Exhibit 1.1
CELGENE CORPORATION
(a Delaware corporation)
20,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
November 3, 2006
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. XXXXXX SECURITIES INC.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Celgene Corporation, a Delaware corporation (the "Company") confirms
its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), X.X. Xxxxxx Securities Inc. ("JPMorgan") and
each of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and JPMorgan
are acting as representatives (in such capacity, the "Representatives"), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $0.01 per share, of the Company ("Common Stock") set forth in Schedule
A hereto. The aforesaid 20,000,000 shares of Common Stock to be purchased by the
Underwriters are hereinafter called, collectively, the "Securities".
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") an automatic shelf registration statement on Form S-3 (No.
333-138395, including the related prospectus or prospectuses, which registration
statement became effective upon filing under Rule 462(e) of the rules and
regulations of the Commission (the "1933 Act Regulations") under the Securities
Act of 1933, as amended (the "1933 Act"). Such registration statement covers the
registration of the Securities under the 1933 Act. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430B ("Rule 430B") of the 1933 Act
Regulations and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations. Any information included in such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of and included in such registration statement pursuant to Rule 430B
is referred to as "Rule 430B Information." Each prospectus used in connection
with the offering of the Securities that omitted Rule 430B Information is herein
called a "preliminary prospectus." Such registration statement, at any given
time, including the amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the
documents otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations, is herein called the "Registration Statement." The Registration
Statement at the time it originally became effective is herein called the
"Original Registration Statement." The final prospectus in the form first
furnished to the Underwriters for use in connection with the offering of the
Securities, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at the time of the execution of this
Agreement and any prospectus that form a part thereof, is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, any prospectus or preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in or otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, any preliminary prospectus, prospectus
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus, prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") which is incorporated by reference in or otherwise deemed by 1933 Act
Regulations to be a part of or included in the Registration Statement, such
preliminary prospectus, prospectus or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof, the
Applicable Time referred to in
2
Section 1(a)(i) hereof and as of the Closing Time referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) STATUS AS A WELL-KNOWN SEASONED ISSUER. (A) At the time of
filing the Original Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only,
of Rule 163(c) of the 1933 Act Regulations) made any offer relating to
the Securities in reliance on the exemption of Rule 163 of the 1933 Act
Regulations and (D) at the date hereof, the Company was and is a
"well-known seasoned issuer" as defined in Rule 405 of the 1933 Act
Regulations ("Rule 405"), including not having been and not being an
"ineligible issuer" as defined in Rule 405. The Registration Statement
is an "automatic shelf registration statement," as defined in Rule 405,
and the Securities, since their registration on the Registration
Statement, have been and remain eligible for registration by the
Company on a Rule 405 "automatic shelf registration statement." The
Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the
automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the
earliest time thereafter that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act
Regulations) of the Securities and at the date hereof, the Company was not and
is not an "ineligible issuer," as defined in Rule 405.
(ii) Registration Statement, Prospectus and Disclosure at Time
of Sale. The Original Registration Statement became effective upon
filing under Rule 462(e) of the 1933 Act Regulations ("Rule 462(e)") on
November 3, 2006, and any post-effective amendment thereto also became
effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with.
Any offer that is a written communication relating to the Securities
made prior to the filing of the Original Registration Statement by the Company
or any person acting on its behalf (within the meaning, for this paragraph only,
of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission
in accordance with the exemption provided by Rule 163 of the 1933 Act
Regulations ("Rule 163") and otherwise complied with the requirements of Rule
163, including without limitation the legending requirement, to qualify such
offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date with respect
to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and
at the Closing Time, the
3
Registration Statement complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations, and did not and
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.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued and at
the Closing Time, included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
As of the Applicable Time, neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time (as defined below), the Statutory Prospectus (as defined below) and the
information included on Schedule C hereto, all considered together
(collectively, the "General Disclosure Package"), nor (y) any individual Issuer
Limited Use Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" means 4:20 pm (Eastern time) on November 3, 2006 or
such other time as agreed by the Company, Xxxxxxx Xxxxx and JPMorgan.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 of the 1933 Act Regulations ("Rule 433"),
relating to the Securities that (i) is required to be filed with the Commission
by the Company, (ii) is a "road show that is a written communication" within the
meaning of Rule 433(d)(8)(i), whether or not required to be filed with the
Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because
it contains a description of the Securities or of the offering that does not
reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the
Company's records pursuant to Rule 433(g).
