Exhibit 1.1
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2,730,000 SHARES
SUPERGEN, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
DATED MARCH 16, 0000
XXXX XX XXXXXXX SECURITIES LLC
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
WARBURG DILLON READ LLC
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TABLE OF CONTENTS
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SECTION 1. REPRESENTATIONS AND WARRANTIES.................................................................2
A. Representations and Warranties of the Company and the Selling Stockholders..............................2
(a) COMPLIANCE WITH REGISTRATION REQUIREMENTS......................................................2
(b) OFFERING MATERIALS FURNISHED TO UNDERWRITERS...................................................3
(c) DISTRIBUTION OF OFFERING MATERIAL BY THE COMPANY...............................................3
(d) THE UNDERWRITING AGREEMENT.....................................................................3
(e) AUTHORIZATION OF THE COMMON SHARES.............................................................3
(f) NO APPLICABLE REGISTRATION OR OTHER SIMILAR RIGHTS.............................................4
(g) NO MATERIAL ADVERSE CHANGE.....................................................................4
(h) INDEPENDENT ACCOUNTANTS........................................................................4
(i) PREPARATION OF THE FINANCIAL STATEMENTS........................................................4
(j) INCORPORATION AND GOOD STANDING OF THE COMPANY AND ITS SUBSIDIARIES............................5
(k) CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS.................................................5
(l) STOCK EXCHANGE LISTING.........................................................................6
(m) EXCHANGE ACT COMPLIANCE........................................................................6
(n) NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO FURTHER AUTHORIZATIONS OR APPROVALS
REQUIRED.......................................................................................6
(o) NO MATERIAL ACTIONS OR PROCEEDINGS.............................................................7
(p) INTELLECTUAL PROPERTY RIGHTS...................................................................7
(q) ALL NECESSARY PERMITS, ETC.....................................................................7
(r) TITLE TO PROPERTIES............................................................................7
(s) TAX LAW COMPLIANCE.............................................................................8
(t) COMPANY NOT AN "INVESTMENT COMPANY"............................................................8
(u) INSURANCE......................................................................................8
(v) NO PRICE STABILIZATION OR MANIPULATION.........................................................8
(w) RELATED PARTY TRANSACTIONS.....................................................................8
(x) NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS....................................................8
(y) COMPANY'S ACCOUNTING SYSTEM....................................................................9
(z) COMPLIANCE WITH ENVIRONMENTAL LAWS.............................................................9
(aa) ERISA COMPLIANCE..............................................................................10
(bb) YEAR 2000.....................................................................................10
B. Representations and Warranties of the Selling Stockholders.............................................10
(a) THE UNDERWRITING AGREEMENT....................................................................10
(b) THE CUSTODY AGREEMENT AND POWER OF ATTORNEY...................................................10
(c) TITLE TO COMMON SHARES TO BE SOLD; ALL AUTHORIZATIONS OBTAINED................................11
(d) DELIVERY OF THE COMMON SHARES TO BE SOLD......................................................11
(e) NON-CONTRAVENTION; NO FURTHER AUTHORIZATIONS OR APPROVALS REQUIRED............................11
(f) NO REGISTRATION OR OTHER SIMILAR RIGHTS.......................................................11
(g) NO FURTHER CONSENTS, ETC......................................................................12
(h) DISCLOSURE MADE BY SUCH SELLING STOCKHOLDER IN THE PROSPECTUS.................................12
(i) NO PRICE STABILIZATION OR MANIPULATION........................................................12
(j) REVIEW OF COMPANY'S REPRESENTATIONS AND WARRANTIES............................................12
(k) REVIEW OF PROSPECTUS..........................................................................12
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TABLE OF CONTENTS
(CONTINUED)
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SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES..............................................12
(a) THE FIRM COMMON SHARES........................................................................12
(b) THE FIRST CLOSING DATE........................................................................13
(c) THE OPTIONAL COMMON SHARES; THE SECOND CLOSING DATE...........................................13
(d) PUBLIC OFFERING OF THE COMMON SHARES..........................................................14
