Stockholder under this Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. If any Underwriter
shall default in its obligation to take up and pay for the Firm Shares to be
purchased by it hereunder 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 aggregate amount 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.
-31-
Without relieving any defaulting Underwriter from its
obligations hereunder, the Selling Stockholder agrees with the non-defaulting
Underwriters that it 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.
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.
11. Indemnity by the Company, the Selling Stockholder and the Underwriters.
(a) The Company and the Selling Stockholder jointly and
severally agree to indemnify, defend and hold harmless each Underwriter, its
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, from and
against any loss, 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 or otherwise insofar as such
loss, 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
-32-
as any such loss, 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 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, provided,
however, that the indemnity agreement contained in this subsection (a) with
respect to any Preliminary Prospectus or amended Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
expense, liability or claim purchased the Shares which are the subject thereof
if the Prospectus corrected any such alleged untrue statement or omission and if
such Underwriter failed to send or give a copy of the Prospectus to such person
at or prior to the written confirmation of the sale of such Shares to such
person; provided, further, that the Selling Stockholder shall not be
responsible, either pursuant to this indemnity or as a result of any breach of
this Agreement, for losses, expenses, liability or claims for an amount in
excess of the proceeds to be received by such Selling Stockholder (before
deducting expenses) from the sale of Shares hereunder.
If any action is brought against an Underwriter or any such
person in respect of which indemnity may be sought against the Company or the
Selling Stockholder pursuant to the foregoing paragraph, such Underwriter or
such person shall promptly notify the Company and the Representative of the
Selling Stockholder in writing of the institution of such action and the Company
or the Selling Stockholder, as the case may be, shall assume the defense of such
action, 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
Stockholder shall not relieve the Company or the Selling Stockholder from any
liability which they 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
-33-
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 action or the Company or such
Selling Stockholder shall not have employed counsel to have charge of the
defense of such action 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 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 action 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 any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). The Company or such Selling Stockholder shall not be liable for any
settlement of any such claim or action 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
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settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify, defend and hold harmless the Company, its directors and officers, the
Selling Stockholder and any person who controls the Company or the Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any loss, expense, liability or claim (including
the reasonable cost of investigation) which, jointly or severally, the Company,
the Selling Stockholder or any such person may incur under the Act or otherwise,
insofar as such loss, 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 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 either in such Registration Statement or Prospectus or necessary to make
such information not misleading. Each of the Company and the Selling Stockholder
hereby acknowledges that the only information that the Underwriters have
furnished to the Company expressly for use in such Registration Statement or
Prospectus are the statements set forth (i) as the last paragraph under the
caption "Underwriting" in the Prospectus concerning stabilization by the
Underwriters and (ii) in the table in the first paragraph under the caption
"Underwriting" in the Prospectus; and the Underwriters confirm that such
statements are correct.
If any action is brought against the Company, the Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, the
Selling Stockholder or such person shall promptly notify such Underwriter in
writing of the institution of such action and such Underwriter shall assume the
defense of such action, including the employment of counsel reasonably
satisfactory to such indemnified party and
-35-
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 they may have to the Company, the Selling Stockholder or any such person
or otherwise. The Company, the 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, the 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 action or
such Underwriter shall not have employed counsel to have charge of the defense
of such action 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 those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action 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 any one action or series of
related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). No Underwriter shall be liable for any
settlement of any such claim or action 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, the Selling
Stockholder 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
-36-
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, 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, expenses, liabilities or claims
(i) in the case of the Selling Stockholder, in such proportion as is appropriate
to reflect the relative benefits received by the Selling Stockholder 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 Selling Stockholder on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities or claims, as well as any other relevant equitable
considerations; and (iii) in the case of the Company, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by the
Selling Stockholder on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting expenses)
received by the Selling Stockholder bears to the total underwriting discounts
and commissions received by the Underwriters. The relative fault of the Company
and the Selling Stockholder 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
-37-
by the Company, by the Selling Stockholder 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, expenses, liabilities and claims referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
(d) The Company, the Selling Stockholder 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 damages which such Underwriter has otherwise been required to pay by reason
of such untrue statements 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 Stockholder contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, its directors and officers or any 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 and officers, the
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
-38-
of the Shares. The Company, the Selling Stockholder and each Underwriter agree
promptly to notify the others of the commencement of any litigation or
proceeding against it and, in the case of the Company, against any of the
Company's officers and 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 Banc of America Securities LLC, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Revell Horsey, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of
the Company at 0 Xxxxxx Xxxx, Xxxxxx, XX 00000-0000, Attention: General Counsel
and, if to the Selling Stockholder, shall be sufficient in all respects if
delivered or sent to the Representative of the Selling Stockholder at Apotex,
000 Xxxxxx Xxxxx, Xxxxxx (Xxxxxxx), Xxxxxxx X0X 0X0, Attention: Chief Financial
Officer.
13. Construction. This Agreement shall be governed by, and
construed in accordance with, the internal 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. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the Company, the
Selling Stockholder and the controlling persons, directors and officers referred
to in Section 11 hereof, and their respective successors, assigns, 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.
15. Consent to Jurisdiction; Waiver of Immunity. Any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby ("Related Proceedings") may be instituted in
the federal courts of the United States of America located in the City and
County of New York or the courts of the State of New York in each case located
in the City and County of New York (collectively, the "Specified Courts"), and
each party irrevocably submits to the
-39-
exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related Judgment"), as to which
such jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such suit, action or other proceeding brought in any such court has been brought
in an inconvenient forum. The Selling Stockholder irrevocably appoints Xxxxxxx &
Xxxxxx LLP, at 000 Xxxx Xxx., 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, Attn: Xxxx
Xxxxx, or at such other address as Xxxxxxx & Xxxxxx LLP may specify in a written
notice delivered to the parties hereto, as its agent to receive service of
process or other legal summons for purposes of any such suit, action or
proceeding that may be instituted in any state or federal court in the City and
County of New York.
With respect to any Related Proceeding, the Selling
Stockholder irrevocably waives, to the fullest extent permitted by applicable
law, all immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, service of process, attachment (both before and after judgment)
and execution to which it might otherwise be entitled in the Specified Courts,
and with respect to any Related Judgment, each party waives any such immunity in
the Specified Courts or any other court of competent jurisdiction, and will not
raise or claim or cause to be pleaded any such immunity at or in respect of any
such Related Proceeding or Related Judgment, including, without limitation, any
immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976,
as amended.
16. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement among
the parties.
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If the foregoing correctly sets forth the understanding among
the Company, the Selling Stockholder 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
Stockholder and the Underwriters, severally.
Very truly yours,
XXXX LABORATORIES, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: President and COO
THE SELLING STOCKHOLDER NAMED IN
SCHEDULE B ATTACHED HERETO
By: /s/ Alex Glasenberg
-------------------
Alex Glasenberg
Attorney-in-Fact
Accepted and agreed to as of the
date first above written, on behalf
of themselves and the other several
Underwriters named in Schedule A
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
Banc of America Securities LLC 1,200,000
CIBC World Markets Corp. 600,000
Xxxxxxx Xxxxx Xxxxxx Inc. 600,000
UBS Warburg LLC 600,000
-----------
Total....................................... 3,000,000
===========
SCHEDULE B
Number of
Selling Stockholder Firm Shares
------------------- -----------
Xxxxxxx Delaware, Inc. 3,000,000
Total.............................. 3,000,000
===========