"Issuer General Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in Schedule C hereto.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
"Statutory Prospectus" as of any time means the prospectus relating to
the Securities that is included in the Registration Statement immediately prior
to that time, including any document incorporated by reference therein and any
preliminary or other prospectus deemed to be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that
4
the issuer notified or notifies Xxxxxxx Xxxxx and JPMorgan as described in
Section 3(e), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the Prospectus or
any Issuer Free Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through any of
the Representatives expressly for use therein.
(iii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, conformed and will conform in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, (a) at the time
the Original Registration Statement became effective, (b) at the
earlier of time the Prospectus was first used and the date and time of
the first contract of sale of Securities in this offering and (c) at
the Closing Time, did not and 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.
(iv) INDEPENDENT ACCOUNTANTS. KPMG LLP, the accountants who
certified the financial statements and the supporting schedules, if
any, included in the Registration Statement are registered independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) FINANCIAL STATEMENTS. The consolidated financial
statements included in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related
schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and its consolidated subsidiaries at the respective dates
and for the respective periods specified; said financial statements
have been prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as disclosed therein. The financial data
presented in the Prospectus under the caption "Recent Developments" are
in all material respects accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Company.
(vi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise stated therein, (A) there has not been any material adverse
change or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse
5
Effect") and (B) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vii) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(viii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly organized and is validly
existing as a corporation or other legal entity in good standing under
the laws of the jurisdiction of its incorporation or formation, as the
case may be, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or other legal entity to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
or other equity of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Significant Subsidiary.
The only Significant Subsidiaries of the Company are the subsidiaries
listed on Schedule D hereto.
(ix) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Company's balance
sheet in its Form 10-Q for the quarter ended June 30, 2006 (except for
issuances subsequent to June 30, 2006, if any, pursuant to this
Agreement, pursuant to reservations, agreements or stock option or
other employee benefit plans referred to in the Registration Statement
or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was (or will be at the Closing
Time) issued in violation of the preemptive or other similar rights of
any securityholder of the Company.
6
(x) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the Underwriters from the Company have
been duly authorized for issuance and sale to the Underwriters pursuant
to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth herein will be validly issued, fully paid and non-assessable; the
Common Stock conforms to all statements relating thereto contained in
the Registration Statement and such description conforms to the rights
set forth in the instruments defining the same; and the issuance of the
Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(xii) STOCK OPTION AWARDS. All stock option awards granted by
the Company (other than any awards assumed by the Company in connection
with any corporate transaction) have been appropriately authorized by
the board of directors of the Company or a duly authorized committee
thereof; all stock options granted to employees in the United States
reflect the fair market value of the Company's capital stock as
determined under Section 409A of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), and the rules and regulations
promulgated thereunder, or any successor statute, rules and regulations
thereto, on the date the option was granted (within the meaning of
United States Treasury Regulation ss.1.421-1(c)); no stock option
awards granted by the Company (other than any awards assumed by the
Company in connection with any corporate transaction) have been
retroactively granted, or the exercise or purchase price of any stock
option award determined retroactively; there is no action, suit,
proceeding, formal inquiry or formal investigation before or brought by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company in connection with any stock option awards
granted by the Company.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its respective charter
or by-laws or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of Securities to be purchased by the
Underwriters from the Company and the use of the proceeds from the sale
of such Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of
7
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its subsidiaries pursuant to,
the Agreements and Instruments (except for such conflicts, breaches,
defaults or Repayment Events or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations, except where any such violation would not
have a Material Adverse Effect, or the provisions of the charter or
by-laws or other organizational documents of the Company or its
subsidiaries. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xiv) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is threatened, which could reasonably be expected to
have a Material Adverse Effect.
(xv) ABSENCE OF PROCEEDINGS. Except as set forth in the
Registration Statement, General Disclosure Package and the Prospectus,
there are no actions, suits, proceedings, or to the knowledge of the
Company, inquiries or investigations before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which if determined adversely to the Company
or its subsidiaries, could individually or in the aggregate reasonably
be expected to have a Material Adverse Effect.