(e) PAYMENT FOR THE COMMON SHARES.................................................................14
(f) DELIVERY OF THE COMMON SHARES.................................................................15
(g) DELIVERY OF PROSPECTUS TO THE UNDERWRITERS....................................................15
SECTION 3. ADDITIONAL COVENANTS..........................................................................15
A. Covenants of the Company...............................................................................15
(a) REPRESENTATIVES' REVIEW OF PROPOSED AMENDMENTS AND SUPPLEMENTS................................15
(b) SECURITIES ACT COMPLIANCE.....................................................................16
(c) AMENDMENTS AND SUPPLEMENTS TO THE PROSPECTUS AND OTHER SECURITIES ACT MATTERS.................16
(d) COPIES OF ANY AMENDMENTS AND SUPPLEMENTS TO THE PROSPECTUS....................................16
(e) BLUE SKY COMPLIANCE...........................................................................17
(f) USE OF PROCEEDS...............................................................................17
(g) TRANSFER AGENT................................................................................17
(h) EARNINGS STATEMENT............................................................................17
(i) PERIODIC REPORTING OBLIGATIONS................................................................17
(j) COMPANY TO PROVIDE COPY OF THE PROSPECTUS IN FORM THAT MAY BE DOWNLOADED FROM THE
INTERNET......................................................................................17
(k) AGREEMENT NOT TO OFFER OR SELL ADDITIONAL SECURITIES..........................................18
(l) FUTURE REPORTS TO THE REPRESENTATIVES.........................................................18
B. Covenants of the Selling Stockholders..................................................................19
(a) AGREEMENT NOT TO OFFER OR SELL ADDITIONAL SECURITIES..........................................19
(b) DELIVERY OF FORMS W-8 AND W-9.................................................................19
SECTION 4. PAYMENT OF EXPENSES...........................................................................19
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.............................................20
(a) ACCOUNTANTS' COMFORT LETTER...................................................................20
(b) COMPLIANCE WITH REGISTRATION REQUIREMENTS; NO STOP ORDER; NO OBJECTION FROM NASD..............20
(c) NO MATERIAL ADVERSE CHANGE....................................................................21
(d) OPINION OF COUNSEL FOR THE COMPANY............................................................21
(e) OPINION OF INTELLECTUAL PROPERTY COUNSEL FOR THE COMPANY......................................21
(f) OPINION OF FDA REGULATORY COUNSEL FOR THE COMPANY.............................................21
(g) OPINION OF COUNSEL FOR THE UNDERWRITERS.......................................................22
(h) OFFICERS' CERTIFICATE.........................................................................22
(i) BRING-DOWN COMFORT LETTER.....................................................................22
(j) OPINIONS OF COUNSEL FOR THE SELLING STOCKHOLDERS..............................................22
(k) SELLING STOCKHOLDERS' CERTIFICATE.............................................................23
(l) SELLING STOCKHOLDERS' DOCUMENTS...............................................................23
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TABLE OF CONTENTS
(CONTINUED)
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(m) LOCK-UP AGREEMENT FROM CERTAIN SECURITYHOLDERS OF THE COMPANY OTHER THAN SELLING
STOCKHOLDERS..................................................................................23
(n) ADDITIONAL DOCUMENTS..........................................................................23
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.......................................................24
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT...............................................................24
SECTION 8. INDEMNIFICATION...............................................................................24
(a) INDEMNIFICATION OF THE UNDERWRITERS...........................................................24
(b) INDEMNIFICATION OF THE COMPANY, ITS DIRECTORS AND OFFICERS....................................25
(c) NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES............................................26
(d) SETTLEMENTS...................................................................................27
SECTION 9. CONTRIBUTION..................................................................................27
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS............................................29
SECTION 11. TERMINATION OF THIS AGREEMENT.................................................................29
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY...........................................30
SECTION 13. NOTICES.......................................................................................30
SECTION 14. SUCCESSORS....................................................................................31
SECTION 15. PARTIAL UNENFORCEABILITY......................................................................31
