CELGENE CORPORATION
3,000,000 Shares of Common Stock
Underwriting Agreement
February [ ], 2000
X.X. Xxxxxx Securities Inc.
Prudential Securities Incorporated
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the several Underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Celgene Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell 2,484,000 shares (the "Company Shares") of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company, and Xxxxxxx Mezzanine
Partners L.P., a partnership formed under the laws of the State of Delaware,
Xxxx Xxxxxxx Life Insurance Company, a Massachusetts corporation, Xxxx Xxxxxxx
Variable Life Insurance Company, a Massachusetts corporation, and Signature 1A
(Cayman), Ltd., a corporation organized under the laws of the Cayman Islands
(each individually referred to as a "Selling Stockholder" and collectively
referred to as the "Selling Stockholders") propose to sell an aggregate of
516,000 shares (the "Selling Stockholder Shares") of Common Stock of the Company
to the several Underwriters listed in Schedule I hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"). The Company
Shares and the Selling Stockholder Shares are herein referred to as the
"Underwritten Shares." In addition, for the sole purpose of covering
over-allotments in connection with the sale of the Underwritten Shares, the
Company proposes to issue and sell to the Underwriters, at the option of the
Underwriters, up to an additional 450,000 shares (the "Option Shares") of Common
Stock. The Underwritten Shares and the Option Shares are herein referred to as
the "Shares."
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The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3, including a prospectus, relating to the Shares. The
registration statement as amended at the time when it became or shall become
effective, including information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is referred to in this Agreement as the "Registration
Statement," and the prospectus in the form first used to confirm sales of Shares
is referred to in this Agreement as the "Prospectus." If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act ("Rule 462 Registration Statement"), then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such preliminary prospectus or the
Prospectus, as the case may be, and any reference to "amend," "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
The Company and each of the Selling Stockholders hereby agrees with the
Underwriters as follows:
1. The Company agrees to issue and sell the Company Shares and each of the
Selling Stockholders agrees, severally and not jointly, to sell the Selling
Stockholder Shares to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from each of the Company and each of the Selling
Stockholders at a purchase price per share of $[ ] (the "Purchase Price") the
number of Underwritten Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of
Underwritten Shares to be sold by the Company and by each of the Selling
Stockholders as set forth opposite their respective names under the heading
"Number of Underwritten Shares" in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Underwritten Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is the aggregate number of
Underwritten Shares to be purchased by all the Underwriters from the Company and
all the Selling Stockholders hereunder.
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In addition, the Company agrees to issue and sell the Option Shares to the
several Underwriters as hereinafter provided, and the Underwriters, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, shall have the option to purchase, severally and
not jointly, from the Company at the Purchase Price that portion of the number
of Option Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Option Shares by a fraction, the numerator of which is the
maximum number of Underwritten Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum number of Option Shares which all of
the Underwriters are entitled to purchase hereunder, for the sole purpose of
covering over-allotments (if any) in the sale of Underwritten Shares by the
several Underwriters.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised and the date and time when the Option Shares
are to be delivered and paid for, which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than the Closing
Date nor later than the tenth full Business Day (as hereinafter defined) after
the date of such notice (unless such time and date are postponed in accordance
with the provisions of Section 9 hereof). Any such notice shall be given at
least two Business Days prior to the date and time of delivery specified
therein.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the accounts specified by the Company, in the case of the
Company Shares, and to the accounts specified by the Selling Stockholders, in
the case of the Selling Stockholder Shares, to the Representatives on February
[ ], 2000, or at such other time on the same or such other date, not later than
the fifth Business Day thereafter, as the Representatives, the Company and the
Selling Stockholders may agree upon in writing, or to an account specified to
the Representatives by the Company, in the case of the Option Shares, on the
date and time specified by the Representatives in the written notice of the
Underwriters' election to purchase such Option Shares. The time and date of such
payment for the Underwritten Shares is referred to herein as the "Closing Date,"
and the time and date for such payment for the Option Shares, if other than the
Closing Date, are herein referred to as the "Additional Closing Date."
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As used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Company Shares and the Option Shares duly paid by the
Company and any transfer taxes payable in connection with the transfer to the
Underwriters of the Selling Stockholder Shares duly paid by the Selling
Stockholders. The certificates for the Shares will be made available for
inspection and packaging by the Representatives at the office of X.X. Xxxxxx
Securities Inc. set forth above not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date or the Additional Closing Date, as
the case may be.