(xvi) STATISTICAL AND MARKET RELATED DATA. The statistical and
market related data included in the Registration Statement are based on
or derived from sources that the Company believes to be reliable.
(xvii) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xviii) INTELLECTUAL PROPERTY RIGHTS. Each of the Company and
its subsidiaries owns, is licensed to use or otherwise possesses
adequate rights to use the patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, trade dress,
copyrights and know-how, including trade secrets, data and other
unpatented and/or unpatentable proprietary or confidential information,
systems, processes or procedures (collectively, the "Intellectual
Property"), reasonably necessary to carry on the business conducted by
it, except to the extent that the failure to own, be licensed to use or
otherwise possess adequate rights to use such
8
Intellectual Property would not individually or in the aggregate be
reasonably expected to have a Material Adverse Effect. To the best of
the Company's knowledge, there are no valid and enforceable United
States patents that are infringed by the business currently conducted
by the Company, or as currently proposed to be conducted by the
Company, as described in the Registration Statement, General Disclosure
Package or Prospectus and which would have a Material Adverse Effect on
the Company. The Company is not aware of any basis for a finding that
the Company and its subsidiaries do not have clear title or valid
license rights to the patents and patent applications referenced in the
Registration Statement, General Disclosure Package or Prospectus as
owned or licensed by the Company. Except as described in the
Registration Statement, General Disclosure Package or Prospectus, the
Company and its subsidiaries are not subject to any judgment, order,
writ, injunction or decree of any court or any Federal, state, local,
foreign or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any arbitrator, nor
have they entered into or are a party to any contract, which restricts
or impairs the use of any of the foregoing which would have a Material
Adverse Effect. The Company is not aware of any prior art that may
render any patent application owned by the Company and its subsidiaries
anticipated which has not been disclosed to the United States Patent
and Trademark Office and which would have a Material Adverse Effect.
Except for such matters that have been resolved as described in the
Registration Statement, General Disclosure Package or Prospectus,
neither the Company nor any of its subsidiaries has received any
written notice of infringement of or conflict with asserted rights of
any third party with respect to the business currently conducted by
them as described in the Registration Statement, General Disclosure
Package or Prospectus and which would have a Material Adverse Effect
(xix) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation by the Company of
the transactions contemplated by this Agreement, except such as have
been already obtained or as may be required under the 1933 Act or the
1933 Act Regulations and foreign or state securities or blue sky laws.
(xx) ABSENCE OF MANIPULATION. The Company has not taken, nor
will the Company take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(xxi) POSSESSION OF LICENSES AND PERMITS. Each of the Company
and its subsidiaries owns, possesses or has obtained and is in
compliance with all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and foreign governmental
authorities, all self-regulatory organizations and all courts and other
9
tribunals, domestic or foreign, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
conducted as of the date hereof ("Permits"), except to the extent the
failure to own, possess or obtain such Permits would not result in a
Material Adverse Effect; and neither the Company nor its subsidiaries
has received any notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the
Registration Statement, the General Disclosure Package and the
Prospectus and except to the extent such revocation or modification
would not result in a Material Adverse Effect; and each of the Company
and its subsidiaries is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date
hereof, except to the extent a failure to so comply would not have a
Material Adverse Effect.
(xxii) INVESTMENT COMPANY ACT. The Company is not required,
and upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Prospectus will not be required, to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act").