SECTION 16. GOVERNING LAW PROVISIONS......................................................................32
(a) CHOICE OF LAW.................................................................................32
(b) CONSENT TO JURISDICTION.......................................................................32
SECTION 17. FAILURE OF ONE OR MORE OF THE SELLING STOCKHOLDERS TO SELL AND DELIVER COMMON SHARES..........32
SECTION 18. GENERAL PROVISIONS............................................................................32
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UNDERWRITING AGREEMENT
March 16, 0000
XXXX XX XXXXXXX SECURITIES LLC
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
Warburg Dillon Read LLC
As Representatives of the several Underwriters
c/o Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
INTRODUCTORY. SuperGen, Inc., a Delaware corporation (the
"Company), proposes to issue and sell to the several underwriters named in
SCHEDULE A (the "Underwriters") an aggregate of 2,000,000 shares of its Common
Stock, par value $0.001 per share (the "Common Stock"); and the stockholders of
the Company named in SCHEDULE B (collectively, the "Selling Stockholders")
severally propose to sell to the Underwriters an aggregate of 730,000 shares of
Common Stock. The 2,000,000 shares of Common Stock to be sold by the Company and
the 730,000 shares of Common Stock to be sold by the Selling Stockholders are
collectively called the "Firm Common Shares." In addition, the Selling
Stockholders have severally granted to the Underwriters an option to purchase up
to an additional 409,500 shares (the "Optional Common Shares") of Common Stock,
as provided in Section 2, each Selling Stockholder selling up to the amount set
forth opposite such Selling Stockholder's name in SCHEDULE B. The Firm Common
Shares and, if and to the extent such option is exercised, the Optional Common
Shares are collectively called the "Common Shares." Banc of America Securities
LLC ("BAS"), Xxxxxx Brothers Inc., Prudential Securities Incorporated and
Warburg Dillon Read LLC have agreed to act as representatives of the several
Underwriters (in such capacity, the "Representatives") in connection with the
offering and sale of the Common Shares.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-30350), which contains a form of prospectus to be used in
connection with the public offering and sale of the Common Shares. Such
registration statement, as amended, including the financial statements, exhibits
and schedules thereto, in the form in which it was declared effective by the
Commission under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the "Securities Act"),
including all documents incorporated or deemed to be incorporated by reference
therein and any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430A or Rule 434 under the Securities Act or the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder (collectively, the "Exchange Act"), is called the "Registration
Statement." Any registration statement filed by the Company pursuant to Rule
462(b) under the Securities Act is called the "Rule 462(b) Registration
Statement," and from and after the date and time of filing of the Rule 462(b)
Registration Statement the term "Registration Statement" shall include the Rule
462(b) Registration Statement. Such prospectus, in the form first used by the
Underwriters to confirm sales of the Common Shares, is called the "Prospectus";
provided, however, if the Company has, with the consent of BAS, elected to rely
upon Rule 434 under the Securities Act, the term "Prospectus" shall mean the
Company's
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prospectus subject to completion (each, a "preliminary prospectus")
dated February 28, 2000 (such preliminary prospectus is called the "Rule 434
preliminary prospectus"), together with the applicable term sheet (the "Term
Sheet") prepared and filed by the Company with the Commission under Rules 434
and 424(b) under the Securities Act and all references in this Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. All references in
this Agreement to (i) the Registration Statement, the Rule 462(b) Registration
Statement, a preliminary prospectus, the Prospectus or the Term Sheet, or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX") and (ii) the Prospectus shall be deemed
to include any "electronic Prospectus" provided for use in connection with the
offering of the Common Shares as contemplated by Section 3(A)(k) of this
Agreement. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The Company and each of the Selling Stockholders hereby
confirm their respective agreements with the Underwriters as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES.
A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . The Company hereby
represents, warrants and covenants to each Underwriter as follows:
(a) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement and any Rule 462(b) Registration Statement have
been declared effective by the Commission under the Securities Act. The
Company has complied to the Commission's satisfaction with all requests
of the Commission for additional or supplemental information. No stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement is in effect and no proceedings for
such purpose have been instituted or are pending or, to the best
knowledge of the Company, are contemplated or threatened by the
Commission.