4. (A) The Company represents and warrants to the Underwriters and the
Selling Stockholders that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, that this
representation and warranty shall not apply to any statements in, or
omissions from, the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission, and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment or
supplement thereto,
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contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date or Additional Closing
Date, as the case may be, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, that the foregoing representations and
warranties shall not apply to any statements in, or omissions from,
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; any further
documents so filed and incorporated by reference in the Prospectus, when
such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(d) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company as of the dates indicated and the consolidated results of its
operations and changes in cash flows for the periods specified; such
financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis, and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in
the capital stock or long-term debt of the Company or its subsidiary, or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiary, taken as a whole (a
"Material Adverse Change"), otherwise than as set forth or contemplated in
the Prospectus; and except as set forth or contemplated in the Prospectus,
neither the Co-
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mpany nor its subsidiary has entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the
Company and its subsidiary, taken as a whole;
(f) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good standing would
not have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiary, taken as a whole (a
"Material Adverse Effect");
(g) the Company has no subsidiaries other than Celgro Corporation
("Celgro"); the Company's subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and all the outstanding
shares of capital stock of the Company's subsidiary have been duly
authorized and validly issued, are fully-paid and non-assessable, and are
owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(h) this Agreement has been duly authorized, executed and delivered by
the Company;
(i) the Company has an authorized capitalization as set forth in the
Prospectus and such authorized capital stock conforms to the description
thereof set forth in the Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
are fully paid and non-assessable and are not subject to any pre-emptive or
similar rights; and, except as described in or expressly contemplated by
the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company, its subsidiary, or any
contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company,
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its subsidiary, any such convertible or exchangeable securities or any such
rights, warrants or options;
(j) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued and will be fully paid and non-assessable and will conform
to the description thereof set forth in the Prospectus; and the issuance of
such Shares is not subject to any preemptive or similar rights;
(k) the Shares to be sold by the Selling Stockholders hereunder
issuable upon the conversion of a portion of the 9.00% Convertible Notes
due January 20, 2004 (each a "Note" and collectively, the "Notes") by the
Selling Stockholders have been duly and validly authorized and reserved for
issuance, and at the time of delivery to the Underwriters with respect to
such Shares (assuming prior delivery of the Notes to the Company for
conversion), such Shares will be issued and delivered in accordance with
the provisions of the Note between the Company and such Selling Stockholder
and will be validly issued and will be fully paid and non-assessable and
will conform to the description thereof set forth in the Prospectus;
(l) the Notes were duly authorized, executed and delivered and
constitute valid and binding instruments enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and Notes
conform to the description thereof set forth in the Prospectus;
(m) neither the Company nor its subsidiary is, or with the giving of
notice or lapse of time or both would be, in breach or violation of or in
default under its certificate of incorporation or by-laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which any of the Company or its subsidiary is a party or by which the
Company or its subsidiary is bound or to which any of their respective
properties or assets is subject, except for violations and defaults which
individually and in the aggregate would not have a Material Adverse Effect;
the issuance and sale of the Shares to be sold by the Company hereunder,
the issuance by the Company of the Shares to be issued upon conversion of
the Notes and sold by the Selling Stockholders hereunder and the
performance by the Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or its
subsidiary is a party or by which the Company or its subsidiary is bound or
to which any of their respective
8
properties or assets is subject, nor will any such action result in any
violation of the provisions of the certificate of incorporation or the
by-laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiary or any of their respective
properties; no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(n) other than as set forth in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or, to
the knowledge of the Company, threatened against or affecting the Company
or its subsidiary or any of their respective properties or to which the
Company or its subsidiary is or may be a party or to which any property of
the Company or its subsidiary is or may be subject which, if determined
adversely to the Company or its subsidiary, could individually or in the
aggregate have, or reasonably be expected to have, a Material Adverse
Effect; and, to the knowledge of the Company, no such proceedings are
threatened or contemplated by any governmental authorities or threatened by
others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required;
(o) the Company and its subsidiary have good and marketable title to
all personal property owned by them, free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made or proposed to be made of such
property by the Company and its subsidiary; and any real property and
buildings held under lease by the Company and its subsidiary are held by
them under valid, existing and enforceable leases with such exceptions as
are not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or its subsidiary;
(p) no relationship, direct or indirect, exists between or among the
Company or its subsidiary, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or its subsidiary, on
the other hand, which is required by the Securities Act to be described in
the Registration Statement and the Prospectus which is not so described;
9
(q) except for rights which have been waived or exercised, no person
has the right to require the Company to register any securities for
offering and sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission, or the issuance and sale of the
Shares to be sold by the Company hereunder or, to the knowledge of the
Company, the sale of the Shares to be sold by the Selling Stockholders
hereunder;
(r) the Company is not, and after giving effect to the issuance and
sale of the Shares will not be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(s) KPMG LLP ("KPMG"), who have certified certain consolidated
financial statements of the Company, are independent public accountants as
required by the Securities Act;
(t) the Company and its subsidiary have filed all 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 either