(xxiii) ERISA COMPLIANCE. No "prohibited transaction" (as
defined in Section 406 of the Employee Retirement Income Security Act
of 1974, as amended from time to time, including the regulations and
published interpretations thereunder ("ERISA"), or Section 4975 of the
Code) or "accumulated funding deficiency" (as defined in Section 302 of
ERISA) or any of the reportable events set forth in Section 4043(c) of
ERISA (other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived) has occurred
with respect to any "employee benefit plan" (as defined in Section 3(3)
of ERISA) of the Company or its subsidiaries which would have a
Material Adverse Effect; each such employee benefit plan is in
compliance with applicable law, including ERISA and the Code, except
where such noncompliance, individually or in the aggregate, would not
have a Material Adverse Effect; the Company and its subsidiaries have
not incurred and do not expect to incur liability under Title IV of
ERISA with respect to the termination of, or withdrawal from, any
"pension plan" (as defined in Section 3(2) of ERISA) for which the
Company or its subsidiaries would have any liability that would have a
Material Adverse Effect; and each such pension plan maintained by the
Company or its subsidiaries that is intended to be qualified under
Section 401(a) of the Code has received a determination letter from the
Internal Revenue Service to the effect that such plan is so qualified
or such plan utilizes a prototype form of plan document and the
prototype plan's sponsor has received a favorable opinion or advisory
opinion from the Internal Revenue Service and nothing, to the knowledge
of the Company, has occurred, whether by action or by failure to act,
which would cause the loss of such qualification, in each case, except
where any such failure to qualify or loss of qualification would not
have a Material Adverse Effect.
(xxiv) ENVIRONMENTAL LAWS. The Company and its subsidiaries
(i) are in compliance with any and all applicable federal, state, local
and foreign laws and regulations relating to the protection of human
health and safety, the environment or
10
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not individually or in the aggregate have a
Material Adverse Effect. There are no costs or liabilities associated
with compliance by the Company and its subsidiaries with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xxv) TAX LAW COMPLIANCE. The Company and its subsidiaries
have filed all material federal, state, local and foreign tax returns
which have been required to be filed and have paid all taxes shown
thereon and all assessments received by them or any of them to the
extent that such taxes have become due and are not being contested in
good faith; and no material tax deficiency has been determined
adversely to the Company and there is no material tax deficiency which
has been or might reasonably be expected to be asserted or threatened
against the Company or its subsidiaries.
(xxvi) INSURANCE. The Company and its subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as is
reasonable for the conduct of their respective businesses and the value
of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(xxvii) FDA COMPLIANCE. The studies, tests and preclinical and
clinical trials conducted by or on behalf of the Company were and, if
still pending, are being conducted in accordance with experimental
protocols, procedures and controls pursuant to, where applicable, U.S.
Food and Drug Administration ("FDA") requirements and accepted
professional scientific standards, except where the failure to so
conduct could not reasonably be expected to result in a Material
Adverse Effect; the descriptions of the results of such studies, tests
and trials contained in the Registration Statement, the General
Disclosure Package and the Prospectus are accurate and complete in all
material respects; and the Company has not received any notices or
correspondence from the FDA or any state, local or foreign governmental
body exercising comparable authority requiring the termination,
suspension or material modification of any studies, tests or
preclinical or clinical trials conducted by or on behalf of the Company
which termination, suspension or material modification could reasonably
be expected to have a Material Adverse Effect. The Company and its
subsidiaries have not failed to comply with applicable rules and
regulations of the FDA or any other federal, state, local or foreign
governmental body exercising comparable authority in a manner that
would result in a Material Adverse Effect.
11
(xxviii) NO VIOLATION OF FCPA. None of the Company, its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or its
subsidiaries is aware of, or has taken, any action, directly or
indirectly, that would reasonably be expected to result in a violation
by such Persons of Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the "FCPA"), including,
without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of
the giving of anything of value to any "foreign official" (as such term
is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention
of the FCPA; and the Company and its subsidiaries have conducted their
businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(xxix) REGISTRATION RIGHTS. Except as otherwise disclosed in
the Registration Statement, there are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement.
(xxx) COMPLIANCE WITH XXXXXXXX-XXXXX ACT. The Company and its
subsidiaries are in compliance in all material respects with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx
Act") that are effective and are applicable to the Company as an
"issuer" as defined under the Xxxxxxxx-Xxxxx Act and to which it is
then subject, including Section 402 related to loans and Sections 302
and 906 related to certifications.