Each preliminary prospectus and the Prospectus when filed
complied in all material respects with the Securities Act and, if filed
by electronic transmission pursuant to XXXXX (except as may be
permitted by Regulation S-T under the Securities Act), was identical to
the copy thereof delivered to the Underwriters for use in connection
with the offer and sale of the Common Shares. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time it became effective and
at all subsequent times, complied and will comply in all material
respects with the Securities Act and did not and will not contain any
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. The Prospectus, as amended or supplemented, as
of its date and at all subsequent times, did not and will not contain
any untrue statement of a material fact or 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. The
representations and warranties set forth in the two immediately
preceding sentences do not apply to statements in or omissions from the
Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with
information
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relating to any Underwriter furnished to the Company in writing by the
Representatives expressly for use therein. There are no contracts or
other documents required to be described in the Prospectus or to be
filed as exhibits to the Registration Statement which have not been
described or filed as required.
(b) OFFERING MATERIALS FURNISHED TO UNDERWRITERS. The Company
has delivered to the Representatives one copy of the manually signed
signature page to the Registration Statement and of each consent and
certificate of experts filed as a part thereof, and conformed copies of
the Registration Statement (without exhibits) and preliminary
prospectuses and the Prospectus, as amended or supplemented, in such
quantities and at such places as the Representatives have reasonably
requested for each of the Underwriters.
(c) DISTRIBUTION OF OFFERING MATERIAL BY THE COMPANY. The
Company has not distributed and will not distribute, prior to the later
of the Second Closing Date (as defined below) and the completion of the
Underwriters' distribution of the Common Shares, any offering material
in connection with the offering and sale of the Common Shares other
than a preliminary prospectus, the Prospectus or the Registration
Statement.
(d) THE UNDERWRITING AGREEMENT. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or
by general equitable principles.
(e) AUTHORIZATION OF THE COMMON SHARES. The Common Shares to
be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement, will be
validly issued, fully paid and nonassessable.
(f) NO APPLICABLE REGISTRATION OR OTHER SIMILAR RIGHTS. There
are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration
Statement or included in the offering contemplated by this Agreement,
other than the Selling Stockholders with respect to the Common Shares
included in the Registration Statement, except for such rights as have
been duly waived.
(g) NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed
in the Prospectus, subsequent to the respective dates as of which
information is given in the Prospectus: (i) there has been no material
adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations, whether or not
arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity (any such change
is called a "Material Adverse Change"); (ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction
or agreement not in the ordinary course of business; and (iii) there
has been no dividend or distribution of any kind declared, paid or made
by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of
any class of capital stock.
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(h) INDEPENDENT ACCOUNTANTS. Ernst & Young LLP, who have
expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission as a part of the
Registration Statement and included or incorporated by reference in the
Prospectus, are independent public or certified public accountants as
required by the Securities Act and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). Xxxxxx Xxxxxxxx LLP, who have
expressed their opinion with respect to certain financial statements
(which term as used in this Agreement includes the related notes
thereto) and supporting schedules incorporated by reference in the
Registration Statement and the Prospectus, are independent public or
certified public accountants as required by the Securities Act and the
Exchange Act.
(i) PREPARATION OF THE FINANCIAL STATEMENTS. The financial
statements filed with the Commission as a part of the Registration
Statement and included or incorporated by reference in the Prospectus
present fairly the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. The
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein. Such financial statements and supporting schedules have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto. No other financial statements or supporting schedules are
required to be included or incorporated by reference in the
Registration Statement. The financial data set forth in the Prospectus
under the captions "Prospectus Summary--Summary Consolidated Financial
Data", "Selected Financial Data" and "Capitalization" fairly present
the information set forth therein on a basis consistent with that of
the audited financial statements contained in the Registration
Statement. The pro forma financial data of the Company and its
subsidiaries included under the caption "Prospectus Summary--Summary
Consolidated Financial Data" and elsewhere in the Prospectus and in the
Registration Statement present fairly the information contained
therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have
been properly presented on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(j) INCORPORATION AND GOOD STANDING OF THE COMPANY AND ITS
SUBSIDIARIES. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and, in the
case of the Company, to enter into and perform its obligations under
this Agreement. Each of the Company and each subsidiary is duly
qualified as a foreign corporation to transact business and is in good
standing in the State of California and each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for
such jurisdictions (other than the State of California) where the
failure to so qualify or to be in good standing would not, individually
or in the aggregate, result in a Material Adverse Change. All of the
issued and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance or claim.