of them to the extent that such taxes have become due and are not being
contested in good faith; and no tax deficiency has been determined
adversely to the Company and there is no tax deficiency which has been or
might reasonably be expected to be asserted or threatened against the
Company or its subsidiary;
(u) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock;
(v) the statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources which are believed by the Company to be reliable;
(w) each of the Company and its subsidiary owns, possesses or has
obtained 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 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, and neither the Company nor its subsidiary 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 State-
10
ment and the Prospectus; and each of the Company and its subsidiary is in
compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof;
(x) each of the Company and its subsidiary owns, is licensed to use or
otherwise possesses adequate rights to use the patents, patent rights,
licenses, inventions, trademarks, service marks, trade names, copyrights
and know-how, including trade secrets 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 Intellectual Property would not individually or in the
aggregate be reasonably expected to have a Material Adverse Effect; except
as set forth in the Registration Statement and the Prospectus, the Company
has not received any notice of infringement of or conflict with, and the
Company has no knowledge of any infringement of or conflict with, asserted
rights of others with respect to the Intellectual Property which could,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; except as set forth in the Registration Statement
and the Prospectus, the discoveries, inventions, products or processes of
the Company referred to in the Registration Statement and the Prospectus do
not, to the knowledge of the Company, infringe on or conflict with any
right or patent of any third party, or any discovery, invention, product or
process which is the subject of a patent application filed by any third
party (which patent application has been published or is otherwise known to
the Company) which could, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; except as set forth in the
Registration Statement and the Prospectus, the Company is not obligated to
pay any royalty, grant any license or provide other consideration to any
third party in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and know-how
which could reasonably be expected to result in a Material Adverse Effect;
and no third party, including any academic or governmental organization,
possesses rights to the Intellectual Property which, if exercised, could
reasonably be expected to have a Material Adverse Effect;
(y) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, the studies, tests and
preclinical and clinical trials conducted by or on behalf of the Company
that are described in the Registration Statement and the Prospectus were
and, if still pending, are being conducted in accordance with experimental
protocols, procedures and controls pursuant to, where applicable, accepted
professional scientific standards, except where the failure to so conduct
could not reasonably be expected to result in a Material Adverse Effect;
the des-
11
criptions of the results of such studies, tests and trials contained in the
Registration Statement and the Prospectus are accurate and complete in all
material respects; and the Company has not received any notices or
correspondence from the U.S. Food and Drug Administration 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;
(z) there are no existing or, to the knowledge of the Company,
threatened labor disputes with the employees of the Company or its
subsidiary which could reasonably be expected to have a Material Adverse
Effect;
(aa) the Company and its subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate 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;
(bb) the Company and its subsidiary (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
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;
(cc) in the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiary, in the course
of which it identifies and evaluates associated costs and liabilities
(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); on the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not individually or in the
aggregate have a Material Adverse Effect;
12
(dd) each employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that
is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its
affiliates has been maintained in material compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended (the "Code"); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; for each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency," as defined in Section 412 of the Code,
has been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceed the present value of all benefits accrued under such
plan determined using reasonable actuarial assumptions;
(ee) the Company has not distributed and, prior to the later of (i)
the Closing Date and (ii) the completion of the distribution of the Shares,
will not distribute any offering material in connection with the offering
and sale of the Shares other than the Registration Statement, the
Prospectus, any amendment or supplement thereto, any preliminary prospectus
or any other materials, if any, permitted by the Securities Act; and
(ff) the Company and its subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(B) Each of the Selling Stockholders severally represents and warrants to
each of the Underwriters and the Company that:
(a) such Selling Stockholder has been duly formed and is validly
existing as a corporation or partnership, as the case may be, in good
standing under its jurisdiction of incorporation or formation, as the case
may be;
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(b) this Agreement has been duly authorized, executed and delivered by
such Selling Stockholder;
(c) the sale of the Shares to be sold by such Selling Stockholder hereunder
and the compliance by such Selling Stockholder with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such action result
in any violation of the provisions of the certificate of incorporation or
by-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the partnership agreement of such Selling Stockholder if such
Selling Stockholder is a partnership, or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder, in each case other than such conflicts, breaches,
violations or defaults which individually or in the aggregate (i) would not
have a material adverse effect on the general affairs, business, prospects,
management, financial position or results of operations of such Selling
Stockholder, (ii) would not have a Material Adverse Effect and (iii) would
not affect the validity, performance or consummation of the transactions
contemplated herein; no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by such Selling Stockholder
of the transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(d) such Selling Stockholder will have, immediately prior to the
Closing Date and assuming due issuance of the Shares to be sold by such
Selling Stockholder to be issued upon conversion of the Notes, good and
valid title to such Shares free and clear of all mortgages, pledges,
security interests, liens, claims, encumbrances or equities, with full
right and authority to deliver the same hereunder; upon delivery of and
payment for such Shares pursuant to this Agreement, good and valid title to
such Shares, free and clear of all liens, encumbrances, equities or claims,
will pass to the Underwriters, assuming the Underwriters have purchased