(xxxi) DISCLOSURE AND INTERNAL CONTROLS. The Company has
disclosure controls and procedures (as such term is defined in Rules
13a-14 and 15d-14 under the 0000 Xxx) that (A) are designed to ensure
that material information relating to the Company and its subsidiaries
is known to the Company's Chief Executive Officer and its Chief
Financial Officer by others within the Company and its subsidiaries,
particularly during the periods in which the filings made by the
Company with the Commission which it may make under the 1934 Act are
being prepared, (B) will be evaluated for effectiveness as of the end
of each fiscal quarter and (C) are effective in all material respects
to perform the functions for which they were established. The Company
and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorization, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific authorization
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Since the end of the Company's most
recent audited fiscal year, there has been (I) no material weakness in
the Company's internal control over financial reporting (whether or not
12
remediated) and (II) no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over
financial reporting. The Company and its consolidated subsidiaries
employ disclosure controls and procedures that are designed to ensure
that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed,
summarized and reported, within the time periods specified in the
Commission's rules and forms, and is accumulated and communicated to
the Company's management, including its principal executive officer or
officers and principal financial officer or officers, as appropriate,
to allow timely decisions regarding disclosure.
(xxxii) PENDING PROCEEDINGS AND EXAMINATIONS. The Registration
Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the
subject of a pending proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company and not such officer to each Underwriter as to the matters covered
thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule B, which the number of Securities set
forth in Schedule A opposite the name of such Underwriter, plus any additional
number of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, bears to the total number of
Securities, subject, in each case, to such adjustments among the Underwriters as
the Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Xxxxx, Xxxxx,
Xxxxxx Xxxxxxx & Xxxxxxxx LLP, One New York Plaza, New York, New York, or at
such other place as shall be agreed upon by the Representatives and the Company,
at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
13
Securities which it has agreed to purchase. Any of the Representatives,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) DENOMINATIONS; REGISTRATION. Certificates for Securities shall be
in such denominations and registered in such names as the Representatives may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS;
PAYMENT OF FILING FEES. The Company, subject to Section 3(b), will comply with
the requirements of Rule 430B, and will notify the Representatives immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement or new registration statement relating to the Securities
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or the filing of a new registration statement or any
amendment or supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or such new registration
statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to Section
8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Company will effect the
filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b)(without reliance on Rule 424(b)(8)), and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment. The Company shall pay the
required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the
1933 Act Regulations (including, if applicable, by updating the "Calculation of
Registration Fee" table in accordance with Rule 456(b)(1)(ii) either in a
post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b)).
(b) FILING OF AMENDMENTS AND EXCHANGE ACT DOCUMENTS. The Company will
give the Representatives notice of its intention to file or prepare any
amendment to the Registration
14
Statement or new registration statement relating to the Securities or any
amendment, supplement or revision to either any preliminary prospectus
(including any prospectus included in the Original Registration Statement or
amendment thereto at the time it became effective) or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company will
furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall object. The Company has given the Representatives
notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give the
Representatives notice of its intention to make any such filing from the
Applicable Time to the Closing Time and will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed
filing and will not file or use any such document to which the Representatives
or counsel for the Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Original Registration Statement and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein or otherwise deemed to be a part thereof) and signed copies of
all consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Original Registration
Statement and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Original Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
to file a
15
new registration statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment, supplement or new registration statement as may be
necessary to correct such statement or omission or to comply with such
requirements, the Company will use its best efforts to have such amendment or
new registration statement declared effective as soon as practicable (if it is
not an automatic shelf registration statement with respect to the Securities)
and the Company will furnish to the Underwriters such number of copies of such
amendment, supplement or new registration statement as the Underwriters may
reasonably request. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement (or any other registration
statement relating to the Securities) or the Statutory Prospectus or any
preliminary prospectus or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Company will promptly
notify Xxxxxxx Xxxxx and JPMorgan and will promptly amend or supplement, at its
own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the date
hereof; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. The Company will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such jurisdictions
as the Underwriters may request.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide to the Underwriters the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds". (i) LISTING. The Company will use its best efforts to
effect and maintain the quotation of the Securities on the Nasdaq Global Select
Market.
