EXHIBIT 1.02
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CONFIDENTIAL
CENTAUR PHARMACEUTICALS, INC.
Common Stock
(par value $0.001 per share)
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International Underwriting Agreement
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September 8, 1998
Bank X. Xxxxxxxx & Co AG
(the "GLOBAL COORDINATOR")
c/o Bank X. Xxxxxxxx & Co AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
The Managers named in Schedule 1 hereto
(the "MANAGERS")
Dear Sirs:
This agreement relates to the proposed offer and sale of up to 2,012,500 shares
of common stock, par value $0.001 per share (the "COMMON STOCK") of Centaur
Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY") pursuant to the
issuance and sale by the Company of shares of Common Stock as follows (the
"OFFERING"):
(a) On July 10, 1998, August 7, 1998 and August 24, 1998 at meetings of the
Board of Directors of the Company duly called and held at which quorum were
present throughout, the Board of Directors duly adopted resolutions
authorizing the issuance and sale of an aggregate of 2,500,000 new shares
of Common Stock (the "NEW SHARES") by the Company.
(b) The Company proposes, subject to the terms and conditions stated herein, to
issue and sell 1,750,000 of such New Shares (the "INTERNATIONAL NEW
SHARES") to the Managers as set out herein.
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(c) In addition, the Company proposes, subject to the terms and conditions
stated herein, to sell to the International Managers, at the election of
the Global Coordinator, up to 262,500 additional shares of Common Stock
(the "INTERNATIONAL GREENSHOE SHARES"; and together with the International
New Shares, the "INTERNATIONAL OFFERED SHARES"). The Company further
proposes, subject to the terms and conditions stated in the U.S.
Underwriting Agreement (as hereinafter defined), to sell to the U.S.
Managers, at the election of the Global Coordinator, up to 112,500
additional shares of Common Stock (the "U.S. GREENSHOE SHARES"; and
together with the International Greenshoe Shares, the "GREENSHOE SHARES").
The New Shares and the Greenshoe Shares are collectively referred to herein
as the "OFFERED SHARES".
1. Sale, Underwriting, Purchase and Listing
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Subject to the terms and conditions herein set forth:
(a) The Company agrees to sell to each Manager named in Schedule 1 hereto
the International New Shares with effect from the Closing Date (as
defined in Section 4 hereof) at a price to be agreed between the
Company and the Global Coordinator pursuant to a separate pricing
agreement (the "OFFER PRICE"); and each such Manager agrees, severally
and not jointly, to purchase from the Company such number of
International New Shares as is set forth for such Manager on Schedule
1, at the Offer Price. The Company shall not be obligated to sell any
New Shares unless all of the New Shares are purchased by the Managers
and the U.S. Managers pursuant to this Agreement and the U.S.
Underwriting Agreement. The Managers shall not be obligated to purchase
any International New Shares unless the U.S. New Shares are purchased
by the U.S. Managers pursuant to the U.S. Underwriting Agreement.
(b) The Company mandated the Global Coordinator to make an application on
its behalf for the shares of Common Stock of the Company issued and
outstanding from time to time to be listed for trading with official
quotation (Hauptsegment) on the Swiss Exchange; and the Global
Coordinator agreed to make such application and to use its best efforts
to obtain such listing as promptly as possible. The Company agrees to
provide the Global Coordinator in due time with all documents and
information requested by the Global Coordinator to enable the Global
Coordinator to make such an application with the Swiss Exchange.
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(c) Greenshoe Shares
(i) To the extent that in connection with the Offering any
transactions are carried out for the purpose of covering over-
allotments in the sale of the International New Shares or in
connection with bona fide stabilization activities in
accordance with local laws and regulations, and the Global
Coordinator determines on behalf of the Managers that
additional shares of Common Stock are needed in connection with
such transaction, the Company shall sell to the Global
Coordinator on behalf of the Managers such number of
International Greenshoe Shares as shall be requested by the
Global Coordinator at the Offer Price.
(ii) The Global Coordinator shall notify the Company no later than
10.00 a.m. (Zurich time) on October 8, 1998 (the 30/th/ day
after the date of this Agreement) of the number of
International Greenshoe Shares which will be required and the
time and date for payment for and delivery of such
International Greenshoe Shares (which time and date shall not
be less than four and not more than eight business days after
the exercise of such option, nor in any event prior to the
Closing Date).
(iii) Each Manager agrees, severally and not jointly, that such
Manager will purchase its pro rata share (based on its
aggregate obligation to purchase International New Shares) of
any International Greenshoe Shares at the Offer Price, subject
to such adjustments as the Global Coordinator in its absolute
discretion shall determine.
(d) Greenshoe Deposit
In order to facilitate the sale of the International Offered Shares by
the Managers, the Company hereby agrees to deliver to the Global
Coordinator, as escrow agent for the Company, on the Closing Date a
good faith deposit in Swiss Francs in the amount equal to __________
CHF [30% of the aggregate Offer Price of the International Greenshoe
Shares] (the "GREENSHOE DEPOSIT"), which shall be held in escrow in a
segregated account by the Global Coordinator on the following terms:
(i) In the event that the Global Coordinator shall request the
purchase of International Greenshoe Shares pursuant and in
accordance with paragraph (c) of this Section 1, and the
Company shall fail to deliver such International Greenshoe
Shares on the Greenshoe Closing Date in accordance with Section
4(e) of this Agreement, the Global Coordinator, on behalf of
the Managers, shall have the right to retain such portion of
the Greenshoe Deposit, including
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any income from investments as set forth in clause (iii) below,
equal to the extent of any losses incurred by the Global
Coordinator as a result of such failed or delayed delivery of
the International Greenshoe Shares. In no event shall the
Managers' remedies in the circumstances described in this
Section 1(d)(i) be limited to this Section 1(d)(i).
(ii) (i) As soon as practicable after the Greenshoe Closing Date, if
the Global Coordinator shall have requested the purchase of
International Greenshoe Shares pursuant to and in accordance
with paragraph (d) of this Section 1 and the Company have
delivered the International Greenshoe Shares on the Greenshoe
Closing Date in accordance with Section 4(e) of this Agreement;
(ii) on October 8, 1998 or as soon as practicable thereafter if
the Global Coordinator shall not have requested the purchase of
International Greenshoe Shares pursuant to and in accordance
with paragraph (d) of this Section 1, and (iii) otherwise on
October 18, 1998 (the 40th day after the date of this
Agreement), any portion of the Greenshoe Deposit not entitled
to be retained by the Global Coordinator pursuant to clause (i)
above, shall be paid in full to the Company, including any
income from investments as set forth in clause (iii) below. If
the the extent of the Global Coordinator's losses incurred by
any failed or delayed delivery cannot be reasonably determined
as described above on or prior to such date, the Global
Coordinator may retain the Greenshoe Deposit until such losses
can reasonably be determined.