such Shares in good faith and without notice of any such lien, encumbrance,
equity or claim or any other adverse claim within the meaning of the
Uniform Commercial Code (as in effect in the State of New York);
14
(e) such Selling Stockholder has not taken nor will it take, directly
or indirectly, any action designed to, or which might reasonably be
expected to, cause or result in stabilization or manipulation of the price
of the Common Stock;
(f) the sale of the Shares to be sold by such Selling Stockholder
hereunder is not prompted by any material information concerning the
Company or its subsidiary which is not set forth in the Registration
Statement or the Prospectus;
(g) to the extent, and only to the extent, of written information
relating to such Selling Stockholder furnished to the Company in writing by
or on behalf of such Selling Stockholder expressly for use in any
preliminary prospectus, each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, did not
contain an untrue statement of a material fact or omit to state a material
fact, in each case with respect to such Selling Stockholder, required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(h) to the extent, and only to the extent, of written information
relating to such Selling Stockholder furnished to the Company in writing by
or on behalf of such Selling Stockholder expressly for use in the
Registration Statement and the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto),
the Registration Statement and the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto)
do not and will not, as of the applicable effective date of the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact, in each
case with respect to such Selling Stockholder, required to be stated
therein or necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing Date,
will not contain any untrue statement of a material fact or omit to state a
material fact, in each case with respect to such Selling Stockholder,
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and
(i) such Selling Stockholder has not distributed and, prior to the
later of (i) the Closing Date and (ii) the completion of the distribution
of the Shares, will not distribute any offering material in connection with
the offering and sale of the Shares other than the Registration Statement,
the Prospectus, any amendment or supplement thereto, any preliminary
pro-
15
spectus or any other materials, if any, permitted by the Securities Act.
5. (A) The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file
the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act and to file promptly
all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; and to
furnish copies of the Prospectus to the Underwriters in New York City prior
to 10:00 a.m., New York City time, on the Business Day next succeeding the
date of this Agreement in such quantities as the Representatives may
reasonably request;
(b) to deliver, at the expense of the Company, to the Representatives
four signed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits and documents
incorporated by reference therein, and to each other Underwriter a
conformed copy of the Registration Statement (as originally filed) and each
amendment thereto, in each case without exhibits but including the
documents incorporated by reference therein and, during the period referred
to in paragraph (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as the Representatives may
reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Representatives
a copy of the proposed amendment or supplement for review and not to file
any such proposed amendment or supplement to which the Representatives
reasonably object;
(d) to advise the Representatives promptly, and to confirm such advice
in writing (i) when the Registration Statement has become effective, (ii)
when any amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose,
16
(vi) of the occurrence of any event, within the period referenced in
paragraph (e) below, as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, and (vii) of the receipt by the Company of
any notification with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding
for such purpose; and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use of
any preliminary prospectus or the Prospectus, or of any order suspending
any such qualification of the shares, or notification of any such order
thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall
occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
the Representatives will furnish to the Company) to which Shares may have
been sold by the Representatives on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Shares; provided that
the Company shall not be required to file a general consent to service of
process in any such jurisdiction;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
17
(h) so long as the Shares are outstanding, to furnish to the
Representatives copies of all reports or other communications (financial or
other) furnished to holders of the Shares, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) for a period of 90 days after the date of the initial public offering
of the Shares, not to, directly or indirectly, (i) offer, pledge, announce
the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any shares
of Common Stock or any securities of the Company which are substantially
similar to the Common Stock, including but not limited to any securities
convertible into or exercisable or exchangeable for, or that represent the
right to receive, Common Stock or (ii) enter into any swap, option, future,
forward or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock or any securities of
the Company which are substantially similar to the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise
without the prior written consent of X.X. Xxxxxx Securities Inc., in each
case other than (w) the Shares to be sold by the Company hereunder, (x) any
options to be granted or shares of Common Stock issued upon exercise of
options granted or to be granted under the Company's employee or director
stock option plans existing on the date of the Prospectus, (y) shares of
Common Stock issued upon exercise of warrants of the Company outstanding on
the date of the Prospectus or (z) shares of Common Stock issued upon
conversion of convertible notes of the Company (including but not limited
to the Notes) outstanding on the date of the Prospectus;
(j) to use the net proceeds received by the Company from the sale of
the Shares to be sold by the Company hereunder by the Company pursuant to
this Agreement in a manner consistent with the description of the use of
proceeds in the Prospectus under the caption "Use of Proceeds";
(k) to list, subject to official notice of issuance, the Shares on the
Nasdaq National Market (the "Nasdaq National Market"); and
(l) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, registration, transfer,
execution, issuance and delivery of the Shares, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Regis-
18
tration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification of the Shares
under the laws of such jurisdictions as the Representatives may designate
(including fees of counsel for the Underwriters and its disbursements),
(iv) in connection with the listing of the Shares on the Nasdaq National
Market, (v) related to the filing with, and clearance of the offering by,
the National Association of Securities Dealers, Inc., (vi) in connection
with the printing (including word processing and duplication costs) and
delivery of this Agreement, any blue sky memoranda and the furnishing to
the Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as
herein provided, (vii) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors, (viii) the cost of
preparing stock certificates and (ix) the cost and charges of any transfer
agent and any registrar.