The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries
listed in Exhibit 21 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1999.
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(k) CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS. The
authorized, issued and outstanding capital stock of the Company is as
set forth in the Prospectus under the caption "Capitalization" (other
than for subsequent issuances, if any, pursuant to employee benefit
plans described in the Prospectus or upon exercise of outstanding
options or warrants described in the Prospectus). The Common Stock
(including the Common Shares) conforms in all material respects to the
description thereof contained in the Prospectus. All of the issued and
outstanding shares of Common Stock (including the shares of Common
Stock to be sold to the Underwriters by the Selling Stockholders) have
been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase,
or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its
subsidiaries other than those accurately described in the Prospectus.
The description of the Company's stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted
thereunder, set forth or incorporated by reference in the Prospectus is
an accurate summary and fairly presents the information required to be
shown with respect to such plans, arrangements, options and rights.
(l) STOCK EXCHANGE LISTING. The Common Stock (including the
Common Shares) is registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934 (the "Exchange Act") and is listed on
the Nasdaq National Market, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting
the Common Stock from the Nasdaq National Market, nor has the Company
received any notification that the Commission or the National
Association of Securities Dealers, Inc. (together with its regulatory
subsidiary, NASD Regulation, Inc., the "NASD") is contemplating
terminating such registration or listing.
(m) EXCHANGE ACT COMPLIANCE. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the
Prospectus, at the time the Registration Statement and any amendments
thereto become effective and at the First Closing Date and the Second
Closing Date, as the case may be, will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(n) NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO FURTHER
AUTHORIZATIONS OR APPROVALS REQUIRED. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws or is in
default (or, with the giving of notice or lapse of time, would be in
default) ("Default") under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other 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 of its subsidiaries is subject (each, an
"Existing Instrument"), except for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change.
The Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the
Prospectus (i) have been duly authorized by all necessary corporate
action and will not result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary, (ii) will not
conflict with or constitute a breach of, or Default under, or result in
the
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creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, or require the consent of any other party to, any Existing
Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate,
result in a Material Adverse Change and (iii) will not result in any
violation of any law, administrative regulation or administrative or
court decree applicable to the Company or any subsidiary. No consent,
approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or
agency, is required for the Company's execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby and by the Prospectus, except such as have been
obtained or made by the Company and are in full force and effect under
the Securities Act, applicable state securities or blue sky laws and
from the NASD.
(o) NO MATERIAL ACTIONS OR PROCEEDINGS. There is no legal or
governmental action, suit or proceeding pending or, to the Company's
knowledge, threatened (i) against or affecting the Company or any of
its subsidiaries, or (ii) which has as the subject thereof any officer
or director of, or property owned or leased by, the Company or any of
its subsidiaries or (iii) relating to environmental or discrimination
matters, where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely to
the Company or such officer, director or subsidiary and (B) any such
action, suit or proceeding, if so determined adversely, would
reasonably be expected to result in a Material Adverse Change or
adversely affect the consummation of the transactions contemplated by
this Agreement. No labor dispute with the employees of the Company or
any of its subsidiaries, or to the Company's knowledge, with the
employees of any principal supplier of the Company, exists or, to the
Company's knowledge, is threatened or imminent, which could reasonably
be expected to result in a Material Adverse Change.
(p) INTELLECTUAL PROPERTY RIGHTS. Except as otherwise
disclosed in the Prospectus, The Company and its subsidiaries own or
possess or can obtain without significant expense sufficient
trademarks, trade names, patent rights, copyrights, licenses,
approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary to conduct their
businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not reasonably be expected to result
in a Material Adverse Change. Neither the Company nor any of its
subsidiaries has received any notice of infringement or conflict with
asserted Intellectual Property Rights of others, which infringement or
conflict, if the subject of an unfavorable decision, would result in a
Material Adverse Change.