(iii) The Global Coordinator shall invest the Greenshoe Deposit and
reinvest any income from such investments, unless written
notice to the contrary is received from the Company, in a U.S.
dollar denominated interest bearing money market deposit. Any
income from or interest on such investments shall be the
property of and shall be paid to the party to whom the
Greenshoe Deposit is paid pursuant to clauses (i) and (ii)
above.
(e) In consideration of the agreement by the Managers to purchase the
International Offered Shares as set forth above, the Company shall pay
to the Managers aggregate management, selling and underwriting
commissions of 5.5 per cent of the Offer Price for each International
Offered Share purchased from it (the "MANAGERS' COMMISSION"). The
Global Coordinator shall be entitled to deduct the Managers' Commission
from the Offer Price to be paid for the International Offered Shares
pursuant to Section 4 of this Agreement.
(f) The Company understands that the Managers propose to make an offering
of the International Offered Shares in Switzerland and elsewhere
outside the United States
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as soon as the Global Coordinator deems advisable after this Agreement
has been executed and delivered.
(g) It is also understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. UNDERWRITING AGREEMENT")
providing for the sale by the Company of an aggregate of up to 862,500
shares of Common Stock (the "U.S. OFFERED SHARES"), including the
overallotment option thereunder, through arrangements with certain
underwriters in the United States (the "U.S. MANAGERS") for whom Vector
Securities International, Inc. and Vontobel Securities, Ltd. are acting
as lead managers and Bank X. Xxxxxxxx & Co AG is acting as Global
Coordinator. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
U.S. Underwriting Agreement are hereby expressly made conditional on
one another. The Managers hereunder and the U.S. Managers are
simultaneously entering into an Agreement between International and
U.S. Underwriting Syndicates (the "AGREEMENT BETWEEN SYNDICATES") which
provides, among other things, for the transfer of shares of Common
Stock between the two syndicates.
(h) In connection with the offer and sale of the shares of Common Stock to
be sold under this Agreement, the Company has prepared a preliminary
international prospectuses dated August 6, 1998 and August 26, 1998
(each an "INITIAL INTERNATIONAL PROSPECTUS"), and will prepare a final
international prospectus, expected to be dated September 9, 1998 (the
"INTERNATIONAL PROSPECTUS"), each in English, for use in connection
with the offer and sale of such shares. The Company hereby confirms
that it has authorized the use by the Managers of each International
Preliminary Prospectus and the International Prospectus, as the same
may be amended or supplemented by the Company from time to time, in
connection with the offer and sale of such shares, for the period
during which a prospectus is required by applicable law to be delivered
in connection with sales of such shares.
(i) The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-57165)
under the Securities Act of 1933, as amended (the "1933 ACT") covering
the registration of the U.S. Offered Shares and any shares of Common
Stock sold hereunder that are sold or resold in the United States in
transactions not exempt from registration under Section 4(1) or 4(3) of
the 1933 Act, including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement,
the Company will either (i) prepare and file a prospectus in accordance
with the provisions of Rule 430A ("RULE 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 ACT
REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(B)") of the 1933
Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("RULE 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "TERM
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SHEET") in accordance with the provisions of Rule 434 and Rule 424(b).
The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to
paragraph (b) of Rule 430A is referred to as "RULE 430A INFORMATION" or
(b) pursuant to paragraph (d) of Rule 434 is referred to as "RULE 434
INFORMATION." Each prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the
Rule 430A Information or the Rule 434 Information, that was used after
such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "U.S. PRELIMINARY PROSPECTUS." Such
registration statement, including the exhibits thereto and schedules
thereto at the time it became effective and including the Rule 430A
Information or the Rule 434 Information, as applicable, is herein
called the "REGISTRATION STATEMENT." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred
to as the "RULE 462(B) REGISTRATION STATEMENT," and after such filing
the term "REGISTRATION STATEMENT" shall include the Rule 462(b)
Registration Statement. The final prospectus in the form first
furnished to the U.S. Managers for use in connection with the offering
of the U.S. Offered Shares is herein called the "U.S. PROSPECTUS." If
Rule 434 is relied on, the term "U.S. Prospectus" shall refer to the
U.S. Preliminary Prospectus dated August 26, 1998 together with the
Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any U.S.
Preliminary Prospectus, the U.S. Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX"). The Company
hereby confirms that it has authorized the use by the U.S. Managers of
each U.S. Preliminary Prospectus and the U.S. Prospectus, as the same
may be amended or supplemented by the Company from time to time, in
connection with the offer and sale of the U.S. Offered Shares and by
underwriters and dealers for purposes of resales of shares of Common
Stock in the United States that are not exempt from Section 4(1) or
4(3) of the Securities Act. The U.S. Prospectus, the Initial
International Prospectuses and the International Prospectus are herein
collectively called the "PROSPECTUSES" and individually each, as
"PROSPECTUS."
2. Representations and Warranties
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(a) The Company represents and warrants, as of the date hereof, to each
Manager that:
(i) Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
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suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements
thereto complied in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations 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 not misleading; any U.S. Prospectus, any U.S.
Preliminary Prospectus and any supplement thereto or prospectus
wrapper prepared in connection therewith, at their respective times
of issuance and (except with respect to any U.S. Preliminary
Prospectus) at the Closing Date (and, if any Greenshoe Shares are
purchased, at the Greenshoe Closing Date, as such U.S. Prospectus
may be amended or supplemented to such date), complied and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations; any International Prospectus, any
Initial International Prospectus and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their
respective times of issuance and (except with respect to the any
Initial International Prospectus) at the Closing Date (and, if any
Greenshoe Shares are purchased, at the Greenshoe Closing Date, as
such International Prospectus may be amended or supplemented to
such date), complied and will comply in all material respects with
the requirements of the applicable laws or regulations of
Switzerland. Neither any Prospectus nor any amendments or
supplements thereto (including any prospectus wrapper), at the time
such Prospectus or any such amendment or supplement was issued and
at the Closing Date (and, if any Greenshoe Shares are purchased, at
the Greenshoe Closing Date, as such Prospectus may be amended or
supplemented to such date), included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. No U.S. Preliminary Prospectus, at its time of
issuance, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. If Rule 434 is used, the Company
will comply with the requirements of Rule 434 and the U.S.
Prospectus shall not be
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"materially different", as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it
became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or any Prospectus made in reliance upon and
in conformity with information furnished to the Company in writing
by any Manager through the Global Coordinator expressly for use in
the Registration Statement or any such Prospectus.
Each U.S. Preliminary Prospectus and the 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
1933 Act, complied when so filed in all material respects with the
1933 Act Regulations and each U.S. Preliminary Prospectus and the
U.S. Prospectus delivered to the Managers and the U.S. Managers for
use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-
T.
(ii) The authorized, issued and outstanding capital stock of the Company
is as set forth in each Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement and the U.S.