(B) Each of the Selling Stockholders covenants and agrees with the several
Underwriters as follows:
(a) prior to the Closing Date, to take all action required under the
Notes by such Selling Stockholder to convert a portion of the Notes into
the Shares to be sold by such Selling Stockholder hereunder; and
(b) for a period of 90 days after the date of the initial public
offering of the Shares, not to, directly or indirectly, (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any shares of Common Stock or any securities of the Company which are
substantially similar to the Common Stock, including but not limited to any
securities convertible into or exercisable or exchangeable for, or that
represent the right to receive, Common Stock or (ii) enter into any swap,
option, future, forward or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock or
any securities of the Company which are substantially similar to the Common
Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise or (iii) make any demand for or exercise any right with
respect to the registration of any shares of Common Stock or any securities
of the Company which are substantially similar to the Common Stock without
the prior written consent of X.X. Xxxxxx Securities Inc., in each case
other than (x) the Shares to be sold by such Selling Stockholder hereunder,
(y) Common Stock to be issued upon conversion of any Note and (z) transfers
of any Note, or the shares of Common Stock issued upon conversion of such
Note, to an affiliate (as such term is defined in the Securities Act) of
such Selling Stock-
19
holder or an entity for which such Selling Stockholder
acts as an investment advisor or manager, provided that such affiliate or
such entity, as applicable, agrees to be bound by the terms of this Section
5(B)(b).
6. The several obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date or the Additional Closing Date, as the case may be,
are subject to the performance by the Company and each of the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than
5:00 P.M., New York City time, on the date hereof; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
Section 5(A) hereof; and all requests for additional information shall have
been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Company and the Selling
Stockholders contained herein are true and correct on and as of the Closing
Date or the Additional Closing Date, as the case may be, as if made on the
Closing Date or the Additional Closing Date, as the case may be, and the
Company and each of the Selling Stockholders shall have complied with all
agreements and all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date or the Additional Closing Date,
as the case may be;
(c) since the respective dates as of which information is given in the
Prospectus, there shall not have been any change in the capital stock or
long-term debt of the Company or any Material Adverse Change, or any
development involving a prospective Material Adverse Change, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the
Closing Date or the Additional Closing Date, as the case may be, on the
terms and in the manner contemplated in the Prospectus; and neither the
Company nor its subsidiary has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus;
20
(d) the Representatives shall have received on and as of the Closing Date
or the Additional Closing Date, as the case may be, (1) a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company,
satisfactory to the Representatives, to the effect set forth in subsections
(a) through (d) (with respect to the respective representations,
warranties, agreements and conditions of the Company) of this Section 6 and
to the further effect that there has not occurred any Material Adverse
Change, or any development involving a prospective Material Adverse Change,
from that set forth or contemplated in the Registration Statement and (2) a
certificate of an executive officer of each of the Selling Stockholders,
satisfactory to the Representatives to the effect set forth in subsection
(b) of this Section 6 (with respect to the respective representations,
warranties, agreements and conditions of the Selling Stockholders);
(e) Proskauer Rose LLP, counsel for the Company, shall have furnished
to the Representatives their written opinion, dated the Closing Date or the
Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, to the effect that:
(i) the Registration Statement has become effective under the
Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or
suspending or preventing the use of the Prospectus is in effect and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission;
(ii) based solely on certificates of public officials in the case
of clauses (x) and (z) below, (x) the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, (y) the Company has the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and (z) the Company has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of the State of New
Jersey;
(iii) based solely on certificates of public officials in the
case of clauses (x) and (z) below, (x) Celgro has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of Delaware, (y) Celgro has the corporate power and
authority to own its properties and conduct its business as described
in the Prospectus, and (z) Celgro has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of New Jersey; and all the outstanding shares of
capital stock of Celgro have been duly authorized and validly issued,
are fully-paid and non-assessable, and are owned by the Company,
directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims;
(iv) other than as set forth in the Prospectus, to the best of
such counsel's knowledge, there are no actions, suits or proceedings
pending or threatened against the Company or its subsidiary or any of
their respective properties which are required to be described in the
Prospectus but are not so described; and to the best of such counsel's
knowledge, there are no contracts or other documents that are required
to be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
21
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Company has an authorized capitalization as set forth
under "Capitalization" in the Prospectus;
(vii) all of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are free of statutory and, to such
counsel's knowledge, contractual pre-emptive rights; and, except as
described in or expressly contemplated by the Prospectus and to the
best of such counsel's knowledge, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the