(q) ALL NECESSARY PERMITS, ETC. Except as otherwise disclosed
in the Prospectus, the Company and each subsidiary possess such valid
and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the
Company nor any subsidiary has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to result in a Material Adverse
Change.
(r) TITLE TO PROPERTIES. Except as otherwise disclosed in the
Prospectus, the Company and each of its subsidiaries has good and
marketable title to all the properties and assets reflected as owned in
the financial statements referred to in Section 1(A)(i) above (or
elsewhere in the Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, claims
and other defects, except such as do not materially and adversely
affect the value of such property and do not materially interfere with
the use made or proposed to
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be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under
lease by the Company or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the
Company or such subsidiary.
(s) TAX LAW COMPLIANCE. The Company and its subsidiaries have
filed all necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof and have paid all
taxes required to be paid by any of them, and, if due and payable, any
related or similar assessment, fine or penalty levied against any of
them, except for any tax, assessment, fine or penalty that is being
contested in good faith. The Company has made adequate charges,
accruals and reserves in the applicable financial statements referred
to in Section 1(A)(i) above in respect of all federal, state and
foreign income and franchise taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been
finally determined.
(t) COMPANY NOT AN "INVESTMENT COMPANY". The Company has been
advised of the rules and requirements under the Investment Company Act
of 1940, as amended (the "Investment Company Act"). The Company is not,
and after receipt of payment for the Common Shares will not be, an
"investment company" within the meaning of Investment Company Act and
will conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(u) INSURANCE. The Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies
in such amounts and with such deductibles and covering such risks as
are generally deemed adequate and customary for their businesses. The
Company has no reason to believe that it or any subsidiary will not be
able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not reasonably be expected to
result in a Material Adverse Change. Neither of the Company nor any
subsidiary has been denied any insurance coverage which it has sought
or for which it has applied.
(v) NO PRICE STABILIZATION OR MANIPULATION. The Company has
not taken and will not 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 to
facilitate the sale or resale of the Common Shares.
(w) RELATED PARTY TRANSACTIONS. There are no business
relationships or related-party transactions involving the Company or
any subsidiary or any other person required to be described in the
Prospectus which have not been described as required.
(x) NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS. Neither the
Company nor any of its subsidiaries nor, to the knowledge of the
Company's Chief Executive Officer or Chief Financial Officer, any
employee or agent of the Company or any subsidiary, has made any
contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or of the
character required to be disclosed in the Prospectus.
(y) COMPANY'S ACCOUNTING SYSTEM. The Company maintains a
system of accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as
7
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (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 existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as would not
reasonably be expected to, individually or in the aggregate, result in
a Material Adverse Change (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
law or regulation relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively, "Materials
of Environmental Concern"), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Materials of Environment Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or noncompliance with
the terms and conditions thereof, nor has the Company or any of its
subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that the Company or any of its subsidiaries is in violation of
any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no
written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries,
attorneys' fees or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by the
Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person
or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or
by operation of law; and (iii) to the Company's knowledge, there are no
past or present actions, activities, circumstances, conditions, events
or incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Material of Environmental
Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim
against the Company or any of its subsidiaries or against any person or
entity whose liability for any Environmental Claim the Company or any
of its subsidiaries has retained or assumed either contractually or by
operation of law.
(aa) ERISA COMPLIANCE. The Company and its subsidiaries and
any "employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA"))
established or maintained by the Company, its subsidiaries or their
"ERISA Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations
described in Sections 414(b),(c),(m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or
8
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates, if such
"employee benefit plan" were terminated, would have any "amount of
unfunded benefit liabilities" (as defined under ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has
incurred or reasonably expects to incur any liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of
the Code. Each "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification.
(bb) YEAR 2000. All disclosure regarding year 2000 compliance
that is required to be described under the Securities Act has been
included in the Prospectus. The Company has not incured significant
operating expenses or costs to ensure that its information systems will
be year 2000 complaint, other than as disclosed in the Prospectus.