Underwriting Agreement, pursuant to employee benefit plans referred
to in each Prospectus, pursuant to the conversion of the Company's
preferred stock on the Closing Date as described in each Prospectus
or pursuant to the exercise of options or warrants referred to in
each Prospectus). The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any security holder of
the Company;
(iii) Upon delivery of the Offered Shares to be delivered to the Managers
pursuant to Section 4 of this Agreement and to the U.S. Managers
pursuant to the U.S. Underwriting Agreement on the Closing Date or
Greenshoe Closing Date, respectively, and payment therefore as
provided herein and therein, it will have delivered good and valid
title thereto to the Managers and the U.S. Managers, free and clear
of all liens, pledges, encumbrances, equities and claims; and there
exists no agreement or arrangement with respect to the voting, sale
or disposition of the Offered Shares sold by it;
(iv) The Offered Shares to be purchased by the Managers and the U.S.
Managers from the Company have been duly authorized for issuance
and sale to the Managers pursuant to this Agreement and the U.S.
Underwriting Agreement
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and, when issued and delivered by the Company pursuant to this
Agreement and the U.S. Underwriting Agreement against payment of
the consideration set forth herein and therein, will be validly
issued and fully paid and non-assessable; the Common Stock conforms
to all statements relating thereto contained in the Prospectuses
and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Offered Shares will
be subject to personal liability by reason of being such a holder;
and the issuance of the Offered Shares is not subject to the
preemptive or other similar rights of any security holder of the
Company;
(v) Except as described in each of the Prospectuses, (i) there are no
outstanding securities of the Company convertible into or
exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, the Common
Stock or any other class of shares of the Company; (ii) all of the
issued and outstanding capital stock of each subsidiary of the
Company (each a "SUBSIDIARY") has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the
Company, directly or indirectly, free and clear of any liens,
pledges, encumbrances, equities or claims; and (iii) none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security
holder of such Subsidiary. The Subsidiaries of the Company,
considered in the aggregate as a single Subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. To the extent any of the representations of the
Company in Section 3 of this Agreement relate to any Subsidiary of
the Company, such representation shall not be deemed breach by any
facts or circumstances that would not be reasonable likely to,
singly or in the aggregate, have a Material Adverse Effect.
(vi) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations;
(vii) Except as described in each of the Prospectuses, there has been no
action, suit, legal or arbitration proceeding by or against the
Company or any of its Subsidiaries within the last two years and
there is no such proceeding pending that has had, and the Company
does not believe that there are any threatened legal or arbitration
proceedings by or against it or any of its Subsidiaries which would
be reasonably likely, singly or in the aggregate, to have a
material adverse effect on the business or financial condition of
the Company and its Subsidiaries taken as a whole a ("MATERIAL
ADVERSE EFFECT");
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(viii) The Company and its Subsidiaries own or have had licensed to them
or otherwise have the benefit or use under the authority of the
owners thereof of all patents, patent rights, inventions,
trademarks, service marks, trade names and copyrights (in each
case, registered or not) which are necessary for the conduct of the
business of the Company and its Subsidiaries as currently conducted
as described in each Prospectus; there are no unresolved claims
that the Company or any of its Subsidiaries has infringed the
patents, patent rights, inventions, trademark rights, service
marks, trade names or copyrights of others and, to the best
knowledge of the Company, no persons are infringing the patents,
patent rights, inventions, trademark rights, service marks, trade
names or copyrights of the Company or any of its Subsidiaries,
which would be reasonably likely to, singly or in the aggregate,
have a Material Adverse Effect;
(ix) Each of the Company and each of its Subsidiaries has all material
concessions, licenses, franchises, permits, authorizations,
approvals and orders of and from all governmental regulatory
officials and bodies that are necessary to own or lease its
properties and to conduct its business as currently conducted;
(x) No material labour dispute with the employees of the Company or any
of its Subsidiaries exists or is threatened or imminent;
(xi) The Company and each of its Subsidiaries has obtained any permits,
consents and authorizations required to be obtained by it under
laws or regulations relating to the protection of the environment
or concerning the handling, storage, disposal or discharge of toxic
materials (collectively "ENVIRONMENTAL LAWS") in order to conduct
their business as described in the Prospectuses, and any such
permits, consents and authorizations remain in full force and
effect. The Company and each of its Subsidiaries is in compliance
with the Environmental Laws in all material respects, and there is
no pending or, to the Company's knowledge, threatened, action or
proceeding against the Company or any or its Subsidiaries alleging
violations of the Environmental Laws;
(xii) Neither the Company nor any of its Subsidiaries is currently
prohibited from paying any dividends or from making any other
distribution on the Company's or such Subsidiary's capital stock,
respectively, out of positive retained earnings or from repaying to
the Company or its stockholders, respectively, any loans or
advances to such Subsidiary from the Company or to the Company from
such stockholders, as the case may be;
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(xiii) Neither the Company nor any of its Subsidiaries is (A) in violation
of its charter or by-laws or (B) except as described in each of the
Prospectuses, in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any material contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which
it or any of them may be bound, or to which any of the property or
assets of the Company or any Subsidiary is subject;
(xiv) Since the earlier of (i) the respective dates as of which the
information is given in the Registration Statement, each Prospectus
or (ii) June 30, 1998, (A) neither the Company nor any of its
Subsidiaries has sustained 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, (B) there has not been any
change in the capital stock of the Company, or any increase in
long-term debt of the Company and its Subsidiaries taken as a whole
(except (i) as described in each Prospectus, (ii) pursuant to this
Agreement and the U.S. Underwriting Agreement, (iii) pursuant to
grants under employee benefit plans referred to in each Prospectus,
(iv) pursuant to the conversion of the Company's preferred stock on
the Closing Date as described in each Prospectus or (v) pursuant to
the exercise of options or warrants referred to in each
Prospectus), (C) there has not been any significant decrease, when
compared to the comparable period in the prior year, in net loss or
net loss per share of the Company and its Subsidiaries taken as a
whole, and (D) there has not been any material adverse change, or
any development reasonably likely to result in a material adverse
change, in or affecting the condition (financial or otherwise),
business, stockholders' equity or results of operations of the
Company and its Subsidiaries taken as a whole;
(xv) The financial statements included in the Registration Statement and
each Prospectus, together with the related schedules and notes,
present fairly in all material respects the financial position of
the Company at the dates indicated and the statements of
operations, stockholders' equity and cash flows of the Company for
the periods specified; said financial statements have been prepared
in conformity with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial data included
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in each Prospectus have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement;
(xvi) Each of the Company and its Subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with full corporate
power and authority to enter into this Agreement and the U.S.