Company, its subsidiary, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company, its subsidiary, any such convertible
or exchangeable securities or any such rights, warrants or options;
(viii) the Company Shares and the Option Shares, when issued and
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will be duly and validly authorized and
issued and will be fully paid and non-assessable; and the Company
Shares and the Option Shares, when issued, will be free of statutory
and, to our knowledge, contractual preemptive rights;
(ix) the issuance of the Selling Stockholder Shares in accordance
with the terms of the Notes upon conversion by the Selling
Stockholders has been duly authorized and reserved for issuance, and
when issued in accordance with the terms of the Notes, will be validly
issued, fully paid and non-assessable;
(x) the Notes were duly and validly authorized, executed and
delivered and constitute legal, valid and binding obligations
enforceable in accordance with their terms, except as may be limited
by bankruptcy, insolvency, reorganization and other similar laws
affecting the rights and remedies of creditors generally and general
equity principles, whether applied by a court of equity or law;
(xi) to such counsel's knowledge, except for rights which have
been waived, no person has the right to require the Company to
register any securities for offering and sale under the Securities Act
by reason of the filing of the Registration Statement with the
Commission, or the issuance and sale of the
22
Shares to be sold by the Company hereunder or, to the knowledge of
such counsel, the sale of the Shares to be sold by the Selling
Stockholders hereunder;
(xii) the statements in the Prospectus under "Description of
Capital Stock" and in the Registration Statement in Item 15, insofar
as such statements constitute a summary of the terms of the Common
Stock, legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such terms,
legal matters, documents or proceedings;
(xiii) the Registration Statement and the Prospectus and any
supplement or amendment thereto (other than any financial statements
and related schedules therein as to which no belief need be expressed)
comply as to form in all material respects with the Securities Act;
(xiv) such counsel shall state that they have, in the course of
the preparation of the Registration Statement and the Prospectus,
participated in conferences with officers and other representatives of
the Company, with the Company's independent public accountants and the
Underwriters, at which conferences they made certain inquiries and
investigations in connection with the Registration Statement and
Prospectus and (without taking any further action to verify
independently the accuracy or completeness of the statements made in
the Registration Statement and the Prospectus and, except as stated in
their opinion, without assuming responsibility for the accuracy,
completeness or fairness of such statements) nothing has come to their
attention that causes them to believe that either the Registration
Statement in the form it originally became effective under the
Securities Act and as of the Closing Date or the Additional Closing
Date, as the case may be, contained or contains any 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 not misleading or that the Prospectus as of its date or as of
the Closing Date or the Additional Closing Date, as the case may be,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading (except that such counsel makes no statement
with respect to the financial statements and supporting schedules and
other financial data derived therefrom included in or omitted from the
Registration Statement or the Prospectus).
(xv) the issuance and sale of the Shares being delivered by the
Company on the Closing Date or the Additional Closing Date, as the
case may be, the
23
issuance of the Shares to be sold by the Selling Stockholders
hereunder to be issued upon conversion of the Notes and the
performance by the Company of its obligations under this Agreement and
the consummation of the transactions contemplated herein will not
conflict with or result in a breach of, or constitute a default under
(nor constitute an event which with notice, lapse of time, or both,
would constitute a breach of or default under) provisions of (A) any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or its subsidiary is a party or by
which the Company or its subsidiary is bound or to which any of their
respective properties or assets is subject, (B) the certificate of
incorporation or the by-laws of the Company, (C) any federal or New
York law, regulation, rule, or the General Corporation Law of the
State of Delaware, or (D) to such counsel's knowledge, any decree,
judgment or order applicable to the Company or its Subsidiary, except,
in each case other than Clause (B) above, for conflicts breaches or
defaults which would not have, or would not be reasonably likely to
have, a Material Adverse Effect;
(xvi) no consent, approval, authorization or order of, or filing
with, any federal, state or local government or regulatory commission,
board, body, authority or agency is required for the consummation by
the Company of the transactions contemplated by this Agreement, other
than registration under the Securities Act (except that we express no
opinion as to any necessary qualification under state securities or
blue sky laws in connection with the purchase and distribution of the
Shares by the Underwriters);
(xvii) the Company is not, and after giving effect to the
issuance and sale of the Shares will not be, an "investment company"
or an entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act; and
(xviii) the documents filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus or any further amendment
or supplement thereto by the Company prior to the Closing Date or the
Additional Closing Date, as the case may be (except as to the
financial statements and related schedules therein, as to which no
belief need be expressed), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act, and the rules and regulations of the Commission
thereunder.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States
and the States of New
24
York and Delaware, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions
(in form and substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel, familiar
with the applicable laws; (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel upon
which they relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters and they are justified in relying
thereon.