(j) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
16
(k) ISSUER FREE WRITING PROSPECTUSES. The Company represents and agrees
that, unless it obtains the prior consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior consent of
the Company and the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute an "issuer free writing
prospectus," as defined in Rule 433, or that would otherwise constitute a "free
writing prospectus," as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and the
Representatives, as the case may be, is hereinafter referred to as a "Permitted
Free Writing Prospectus." The Company represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an "issuer free
writing prospectus," as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely filing with the Commission where required,
legending and record keeping.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Permitted Free Writing Prospectus and of the
Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to
investors, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the costs
and expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the Securities, and (x) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Securities
and (xi) the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq Global Select Market. Except as otherwise set forth
herein, the Underwriters shall be responsible for all other expenses incurred by
them, including the fees and expenses of their counsel.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including
17
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS;
PAYMENT OF FILING FEE. The Registration Statement has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430B Information shall have been filed with the Commission in the
manner and within the time period required by Rule 424(b) without reliance on
Rule 424(b)(8) (or a post-effective amendment providing such information shall
have been filed and become effective in accordance with the requirements of Rule
430B). The Company shall have paid the required Commission filing fees relating
to the Securities within the time period required by Rule 456(1)(i) of the 1933
Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if
applicable, shall have updated the "Calculation of Registration Fee" table in
accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the
Registration Statement or on the cover page of a prospectus filed pursuant to
Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinions, each dated as of
Closing Time, of (A) Proskauer Rose LLP and such other firms or counsel as
reasonably acceptable to the Representatives to the effect set forth in Exhibit
A hereto and (B) patent counsel if and to the effect reasonably requested by the
Representatives, all in form and substance reasonably satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, in form and substance satisfactory to the
Underwriters. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus or the
18
General Disclosure Package, any material adverse change or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the Company signed by the President or a Vice President of the
Company and the chief financial officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements herein and
satisfied all conditions herein on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Representatives shall have received from KPMG LLP a letter dated
such date, in form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement, the General Disclosure Package and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from KPMG LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(g) MAINTENANCE OF RATING. At Closing Time, the Company's debt
securities shall not have been downgraded by Moody's Investor's Service Inc. or
Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc. since the date
of this Agreement, and no such organization shall have publicly announced that
it has under surveillance or review its rating of the Company's debt securities.
(h) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for inclusion in the Nasdaq Global Select Market, subject only to
official notice of issuance.
(i) NO OBJECTION. The NASD has not raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements.
(j) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
19
(k) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, as such term is defined in
Rule 501(b) under the 1933 Act (each, an "Affiliate"), its selling agents and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430B Information, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus, any Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx and JPMorgan), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through any of the Representatives expressly for
20
use in the Registration Statement (or any amendment thereto), including the Rule
430B Information or any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430B Information or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through any of
the Representatives expressly for use therein. The parties hereto agree that
such written information consists of the first full paragraph under the caption
"Underwriting--Commissions and Discounts" in the final Prospectus.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx and
JPMorgan, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any
21
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on the cover of the
Prospectus.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
22
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it 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 any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company and (ii) delivery of
and payment for the Securities.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus (exclusive
of any supplement thereto) or General Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the Nasdaq Global Select
Market, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq Global Select Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum
23
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, (iv) a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States or with respect to Clearstream or Euroclear systems in Europe,
or (v) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. TAX DISCLOSURE. Notwithstanding any other provision of this
Agreement, immediately upon commencement of discussions with respect to the
transactions contemplated hereby, the Company (and each employee, representative
or other agent of the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to the
24
Company relating to such tax treatment and tax structure. For purposes of the
foregoing, the term "tax treatment" is the purported or claimed federal income
tax treatment of the transactions contemplated hereby, and the term "tax
structure" includes any fact that may be relevant to understanding the purported
or claimed federal income tax treatment of the transactions contemplated hereby.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o Merrill Xxxxx &
Co., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Syndicate
Desk and c/o X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Syndicate Desk, with a copy to Xxxxxxx Xxxx Xxxxx,
Esq., Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, Xxx Xxx Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; notices to the Company shall be directed to it at 00
Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, attention of Chief Executive Officer,
with a copy to Xxxxxx X. Xxxxxxx, Esq., Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000.
SECTION 13. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. NO ADVISORY OR FIDUCIARY RELATIONSHIP. The Company
acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering
price of the Securities and any related discounts and commissions, is an
arm's-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates
25
may be engaged in a broad range of transactions that involve interests that
differ from those of the Company, and (e) the Underwriters have not provided any
legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 15. INTEGRATION. This Agreement supersedes all prior agreements
and understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 18. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 19. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
CELGENE CORPORATION
By
-------------------------------
Title:
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
----------------------------------------------------------
Authorized Signatory
By: X.X. XXXXXX SECURITIES INC.