Underwriting Agreement and consummate the transactions contemplated
herein and therein (in the case of the Company) and to own its
properties and conduct its business as currently conducted, 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 other than its jurisdiction of incorporation in which
it owns or leases properties or conducts any business so as to
require such qualification, except where the failure to be so
qualified or to be in good standing would not, individually or in
the aggregate, be reasonably likely to have a Material Adverse
Effect;
(xvii) Each of this Agreement and the U.S. Underwriting Agreement has been
duly authorized, executed and delivered by the Company and (other
than the provisions of Section 9 hereof, as to which the Company
makes no representation) constitutes the legal, valid, binding and
enforceable obligation of the Company, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles
of equity;
(xviii) The execution, delivery and performance of this Agreement and the
U.S. Underwriting Agreement by the Company and the consummation of
the transactions contemplated herein and (including the issuance
and sale of the Offered Shares and the use of the proceeds from the
sale of the Offered Shares as described in each Prospectus under
the heading "Use of Proceeds") and compliance by the Company with
its obligations hereunder and under the U.S. Underwriting Agreement
have been duly authorized by all necessary corporate action and do
not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to,
any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets
of the Company or any Subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances
that would not, singly or in the aggregate, be reasonably likely to
result in a
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Material Adverse Effect or impair the ability of the Company to
consummate, or otherwise materially adversely affect, the
transactions contemplated herein and in the U.S. Underwriting
Agreement), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
Subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Subsidiary or any of their assets,
properties or operations (except, with result to foreign
jurisdictions, for actions taken with the actual knowledge or prior
consent of the Global Coordinator). As used herein, a "Repayment
Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Subsidiary;
(xix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder or under
the U.S. Underwriting Agreement, in connection with the offering,
issuance or sale of the Offered Shares hereunder or under the U.S.
Underwriting Agreement or the consummation of the transactions
contemplated by this Agreement or the U.S. Underwriting Agreement,
except (i) such as have been already obtained and are in full force
and effect or as may be required under the 1933 Act or the 1933 Act
Regulations or United States state securities laws, (ii) such as
have been obtained under the laws and regulations of jurisdictions
outside the United States in which the Offered Shares are offered,
(iii) the approval for listing of the Common Stock by the Swiss
Exchange, or (iv) as may be required by the U.S. Securities and
Exchange Commission for the performance of the Company's
obligations under Section 9 hereof; provided that no representation
is made as to the compliance of the Offering with the securities
laws of jurisdictions other than the United States and Switzerland.
(xx) There are no contracts or documents which are required to be
described in the Registration Statement or each Prospectus or to be
filed as exhibits to the Registration Statement which have not been
so described or filed as required;
(xxi) The Company is not, and upon the issuance and sale of the Offered
Shares as contemplated herein and in the U.S. Underwriting
Agreement and the application of the net proceeds therefrom as
described in each Prospectus will not be, an "investment company"
or an entity "controlled" by an "investment
14
company" as such terms are defined in the Investment Company Act of
1940, as amended;
(xxii) Except as described in each Prospectus, there are no persons with
registration rights or other similar rights to have any securities
of the Company registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act;
(xxiii) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder,
or is exempt therefrom;
(xxiv) Except as disclosed in each Prospectus, no issue, stamp or other
transactional duty or tax is payable by or on behalf of any
purchaser of Offered Shares from the Company or the Managers or the
U.S. Managers in connection with the sale and delivery by it of
Offered Shares to or for the respective accounts of such purchaser
or the Managers in the manner contemplated by this Agreement or the
U.S. Managers in the manner contemplated by the U.S. Underwriting
Agreement; and
(xxv) The Company and its Subsidiaries have good and marketable title to
all real property owned by the Company and its Subsidiaries and
good title to all other material properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in each Prospectus or (b) do not, singly
or in the aggregate, materially affect the value of such property
and do not interfere with the use made and proposed to be made of
such property by the Company or any of its Subsidiaries; and all of
the leases and subleases material to the business of the Company
and its Subsidiaries, considered as one enterprise, and under which
the Company or any of its Subsidiaries holds properties described
in each Prospectus, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of
the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
15
3. Offering by the Managers
------------------------
It is understood that the Managers propose to offer the International
Offered Shares for sale to the public as set forth in the Initial
International Prospectus dated August 26, 1998 and the International
Prospectus and each Manager hereby represents and warrants, severally and
not jointly, to, and agrees with the Company that:
(a) (i) The International Offered Shares may not be initially offered or
sold by it within the United States or to any dealer who does not
so agree. The International Offered Shares have been registered
in the United States solely for purposes of the subsequent sale
or resale of the International Offered Shares in the United
States in transactions not exempt from registration under Section
4(1) or 4(3) of the Securities Act. It will not distribute any
prospectus (as defined in the 0000 Xxx) relating to the Common
Stock or the Offering in the United States or to any dealer who
does not so agree (except as contemplated by clause (ii) below).
"United States" means the United States of America (including the
States and the District of Columbia), its territories,
possessions and other areas subject to its jurisdiction.
(ii) It will comply with prospectus delivery requirements in the
United States with respect to offers and sales of the Common
Stock, including, to the extent applicable, delivery of a copy of
the U.S. Prospectus to any purchaser or offeree within the United
States with respect to any transaction that is part of this
distribution or that occurs within 365 days after the initial
listing of the Common Stock on the Swiss Exchange.
(b) (i) It has not offered or sold and will not offer or sell any
International Offered Shares in the United Kingdom except in
circumstances which do not constitute an offer to the public
within the meaning of the Public Offer of Securities Regulations
1995 (the "REGULATIONS");
(ii) It has complied and will comply with all applicable provisions of
the Financial Services Xxx 0000 and the Regulations with respect
to anything done by it in relation to the International Offered
Shares in, from or otherwise involving the United Kingdom; and
(iii) It has only issued or passed on, and will only issue or pass on,
in the United Kingdom each Initial International Prospectus, the
International Prospectus or any other document received by it in
connection with the offering of the International Offered Shares
to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996 (as amended) or is a person to whom the
Initial
16
International Prospectus, the International Prospectus or the
relevant document may otherwise lawfully be issued or passed on;
(c) Save in relation to offers and sales in Switzerland and Germany, no
action has been or will be taken in any jurisdiction by the Managers
that would constitute a public offering of the International Offered
Shares or permit possession or distribution of the Initial
International Prospectus, the International Prospectus or any other
offering or publicity material relating to the International Offered
Shares in any country or jurisdiction where action for that purpose is
required. Each Manager will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers the International Offered Shares or has in its possession or
distributes an Initial International Prospectus, the International
Prospectus or any such other material. Each Manager will obtain any
consent, approval or permission required by it for, the acquisition,
offer, sale or delivery by it of the International Offered Shares under
the laws and regulations in force in any jurisdiction to which it is
subject or in or from which it makes any acquisition, offer, sale, or
delivery. No Manager is authorized to make any representation or use
any information in connection with the issue and sale of the
International Offered Shares other than as contained in the Initial
International Prospectus, the International Prospectus or any amendment
or supplement thereto;
(d) It has complied and will comply with all applicable Swiss laws
(including, without limitation, the Swiss Code of Obligations
(Schweizerisches Obligationenrecht) and the Swiss Stock Exchange Act
(Schweizerisches Borsen und Effektenhandelsgesetz) as in effect from
time to time), rules, regulations and governmental and Stock Exchange
orders, if any;
(e) The International Offered Shares have not been and will not be
qualified for sale in Canada pursuant to a prospectus and will not be
offered or sold directly or indirectly in any province or territory of
Canada; and
(f) It has not offered and will not offer or sell, or procure any offers or
sales of, any International Offered Shares in Japan without the prior
written consent of the Global Coordinator;
provided that, the International Offered Shares may be sold to the U.S.