Any certificate signed by an officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter as
to the matters set forth therein.
B. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. In
addition to the representations, warranties and covenants set forth in Section
1(A), each Selling Stockholder represents, warrants and covenants to each
Underwriter as follows:
(a) THE UNDERWRITING AGREEMENT. This Agreement has been duly
authorized, executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms, except as rights
to indemnification hereunder may be limited by applicable law and
except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles.
(b) THE CUSTODY AGREEMENT AND POWER OF ATTORNEY. Each of the
(i) Custody Agreement signed by such Selling Stockholder and
ChaseMellon Shareholder Services LLC, as custodian (the "Custodian"),
relating to the deposit of the Common Shares to be sold by such Selling
Stockholder (the "Custody Agreement") and (ii) Power of Attorney
appointing certain individuals named therein as such Selling
Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the
extent set forth therein relating to the transactions contemplated
hereby and by the Prospectus (the "Power of Attorney"), of such Selling
Stockholder has been duly authorized, executed and delivered by such
Selling Stockholder and is a valid and binding agreement of such
Selling Stockholder, enforceable in accordance with its terms, except
as rights to indemnification thereunder may be limited by applicable
law and except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles.
(c) TITLE TO COMMON SHARES TO BE SOLD; ALL AUTHORIZATIONS
OBTAINED. Such Selling Stockholder has, and on the First Closing Date
and the Second Closing Date (as defined below) will have, good and
valid title to all of the Common Shares which may be sold by such
Selling Stockholder pursuant to this Agreement on such date and the
legal right and power, and all authorizations and approvals required by
law and, if applicable, under its charter or by-laws, to enter into
this Agreement and its Custody Agreement and Power of Attorney, to
sell, transfer and
9
deliver all of the Common Shares which may be sold by such Selling
Stockholder pursuant to this Agreement and to comply with its other
obligations hereunder and thereunder.
(d) DELIVERY OF THE COMMON SHARES TO BE SOLD. Delivery of the
Common Shares which are sold by such Selling Stockholder pursuant to
this Agreement will pass good and valid title to such Common Shares,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance or other claim.
(e) NON-CONTRAVENTION; NO FURTHER AUTHORIZATIONS OR APPROVALS
REQUIRED. The execution and delivery by such Selling Stockholder of,
and the performance by such Selling Stockholder of its obligations
under, this Agreement, the Custody Agreement and the Power of Attorney
will not contravene or conflict with, result in a breach of, or
constitute a Default under, or require the consent of any other party
to, the charter or by-laws or other organizational documents of such
Selling Stockholder, if applicable, or any other material agreement or
instrument to which such Selling Stockholder is a party or by which it
is bound or under which it is entitled to any right or benefit, any
provision of applicable law or any judgment, order, decree or
regulation applicable to such Selling Stockholder of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Stockholder. No consent,
approval, authorization or other order of, or registration or filing
with, any court or other governmental authority or agency, is required
for the consummation by such Selling Stockholder of the transactions
contemplated in this Agreement, except such as have been obtained or
made and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and from the NASD.
(f) NO REGISTRATION OR OTHER SIMILAR RIGHTS. Such Selling
Stockholder does not have any registration or other similar rights to
have any equity or debt securities registered for sale by the Company
under the Registration Statement or included in the offering
contemplated by this Agreement, except for such shares as are included
in the Registration Statement and except for such rights as have been
duly waived.
(g) NO FURTHER CONSENTS, ETC. Except for the (i) exercise by
such Selling Stockholder of certain registration rights pursuant to the
Convertible Secured Note, Option and Warrant Purchase Agreement dated
as of June 17, 1997 (which registration rights have been duly exercised
pursuant thereto) and (ii) consent of such Selling Stockholder to the
respective number of Common Shares to be sold by all of the Selling
Stockholders pursuant to this Agreement, no consent, approval or waiver
is required under any instrument or agreement to which such Selling
Stockholder is a party or by which it is bound or under which it is
entitled to any right or benefit, in connection with the offering, sale
or purchase by the Underwriters of any of the Common Shares which may
be sold by such Selling Stockholder under this Agreement or the
consummation by such Selling Stockholder of any of the other
transactions contemplated hereby.