By
----------------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
28
SCHEDULE A
Number of
Name of Underwriter U.S. Securities
------------------- ---------------
Xxxxxxx Lynch, Pierce, Xxxxxx &Smith
Incorporated........................................... 5,072,000
X.X. Xxxxxx Securities Inc..................................... 5,072,000
Bear, Xxxxxxx & Co. Inc........................................ 1,792,000
Citigroup Global Markets Inc................................... 1,792,000
Xxxxxxx, Xxxxx & Co............................................ 1,792,000
Xxxxxx Xxxxxxx & Co. Incorporated.............................. 1,792,000
Friedman, Billings, Xxxxxx & Co., Inc.......................... 384,000
JMP Securities LLC............................................. 384,000
Lazard Capital Markets LLC..................................... 384,000
Leerink Xxxxx & Co., Inc. 384,000
Xxxxx Xxxxxxx & Co. ........................................... 384,000
Xxxxxx & Xxxxxxx, LLC.......................................... 384,000
Xxxxxx Xxxxxx Partners LLC..................................... 384,000
--------------
Total 20,000,000
==============
Sch A
SCHEDULE B
Celgene Corporation
20,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $51.60.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $50.34, being an amount equal to the initial
public offering price set forth above less $1.26 per share.
Sch B-1
SCHEDULE C
SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS
None
INFORMATION INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
1. Number of Shares Sold
2. Price Per Share
Sch C
SCHEDULE D
List of Subsidiaries
-----------------------------------------------------------------------------
STATE OR OTHER JURISDICTION
NAME OF INCORPORATION
-----------------------------------------------------------------------------
Signal Pharmaceuticals, Inc. California
-----------------------------------------------------------------------------
Anthrogenesis Corp. New Jersey
-----------------------------------------------------------------------------
Celgene International SARL Switzerland
-----------------------------------------------------------------------------
Sch D
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)*
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and to enter into and perform
its obligations under the Underwriting Agreement.
(iii) Based solely on the New Jersey Good Standing
Certificate, the Company is duly qualified as a foreign corporation to
transact business and is in good standing in New Jersey.
(iv) The authorized capital stock of the Company conforms to
the description thereof in the Registration Statement, General
Disclosure Package and Prospectus.
(v) The Securities have been duly authorized and, when issued
and delivered by the Company in accordance with the terms of the
Underwriting Agreement, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to
personal liability by reason of being such a holder.
(vi) To our knowledge,** the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder
of the Company.
(vii) Each Significant Subsidiary listed on Annex A(1) to this
opinion (a) has been duly organized and is validly existing as a
corporation or other legal entity in good standing under the laws of
the jurisdiction of its incorporation or formation,(2) (b) has power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus(3) and (c) is duly
qualified as a foreign corporation or other legal entity to transact
business and is in good standing in each jurisdiction listed on Annex B
to this opinion(4); except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock or other
equity of each Significant Subsidiary(5) has been duly authorized and
validly issued, is fully paid and non-assessable and, to our knowledge,
is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; to our knowledge, none of the outstanding shares of
capital stock or other equity of any subsidiary was issued in violation
of the preemptive or similar rights of any securityholder of such
subsidiary.(6)
--------------
* Proskauer and Xxxxx Xxxxx to discuss which counsel will deliver which
opinions.
** The definition of knowledge, if included in the opinion, must include all
attorneys at the firm who have rendered substantive legal advice to the Company
within the last twelve months.
(1) Proskauer will opine as to U.S. Significant Subsidiaries only.
(2) Proskauer will rely solely on good standing certificates with respect to
U.S. subsidiaries that are not Delaware or New York corporations.
(3) Proskauer will opine as to Delaware and New York corporations only.
(4) Proskauer will rely solely on good standing certificates with respect to
U.S. subsidiaries that are not Delaware or New York corporations.
(5) Proskauer will opine as to corporations it assisted in the formation of.