Managers pursuant to the terms of an Intersyndicate Agreement between the
Managers and the U.S. Managers, and any International Offered Shares so
sold to the U.S. Managers shall not be deemed "International Offered
Shares" for purposes of the foregoing representations and warranties and
agreements.
17
4. Delivery and Payment
--------------------
(a) At the latest on September __, 1998, the Global Coordinator shall have
received the International New Shares to be purchased by the Managers
through the book-entry facilities of Schweizerische Effekten Giro AG
("SEGA") from or on behalf of the Company for the accounts of such
Managers.
(b) At the latest on September __, 1998, the Managers shall give
instructions to the Global Coordinator as to the number of
International New Shares to be credited against payment of the Offer
Price on the Closing Date to the accounts of the Managers through the
book-entry facilities of SEGA together with the details of such
accounts.
(c) On or before the Business Day immediately preceding the Closing Date,
the Global Coordinator and the Managers, respectively, shall give
instructions to SEGA, as to the number of International New Shares to
be settled on the Closing Date through the facilities of SEGA, together
with the details of such accounts. As used in this Agreement, "BUSINESS
DAY" means each day on which the Swiss Exchange ("SWISS EXCHANGE") is
open for dealings.
(d) By 10 a.m. (local time in Zurich) on September 14, 1998 or at such
other time and date as the Company and the Global Coordinator on behalf
of the Managers may agree (the "CLOSING DATE"), the following payments
shall be made with value as of the Closing Date:
(i) Each Manager shall pay for the International New Shares to be
purchased by it in Swiss Francs in the amounts and to the account
or accounts to be notified to it by the Global Coordinator.
(ii) The Global Coordinator on behalf of the Managers shall pay to the
Company in Swiss Francs the Offer Price less the Managers'
Commission for the International New Shares and such amounts as
are separately agreed in writing with the Company.
All payments referred to in this Section 4 shall be credited with
value as of the Closing Date to the relevant parties at the designated
accounts.
(e) (i) By 10 a.m. (local time in Zurich), on or prior to the date three
business days prior to the time and date designated by the Global
Coordinator for payment for and delivery of the International Greenshoe
Shares pursuant to Section 1(d)(ii) hereof or at such other time and
date as the Company and the Global Coordinator on behalf of the
Managers may agree (the "GREENSHOE CLOSING
18
DATE"), the Global Coordinator on behalf of the Managers shall give
instructions to the Company as to the number of International Greenshoe
Shares to be credited on the Greenshoe Closing Date to the account of
the Global Coordinator at SEGA together with the details of such
accounts.
(ii) On the Greenshoe Closing Date, the Global Coordinator on behalf of
the Managers shall pay to the Company in Swiss Francs the Offer
Price for the International Greenshoe Shares less the Managers'
Commission in respect thereof, such payments to be credited for
value as of the Greenshoe Closing Date or at such other time as
the Company and the Global Coordinator may agree.
(f) The documents to be delivered on the Closing Date and the Greenshoe
Closing Date, respectively, by or on behalf of the parties hereto
pursuant to Section 7 hereof will be delivered at the offices of the
Global Coordinator in Zurich or at such other location as the parties
hereto may agree (the "CLOSING LOCATION") on the Closing Date or the
Greenshoe Closing Date, as the case may be.
5. Agreements
----------
(a) The Company agrees with each Manager as follows:
(i) The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and
will notify the Global Coordinator immediately, and confirm
the notice in writing, (i) when any post-effective amendment
to the Registration Statement shall become effective, or any
supplement to the U.S. Prospectus or any amended U.S.
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or
any amendment or supplement to the U.S. Prospectus or for
additional information, and (iv) 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 of the
suspension of the qualification of the Offered Shares for
offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not,
it will promptly file such prospectus. The Company will make
every reasonable effort to prevent the issuance of any
19
stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(ii) The Company will give the Global Coordinator notice of its
intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule
462(b)), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the
Registration Statement at the time it became effective or to
any Prospectus, will furnish the Global Coordinator with
copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global
Coordinator or counsel for the Managers and the U.S. Managers
shall object in good faith.
(iii) The Company has furnished or will deliver to the Managers and
counsel for the Managers and the U.S. Managers, without
charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith) and signed copies of all consents
and certificates of experts, and will also deliver to the
Managers, without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the
Managers. The copies of the Registration Statement and each
amendment thereto furnished to the Managers will be identical
to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iv) The Company will furnish to each Manager, without charge,
during the period when the U.S. Prospectus is required to be
delivered under the 1933 Act, such number of copies of the
U.S. Prospectus (as amended or supplemented) as such Manager
may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the Managers
will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T. The Company has
delivered to each Manager, without charge, as many copies of
each Initial International Prospectus as such Manager
reasonably requested and will furnish to each Manager,
without charge, such number of copies of the International
Prospectus (as amended or supplemented) as such Manager may
reasonably request.
(v) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the
distribution of the Offered Shares as contemplated in this
Agreement and the U.S. Underwriting Agreement and in the
Prospectuses. If at any time when a prospectus is required by
20
applicable law to be delivered by the Managers in connection
with sales of the Offered Shares, any event shall occur or
condition shall exist as a result of which it is necessary,
in the reasonable opinion of counsel for the Managers and the
U.S. Managers or for the Company, to amend the Registration
Statement or amend or supplement any Prospectus in order that
such Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the
light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of
applicable law, the Company will (i) with respect to the U.S.
Prospectus, promptly prepare and file with the Commission,
subject to Section 5(a)(ii), such amendment or supplement as
may be necessary to correct such statement or omission or to
make the Registration Statement or the U.S. Prospectus comply
with such requirements, (ii) with respect to any Initial
International Prospectus or the International Prospectus,
supplement such prospectus to correct such statement or
omission and (iii) the Company will furnish to the Managers
such number of copies of such amendment or supplement as the
Managers may reasonably request.