The opinion of Proskauer Rose LLP described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein;
(f) Xxxxxx X. Xxxxxx, Esq., Vice President and Counsel of Xxxx Xxxxxxx
Life Insurance Company, shall have furnished to the Representatives her
written opinion, dated the Closing Date or the Additional Closing Date, as
the case may be, in form and substance satisfactory to the Representatives,
to the effect that:
(i) each of the Selling Stockholders has full legal right, power
and authority to enter into this Agreement;
(ii) this Agreement has been duly authorized, executed and
delivered by each Selling Stockholder;
(iii) the execution, delivery and performance of this Agreement
by each Selling Stockholder, compliance by each Selling Stockholder
with all of the provisions herein and the consummation of the
transactions contemplated hereby will not (a) require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except for filings for
informational purposes and except such as may be required under the
Securities Act and state securities or Blue Sky laws), (b) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws (if a corporation) or the
partnership agreement (if a partnership), of such Selling Stockholder,
(c) to her knowledge, conflict with or constitute a material breach of
any of the terms or provisions of, or a material default under, any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to such Selling Stockholder, or (d) to her
knowledge, violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or
its property, in any manner
25
which, individually or in the aggregate, would affect the validity,
performance or consummation of the transactions contemplated by this
Agreement;
(iv) to her knowledge, on the date on which each Selling
Stockholder delivered its Shares to the Underwriters, such Selling
Stockholder had good and valid title to the Shares listed beside such
Selling Stockholder's name on Schedule II attached hereto, free and
clear of all liens, encumbrances, equities or claims, and each Selling
Stockholder had full right, power and authority to sell, assign,
transfer and deliver such Shares;
(v) upon delivery of and payment for the Shares being sold by the
Selling Stockholders pursuant to this Agreement, good and valid title
to such Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the Underwriters, assuming such Underwriters have
purchased such Shares in good faith and without notice of any such
lien, encumbrance, equity or claim or any other adverse claim within
the meaning of the Uniform Commercial Code (as in effect in the State
of New York);
(vi) such counsel shall state that no facts have come to her
attention to cause her to believe that to the extent, and only to the
extent, that written information relating to the Selling Stockholders
was furnished to the Company by or on behalf of the Selling
Stockholders expressly for use in the Registration Statement and the
Prospectus, (A) the Registration Statement and the Prospectus included
therein (other than any financial statements and related schedules
therein as to which no belief need be expressed) at its effective date
contained an untrue statement of a material fact or omitted to state a
material fact, in each case with respect to the Selling Stockholders,
required to be stated therein or necessary to make the statements
contained therein not misleading or (B) the Prospectus (other than any
financial statements and related schedules therein as to which no
belief need be expressed), as of its date and as of the Closing Date
or the Additional 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, in each case with respect to the Selling
Stockholders, necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States
and the Commonwealth of Massachusetts, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable
26
to the Underwriters' counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the any of the Selling Stockholders and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of any Selling Stockholder. The opinion of such counsel for the
Selling Stockholder shall state that the opinion of any such other counsel
upon which they relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters and they are justified in relying
thereon.
The opinion of Xxxxxx X. Xxxxxx, Esq., described above shall be
rendered to the Underwriters at the request of the Selling Stockholders and
shall so state therein;
(g) on the date hereof and the effective date of the most recently
filed post-effective amendment filed on or subsequent to the date hereof to
the Registration Statement and also on the Closing Date or Additional
Closing Date, as the case may be, KPMG shall have furnished to you letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement and
the Prospectus;
(h) the Representatives shall have received on and as of the Closing
Date or Additional Closing Date, as the case may be, an opinion of Xxxxxx
Xxxxxx & Xxxxxxx, counsel to the Underwriters, with respect to the due
authorization and valid issuance of the Shares, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(i) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on
the Nasdaq National Market, subject to official notice of issuance;
(j) on or prior to the Closing Date or Additional Closing Date, as the
case may be, the Company and the Selling Stockholders shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request; and
(k) the lock-up agreements, each substantially in the form of Exhibit
A hereto, between you and each of the Company's executive officers and
directors, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date or Additional Closing Date, as the
case may be.
27
7. The Company agrees to indemnify and hold harmless each Underwriter and
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Shares and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any audio
or visual materials prepared by the Company or based upon written information
furnished by or on behalf of the Company including, without limitation, slides,
videos, films, tape recordings used in connection with the marketing of the
Shares, including, without limitation, statements communicated to securities
analysts employed by the Underwriters, except in each case insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use
therein.
The Selling Stockholders agree, severally and not jointly, to indemnify and
hold harmless each Underwriter and each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Shares and each person, if
any, who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case to the extent and only to the extent that such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of such Selling
Stockholder expressly for use therein; provided, however, that the obligations
of any Selling Stockholder under the foregoing indemnity shall not exceed the
net proceeds received by such Selling Stockholder from the sale of the Shares to
be sold by such Selling Stockholder hereunder (which net proceeds shall not
include the Underwriters' discounts).