(6) Proskauer will opine as to corporations it assisted in the formation of.
A-1
(viii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(ix) The Registration Statement has been become effective
under the 1933 Act; any required filing of each prospectus relating to
the Securities (including the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b) (without reference to Rule 424(b)(8)); any required filing of
each Issuer Free Writing Prospectus of which we are aware pursuant to
Rule 433 has been made in the manner and within the time period
required by Rule 433(d); and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(x) The Registration Statement, including and without
limitation the Rule 430B Information, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and the Prospectus, excluding
the documents incorporated by reference therein, as of their respective
effective or issue dates (including without limitation each deemed
effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) of the 1933 Act Regulations), other than the financial
statements and supporting schedules included therein or omitted
therefrom, as to which we express no opinion, complied as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(xi) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we express no opinion), when
they were filed with the Commission complied as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations of the Commission thereunder.
(xii) To our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which would
reasonably be expected to result in a Material Adverse Effect, or which
would reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in the Underwriting
Agreement or the performance by the Company of its obligations
thereunder.
(xiii) The statements in the Prospectus under "Description of
Capital Stock--Common Stock" and "Description of Capital
Stock--Preferred Stock," in the Registration Statement under Item 15
[and in the Company's Form 10-K under "Risk Factors--The Pharmaceutical
Industry is Subject to Extensive Government Regulation Which Presents
Numerous Risks to Us," "Business--Commercial Stage Program,"
"Business--Governmental Regulation," "Business--Manufacturing" and
"Business--Government Regulation,"](7) insofar as such statements
constitute matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions, have
been reviewed by [us][me] and are correct in all material respects.
------------------
(7) Proskauer will not cover these sections in its opinion; other counsel will
cover in a form reasonably acceptable to the Representatives.
A-2
(xiv) To our knowledge, no filing with, or authorization,
approval or consent of, any court or governmental agency or body,
domestic (other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we express no opinion)
is required to be obtained in connection with the sale of the
Securities.
(xv) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use Of
Proceeds") and compliance by the Company with its obligations under the
Underwriting Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, result in a breach or
violation of, or constitute a default or Repayment Event (as defined in
Section 1(a)(xiii) of the Underwriting Agreement) under or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to any
agreement or instrument that is an exhibit to the Incorporated
Documents,(8) the provisions of the charter or by-laws of the Company
or any subsidiary that is a New York or Delaware entity, or any
statute, rule, regulation or order known to us of any governmental
agency or body having jurisdiction over the Company or any subsidiary
that is a New York or Delaware entity or any of their respective
properties.
(xvi) To our knowledge, there are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement.
(xvii) The Company is not, and after giving effect to the
issuance and sale of the Securities and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" under the 0000 Xxx.
(xviii) The Rights under the Company's Shareholder Rights Plan
to which holders of the Securities will be entitled have been duly
authorized and validly issued.
In addition, we have participated in conferences with certain officers
and other representatives of the Company, representatives of the Company's
independent registered public accounting firm, representatives of the
Underwriters and representatives of the Underwriters' counsel at which the
contents of the Registration Statement, the Prospectus and the General
Disclosure Package and related matters were discussed and, although we are not
passing upon, do not assume any responsibility for, and have not independently
checked or verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus and the General
Disclosure Package, on the basis of the foregoing, nothing has come to our
attention that would lead us to believe that (i) the Registration Statement
(other than the financial statements and related notes and schedules thereto and
other financial and accounting data, included in, or omitted therefrom, as to
which we express no belief), as of its effective 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 not misleading, (ii)
the Prospectus (other than the financial statements and related notes and
schedules thereto and other financial and accounting data, included in, or
omitted therefrom, as to which we express no belief), as of its date and the
Closing Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits 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, or (iii) the General
Disclosure Package and any amendment or supplement thereto (other than the
financial statements and related notes and
----------------
(8) Proskauer will assume that the governing law for any such agreements that
are not governed by New York law is the same as New York law.
A-3
schedules thereto and other financial and accounting data, included in, or
omitted therefrom, as to which we express no belief), as of the Applicable Time
or as of the Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits 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 we do
not know of any legal or governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described as required or
of any contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-4