(vi) The Company will use its reasonable efforts, in cooperation
with the Managers, to qualify the Offered Shares for offering
and sale under the applicable securities laws of such United
States states and such other jurisdictions (domestic or
foreign) as the Global Coordinator may reasonably designate
and to maintain such qualifications in effect for a period of
one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration
Statement (or such lesser period as may be required under
applicable law); provided, however, that the Company shall
-------- -------
not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the
Offered Shares have been so qualified, the Company will file
such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect
for a period of one year from the effective date of the
Registration Statement and any Rule 462(b) Registration
Statement (or such lesser period as may be required under
applicable law).
(vii) The Company will make generally available to its
securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
21
(viii) The Company will use the net proceeds received by it from the
sale of the Offered Shares in the manner specified in each
Prospectus under "Use of Proceeds".
(ix) The Company, during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), will file all
documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934
Act and the rules and regulations of the Commission
thereunder.
(x) The Company will file with the Commission such information on
Form 10-Q or Form 10-K as may be required pursuant to Rule
463 of the 1933 Act Regulations.
(xi) The Company will furnish to the Swiss Exchange, through the
Global Coordinator, any and all documents (including, without
limitation, an updated excerpt from the commercial register),
instruments, information and warranties that may be requested
by the Global Coordinator in order to obtain the listing of
the Common Stock for trading with official quotation on the
Swiss Exchange. The Company will sign the Initial
International Prospectus and the International Prospectus
including the relevant prospectus and any other necessary
documents to conform with the listing requirements of the
Swiss Exchange, and will deliver the same to the Global
Coordinator in due course to ensure the timely listing of the
Common Stock.
(xii) The Company will not issue, or announce the intent to issue,
shares of Common Stock or other securities convertible or
exchangeable into shares of Common Stock or representing
rights to subscribe for shares of Common Stock, for a period
from the date hereof until three years from the date of
initial quotation of the Common Stock on the Swiss Exchange
(the "INITIAL LISTING DATE"), other than (i) pursuant to the
exercise of options and warrants outstanding as of the date
hereof or conversion of convertible securities outstanding on
the date hereof, (ii) pursuant to the exercise of options
granted, or the purchase of shares, under the Company's
employee benefit plans existing on the date hereof, (iii) in
connection with any acquisition of a company, technology or
product, or any research, development, manufacturing or
marketing collaboration, or any other transaction where the
primary consideration for the issuance of the shares is other
than cash (iv) up to 100,000 shares or (v) pursuant to this
Agreement and the U.S. Underwriting Agreement, unless (A) the
issuance is approved by the Global Coordinator (which
approval may not unreasonably be withheld), (B) the issuance
is approved by a majority of the Company's stockholders
present,
22
in person or by proxy, at a stockholder meeting at which a
quorum is present, or by the written consent of holders of a
majority of the Company's outstanding Common Stock, (C) the
Common Stock is then listed, or designated for listing on
notice of issuance, on the Nasdaq National Market, the New
York Stock Exchange or the American Stock Exchange, or (D)
the Company's stockholders are provided with the right to
purchase their pro rata share of the issuance; and
(xiii) It will bear and pay any issue, stamp or other transactional
duty or tax (including interest and penalties, if any)
payable in connection with the issue of the New Shares and
the Greenshoe Shares.
(xiv) So long as the Common Stock is listed on the Swiss Exchange,
the Company shall comply with the publicity guidelines of the
listing rules of the Swiss Exchange.
6. Payment of Expenses
-------------------
The Company covenants and agrees with the several Managers that, in
addition to their other obligations hereunder and under the U.S.
Underwriting Agreement upon the purchase by the Managers and the U.S.
Managers of all of the New Shares, it will pay or cause to be paid to the
Global Coordinator for its own account up to a fixed sum in the aggregate
amount of 0.5% of the net proceeds to the Company from the sale of the New
Shares to the Managers and the U.S. Managers (but in no event more than CHF
600,000 in the aggregate pursuant to this Agreement and the U.S.
Underwriting Agreement) to cover the following costs:
(a) such expenses and listing fees as required in connection with the
listing of the Common Stock on the Swiss Exchange and the cost of the
listing advertisement;
(b) all expenses in connection with the preparation, printing and filing
of each U.S. Preliminary Prospectus, and any Term Sheets and each
Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Managers;
(c) the out-of-pocket expenses (including fees and disbursements of legal
counsel to the Managers and the U.S. Managers) incurred by the Global
Coordinator on behalf of the Managers and the U.S. Managers in
connection with the transactions contemplated by this Agreement and
the U.S. Underwriting Agreement;
(d) the cost and expenses of the Global Coordinator in connection with
"road show" presentations to be made to prospective investors;
23
(e) the cost of preparing certificates in definitive form representing
Offered Shares if required by the initial purchasers thereof in
connection with the Offering;
(f) all other expenses of the Global Coordinator.
In the event that all of the New Shares are not sold by the Company to the
Managers and the U.S. Managers, other than be reason of a breach of this
Agreement or the U.S. Underwriting Agreement by the Company or any Manager
or U.S. Manager, as the case may be, then the Company will pay or cause to
be paid to the Global Coordinator for its own account up to a fixed sum in
the aggregate amount of 0.25% of the net proceeds that would have been
received by the Company from the sale of the New Shares (but in no event
more than CHF 300,000 pursuant to this Agreement and the U.S. Underwriting
Agreement).
In addition, the Company covenants and agrees with the several Managers
that, in addition to their other obligations hereunder and under the U.S.
Underwriting Agreement, it will bear the following costs:
(a) the fees and expenses of the Company's counsel, accountants and other
advisors; and
(b) the fees and expenses of any transfer agent or registrar for the
Offered Shares.
7. Conditions Precedent
--------------------
(a) The obligations of the several Managers to purchase and pay for the
International Offered Shares are subject to the satisfaction of the
following conditions precedent:
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at the Closing Date no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Managers and the U.S. Managers. A prospectus containing the Rule
430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if
the Company has elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule
424(b);
24
(ii) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material
respects at the Closing Date and, with respect to the
International Greenshoe Shares, at the Greenshoe Closing Date, as
if made at the Closing Date and, with respect to the International
Greenshoe Shares, at the Greenshoe Closing Date, and all covenants
and agreements herein contained to be performed on the part of the
Company and all conditions herein contained to be fulfilled or
complied with by the Company at or prior to the Closing Date and,
with respect to the International Greenshoe Shares, at or prior to
the Greenshoe Closing Date shall have been performed, fulfilled or
complied with in all material respects
(iii) approval by the Admission Board (Zulassungsstelle) of the Swiss
Exchange of the application for the Common Stock to be listed for
trading with official quotation on the Swiss Exchange;
(iv) delivery to the Managers, except to the extent waived by the
Global Coordinator in writing (x) on the Closing Date and (y) on
the Greenshoe Closing Date (except items D and E):
(A) legal opinions, substantially in the agreed form, from (aa)
Fenwick & West LLP, U.S. counsel to the Company, (bb), Xxxx &
Staehelin, Swiss counsel to the Company, (cc) Burns, Doane,
Xxxxxxx & Xxxxxx, patent counsel to the Company, (dd)
Kleinfeld, Xxxxxx and Xxxxxx, regulatory counsel to the
Company and (ee) Shearman & Sterling, counsel to the Global
Coordinator and the Managers and the U.S. Managers;
(B) a certificate addressed to the Managers signed by the Company
and dated the Closing Date (or the Greenshoe Closing Date with
respect to the International Greenshoe Shares) to the effect
stated in Section 7(a)(ii);
(C) a comfort letter from the auditors of the Company
substantially in the agreed form;
(D) a copy of the Company's Certificate of Incorporation,
certified by the Secretary of State of the State of Delaware
as of the Closing Date or a date as near thereto as possible;
(E) an agreement between the Company and the Global Coordinator,
signed by the Company, with respect to the sale of an
additional 1.6 million share of Common Stock at the request of
the Global
25
Coordinator as described in the Prospectuses and substantially
in the agreed form.