28
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the foregoing indemnity from the
Selling Stockholders to each Underwriter, but only with reference to information
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to the preceding paragraphs
of this Section 7, such person (the "Indemnified Person") shall promptly notify
the person or persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Persons, upon request
of the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
and not the Indemnifying Persons unless (i) the Indemnifying Persons and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Persons has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both an
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that no Indemnifying Person
shall, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters, each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Shares and such control
persons of Underwriters shall be designated in writing by X.X. Xxxxxx Securities
Inc. and any such separate firm for the Company, its directors, its officers who
sign the Registration Statement and such control persons of the Company shall be
designated in writing by the Company, any such separate firm for the Selling
Stockholders shall be designated in writing by each Selling Stockholder. No
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, each Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of
29
counsel as contemplated by the second and third sentences of this paragraph,
such Indemnifying Person agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first three paragraphs of this
Section 7 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Stockholders and the total underwriting discounts and the commissions received
by the Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Selling Stockholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders 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 Selling Stockholders or the
Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of
30
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, (i) in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, (ii) in no event shall
the amount required to be contributed by any Selling Stockholder exceed the
amount by which the net proceeds received by such Selling Stockholder through
the sale of the Shares to be sold by such Selling Stockholder (which net
proceeds shall not include the Underwriters' discounts) to the Underwriters
exceeds the amount of any damages that such Selling Stockholder has otherwise
been required to pay by reason of its untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section ll(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint. The Selling
Stockholders' obligations to contribute pursuant to this Section 7 are several
and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company, the Selling Stockholders and
the Underwriters set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or any Selling Stockholder and (iii)
acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company and the Selling Stockholders, if after the execution and delivery
of this Agreement and prior to the Closing Date (or, in the case of the Option
Shares, to the Company prior to the Additional Closing Date) (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange or the American Stock Exchange, the
31
National Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Representatives,
is material and adverse and which, in the judgment of the Representatives, makes
it impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I hereto bears to the
aggregate number of Underwritten Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 hereof be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representatives, the Company
and the Selling Stockholders for the purchase of such Shares are not made within
36 hours after such default, this Agreement (or the obligations of the several
Underwriters to purchase the Option Shares, as the case may be) shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case either you, the Company or the
Selling Stockholders shall have the right to postpone the Closing Date (or, in
the case of the Option Shares, either you or the Company shall have the right to
postpone the Additional Closing Date), but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or
32
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any of the Company or any of
the Selling Stockholders shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Selling Stockholders, the Underwriters and each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Shares,
any controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. 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 given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax: 212-648-5705), Attention: Syndicate Department, copy to
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax:
212-269-5420), Attention: Xxxxxx X. Xxxxxxxxx, Esq. Notices to the Company shall
be given to it at its office, 0 Xxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000,
(telefax: [ ]), Attention: [ ]. Notices to the Selling Stockholders shall be
given to to them, c/o Xxxx Xxxxxxx Mutual Life Insurance Company, 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (telefax: 617-572-9268), Attention:
Xxxxxxxxx Xxxxxx, Esq., Assistant Counsel, copy to Xxxxxx, Xxxx & Xxxxxxx, 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (telefax: 617-248-4000), Attention:
Xxxxx X. Xxxx, Esq. Copies of notices to the Company should be given to
Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telefax:
212-969-2900), Attention: Xxxxxx X. Xxxxxxx, Esq.
33
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
34
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
CELGENE CORPORATION
By:
------------------------------------
Name:
Title:
XXXXXXX MEZZANINE
PARTNERS L.P.
By: Xxxxxxx Mezzanine Investments
LLC, its general partner
By: Xxxx Xxxxxxx Life Insurance
Company, as investment manager
By:
------------------------------------
Name:
Title:
XXXX XXXXXXX LIFE
INSURANCE COMPANY
By:
------------------------------------
Name:
Title:
35
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By:
------------------------------------
Name:
Title:
SIGNATURE 1A (CAYMAN), LTD.
By: Xxxx Xxxxxxx Life Insurance
Company, as portfolio advisor
By:
------------------------------------
Name:
Title:
36
Accepted: February [ ], 2000
X.X. XXXXXX SECURITIES INC.
PRUDENTIAL SECURITIES INCORPORATED
U.S. BANCORP XXXXX XXXXXXX INC.
Acting severally on behalf of themselves
and the several Underwriters listed in
Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
SCHEDULE I
Number of
Underwritten Shares
Underwriter To Be Purchased
----------- -------------------
X.X. Xxxxxx Securities Inc..................................
Prudential Securities Incorporated..........................
U.S. Bancorp Xxxxx Xxxxxxx Inc..............................
---------
Total.................................................. 2,484,000
=========
SCHEDULE II
Number of
Selling Stockholder Underwritten Shares
------------------- -------------------
Xxxxxxx Mezzanine Partners L.P.............................. 258,000
Xxxx Xxxxxxx Life Insurance Company......................... 233,920
Xxxx Xxxxxxx Variable Life Insurance Company................ 6,880
Signature 1A (Cayman), Ltd.................................. 17,200
-------
Total.............................................. 516,000
=======