(v) the resolutions of the Board of Directors of the Company
authorizing and approving the Offering and all actions taken or to
be taken in connection therewith including, without limitation,
the execution and delivery of this Agreement and the U.S.
Underwriting Agreement and the implementation of all transactions
contemplated hereby and thereby, certified by the Secretary of the
Company;
(vi) each of the persons listed on Schedule 2 hereto (consisting of the
executive officers and directors of the Company and any greater
than 1% stockholder) shall have agreed that they will not, for a
period of 180 days following the effective date of the
Registration Statement, directly or indirectly, offer to sell,
grant any option for the sale of, or otherwise dispose of, any
shares of Common Stock or securities convertible into or
exchangeable for any such shares, except with the prior written
consent of the Global Coordinator substantially in the agreed
form; and
(vii) execution and delivery of a pricing agreement between the Company
and the Global Coordinator substantially in the agreed form.
Documents in the agreed form means documents in the form signed for
identification on the date hereof by Shearman & Sterling.
(b) If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in
the case of any condition to the purchase of the International
Greenshoe Shares on the Greenshoe Closing Date, the obligations of the
several Managers to purchase the International Greenshoe Shares, may be
terminated by the Global Coordinator by notice to the Company at any
time at or prior to the Closing Date or the Greenshoe Closing Date, as
the case may be, and, subject to Sections 6 and 11 hereof, such
termination shall be without liability of any party to any other party
except that any liability (including as to indemnification) as a result
of any prior breach of the provisions of this Agreement or the U.S.
Underwriting Agreement shall continue in full force and effect.
8. Termination
-----------
(a) The Global Coordinator (on behalf of the Managers) may, by notice to
the Company, terminate this Agreement at any time whereupon the
obligation of the Managers to purchase and pay for the International
Offered Shares and to procure investors shall terminate if, in the
opinion of the Global Coordinator, (i) there has been, since the
26
time of execution of this Agreement, any material adverse change in the
financial condition, earnings or business affairs of the Company and
its Subsidiaries considered as one enterprise or (ii) there has
occurred any material adverse change in the financial markets in the
United Kingdom, the United States, Switzerland or the international
financial markets, any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions in the United Kingdom, the United States or
Switzerland and the effect of any such material adverse change,
outbreak, escalation, calamity, crisis, change or development is such
as to make it impossible or impracticable to market the Offered Shares
or to enforce contracts for the sale of the Offered Shares, or (iii)
trading generally on either the Swiss Exchange, the London Stock
Exchange or the New York Stock Exchange or the Nasdaq National Market
has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by any of said exchanges or by such system or by order of the
United States Securities and Exchange Commission, the National
Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) a banking moratorium has been declared by the United
States, New York State, Switzerland or the United Kingdom, or (v) there
has been a material change, or an official announcement by a competent
authority of a prospective material change, in Swiss, United Kingdom or
United States taxation affecting the transfer of the Common Stock, or
(vi) there has been any material adverse change in currency rates
between the U.S. dollar and the Swiss franc, or (vii) additional
exchange controls are imposed by Switzerland or the United States.
(b) In the event that a pricing agreement is not entered into by September
8, 1998, the Global Coordinator (on behalf of the Managers) may, by
notice to the Company, terminate this Agreement.
(c) In the event that this Agreement is terminated pursuant to this Section
8, the parties to this Agreement shall be released and discharged from
their respective obligations hereunder except for any liability
(including as to indemnification) of any party hereto as a result of
any prior breach by it of this Agreement. In such event any costs,
charges and expenses shall be paid as provided for in Section 6.
9. Indemnification
---------------
(a) The Company will indemnify and hold harmless each Manager against any
losses, claims, damages or liabilities, joint or several, to which such
Manager may become subject, under Swiss law, the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i)
27
an untrue statement or alleged untrue statement of a material fact
contained in any U.S. Preliminary Prospectus, the Registration
Statement or any Prospectus, including any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any U.S.
Preliminary Prospectus, the Registration Statement or any Prospectus,
including any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading or
(iii) any breach by the Company of its representations, warranties or
obligations under this Agreement or the U.S. Underwriting Agreement,
and will reimburse each Manager for any legal or other expenses
reasonably incurred by such Manager in connection with defending any
such action or claim as such expenses are incurred; provided that the
--------
Company shall not be liable to any Manager under this subsection (a)
with respect to any Initial International Prospectus or U.S.
Preliminary Prospectus to the extent that any loss, claim, damage or
liability of such Manager results from the fact that such Manager sold
International Offered Shares to a person to whom there was not given or
sent, at or prior to the written confirmation of such sale, a copy of
the International Prospectus or U.S. Prospectus, as the case may be, as
then amended or supplemented, in any case where such delivery is
required by applicable law if the Company had previously furnished
copies thereof to such Manager and loss, claim, damage or liability of
such Manager results from an untrue statement or omission of a material
fact contained in an Initial International Prospectus or U.S.
Preliminary Prospectus that was corrected in the International
Prospectus or U.S. Prospectus, as the case may be (as amended or
supplemented).
(b) Each Manager will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become
subject, under Swiss law, the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) (A) an untrue statement or alleged
untrue statement of a material fact contained in any U.S. Preliminary
Prospectus, the Registration Statement or any Prospectus, including any
amendment or supplement thereto or (B) the omission or alleged omission
to state in any U.S. Preliminary Prospectus, the Registration Statement
or any Prospectus, including any amendment or supplement thereto, 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any U.S. Preliminary
Prospectus, the Registration Statement or any Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Manager through the Global
Coordinator expressly for use therein, or (ii) any breach by such
Manager of its representations, warranties or obligations in this
Agreement or the U.S. Underwriting Agreement, and will
28
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability
hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which
it may have otherwise than under this Agreement. In case any such
action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall have the option to assume the defense thereof
including the employment of legal advisors approved by the indemnified
party (such approval not to be unreasonably withheld), subject to the
payment by the indemnifying party of all expenses. Any indemnified
party shall have the right to employ separate legal advisors in any
such action and defend or participate in the defense thereof, but the
fees and expenses of such legal advisors shall be borne by such
indemnified party, unless the indemnifying party has specifically
authorised the employment thereof or has failed to assume such defense
and to employ legal advisors approved as a aforesaid for such purpose.
The indemnifying party shall not be liable to indemnify any indemnified
party for any settlement of any claim, action or demand made without
its consent (such consent not to be unreasonably withheld), unless the
indemnifying party fails to assume the defense thereof and to employ
legal advisors as aforesaid for such purpose.
(d) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Managers on the other from the offering of the
International Offered Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Managers on the other in connection with the
29
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Managers on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Managers, in each case as set forth in the table on the cover page of
the Prospectuses. The relative fault 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 on the one
hand or the Managers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Managers agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Managers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Manager shall
be required to contribute any amount in excess of the amount by which
the total price at which the International Offered Shares underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such Manager has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Managers' obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which any of them may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of each Manager and to each person, if any, who controls, is
controlled by or is under common control with any Manager; and the
obligations of the Managers under this Section 9 shall be in addition
to any liability which the respective Managers may otherwise have and
shall extend, upon the same terms and conditions, to each officer,
director and stockholder of the Company to the extent applicable and to
each person, if any,
30
who controls, is controlled by or is under common control with any of
the foregoing (to the extent applicable).
10. Representations and Indemnities to Survive
------------------------------------------
The respective indemnities, agreements, warranties and other statements of
the Company and the several Managers, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation (or
any statements as to the results thereof) made by or on behalf of any
Manager or any officer or director of any Manager or any person who
controls, is controlled by or is under common control with any Manager, or
made by or on behalf of the Company or any officer or director of any of
the foregoing or any person who controls, is controlled by or is under
common control with the Company, and shall survive delivery of and payment
for the International Offered Shares.
11. Reimbursement on Termination or Default
---------------------------------------
If for any reason any International Offered Shares are not delivered by or
on behalf of the Company when and as required herein, and such non-delivery
shall be a result of a breach by the Company of its obligations hereunder,
the Company will reimburse the Managers through the Global Coordinator for
all out-of-pocket expenses approved in writing by the Global Coordinator,
including fees and disbursements of counsel, reasonably incurred by the
Managers in making preparations for the purchase, sale and delivery of the
International Offered Shares not so delivered by the Company, but the
Company shall then be under no further liability to any Manager in respect
of such International Offered Shares, except as provided in Sections 9
hereof. Notwithstanding the foregoing, in the event of a default of a
Manager in respect of its obligation to purchase any International Offered
Shares, the Company shall be under no further liability to such Manager.
In any other event, any costs, charges and expenses shall be paid as
provided for in Section 6.
12. Stabilisation
-------------
The Global Coordinator may, to the extent permitted by, and in accordance
with, applicable laws and regulations, overallot and effect transactions on
the Swiss Exchange or otherwise outside of the United States in connection
with the offer and sale of the Offered Shares with a view to establishing
or maintaining the market price of the Offered Shares at levels which might
not otherwise prevail but, in doing so, the Global Coordinator shall act as
agent of the Managers (as principals) and not as agent of the Company and
any profit or loss resulting from such overallotment and stabilisation
shall be retained or borne (as the case may be) by
31
the Managers. The Company shall not as a result of any action taken by the
Global Coordinator under this Section 12 be obliged to sell to the Managers
any shares of Common Stock in excess of the number of Offered Shares to be
sold as set forth in Section 1 of this Agreement.
13. Notices
-------
All statements, requests, notices and agreements, hereunder shall be in
writing with copies to each of the Global Coordinator and the Company, and
(i) if to the Managers shall be delivered or sent by international courier,
telex or facsimile transmission care of Bank X. Xxxxxxxx, Xxxxxxxxxxxxxx 0,
0000 Xxxxxx, Xxxxxxxxx: Corporate Finance, facsimile transmission No. (+41-
1) 283-7075; and (ii) if to the Company shall be delivered or sent by
international courier or facsimile transmission to Centaur Pharmaceuticals,
Inc., 000 Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx
Xxxxxx, facsimile transmission No. (000) 000-0000. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
14. Successors
----------
This Agreement shall be binding upon, and inure solely to the benefit of,
the Managers and the Company and, to the extent provided in Section 9
hereof, the officers, directors and stockholders of, and each person who
controls, is controlled by or is under common control with the Company or
any Manager, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Shares from any Manager shall
be deemed a successor or assign by reason merely of such purchase.
15. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
substantive law of Switzerland.
16. Submission to Jurisdiction
--------------------------
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by any Manager or by any officer or director
of any Manager or by any person who controls, is controlled by or is under
common control with any Manager arising out of or based upon this Agreement
or the U.S. Underwriting Agreement or the transactions
32
contemplated herein or therein shall be brought in the competent commercial
court (Handelsgericht) in Zurich, Switzerland, (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding and (iii)
submits to the exclusive jurisdiction of such court in any such suit,
action or proceeding.
17. Counterparts
------------
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
18. Severability
------------
Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be unenforceable or invalid under
applicable law, such provision shall be ineffective only to the extent of
such unenforceability or invalidity and be replaced by such valid and
enforceable provision which the parties bona fide consider to match as
closely as possible the invalid or unenforceable provision, attaining the
same or a similar economic effect. The remaining provisions of this
Agreement shall under all circumstances continue to be binding and in full
force and effect.
33
If the foregoing is in accordance with your understanding, please sign and
return to us 8 counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Managers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Managers and the Company.
Very truly yours,
CENTAUR PHARMACEUTICALS, INC.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Accepted as of the date hereof:
BANK X. XXXXXXXX & CO AG
By:___________________________________
Name:
Title:
LOMBARD ODIER & CIE
VECTOR SECURITIES INTERNATIONAL , INC.
By:___________________________________
Duly Authorized Attorneys
SCHEDULE 1
----------
MANAGERS
_____________________________
| |
| INTERNATIONAL OFFERED |
| SHARES |
_____________________________|___________________________|
| | |
| Bank X. Xxxxxxxx & Co AG | |
| | |
|____________________________|___________________________|
| | |
| Lombard Odier & Cie | |
| | |
|____________________________|___________________________|
| | |
| Vector Securities | |
| International, Inc. | |
| | |
|____________________________|___________________________|
| | |
|____________________________|___________________________|
| | |
|____________________________|___________________________|
| | |
|____________________________|___________________________|
| | |
|____________________________|___________________________|
| | |
|____________________________|___________________________|
| | |
|____________________________|___________________________|
| | |
| TOTAL | |
|____________________________|___________________________|
SCHEDULE 2
----------
EXECUTIVE OFFICERS, DIRECTORS AND 1% STOCKHOLDERS
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxx X. Xxxxx
[additional 1% or greater stockholders]