(h) DISCLOSURE MADE BY SUCH SELLING STOCKHOLDER IN THE
PROSPECTUS. All information furnished by or on behalf of such Selling
Stockholder in writing expressly for use in the Registration Statement
and Prospectus is, and on the First Closing Date and the Second Closing
Date will be, true, correct, and complete in all material respects, and
does not, and on the First Closing Date and the Second Closing Date
will not, contain any untrue statement of a material fact or omit to
state any material fact necessary to make such information not
misleading. Such Selling Stockholder confirms as accurate the number of
shares of Common Stock set forth opposite such Selling Stockholder's
name in the Prospectus under the caption "Principal and Selling
Stockholders" (both prior to and after giving effect to the sale of the
Common Shares).
10
(i) NO PRICE STABILIZATION OR MANIPULATION. Such Selling
Stockholder has not taken and will not 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 to facilitate the sale or resale of the Common Shares.
(j) REVIEW OF COMPANY'S REPRESENTATIONS AND WARRANTIES. Such
Selling Stockholder has no reason to believe that the representations
and warranties of the Company contained in Section 1(A) of this
Agreement are not true and correct.
(k) REVIEW OF PROSPECTUS. Such Selling Stockholder is
familiar with the Registration Statement and the Prospectus and has
no knowledge of any material fact, condition or information not
disclosed in the Registration Statement or the Prospectus which has
had or may reasonably be expected to cause a Material Adverse Change
and is not prompted to sell shares of Common Stock by any information
concerning the Company which is not set forth in the Registration
Statement and the Prospectus.
Any certificate signed by or on behalf of any Selling
Stockholder and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by such Selling
Stockholder to each Underwriter as to the matters covered thereby.]
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES.
(a) THE FIRM COMMON SHARES. Upon the terms herein set forth,
(i) the Company agrees to issue and sell to the several Underwriters an
aggregate of 2,000,000 Firm Common Shares and (ii) the Selling
Stockholders agree to sell to the several Underwriters an aggregate of
730,000 Firm Common Shares, each Selling Stockholder selling the number
of Firm Common Shares set forth opposite such Selling Stockholder's
name on SCHEDULE B. On the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and not
jointly, to purchase from the Company and the Selling Stockholders the
respective number of Firm Common Shares set forth opposite their names
on SCHEDULE A. The purchase price per Firm Common Share to be paid by
the several Underwriters to the Company and the Selling Stockholders
shall be $[___] per share.
(b) THE FIRST CLOSING DATE. Delivery of certificates for the
Firm Common Shares to be purchased by the Underwriters and payment
therefor shall be made at the offices of BAS, 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx (or such other place as may be agreed to by
the Company and the Representatives) at 6:00 a.m. San Francisco time,
on [___], or such other time and date not later than 10:30 a.m. San
Francisco time, on [___] as the Representatives shall designate by
notice to the Company (the time and date of such closing are called the
"First Closing Date"). The Company and the Selling Stockholders hereby
acknowledge that circumstances under which the Representatives may
provide notice to postpone the First Closing Date as originally
scheduled include, but are in no way limited to, any determination by
the Company or the Representatives to recirculate to the public copies
of an amended or supplemented Prospectus or a delay as contemplated by
the provisions of Section 10.
(c) THE OPTIONAL COMMON SHARES; THE SECOND CLOSING DATE. In
addition, on the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Selling Stockholders hereby grant an
option to the several Underwriters to purchase, severally and not
jointly, up to an aggregate of 409,500 Optional Common Shares from the
Selling Stockholders at the purchase price per share to be paid
11
by the Underwriters for the Firm Common Shares. The option granted
hereunder is for use by the Underwriters solely in covering any
over-allotments in connection with the sale and distribution of the
Firm Common Shares. The option granted hereunder may be exercised at
any time (but not more than once) upon notice by the Representatives to
the Company and the Selling Stockholders, which notice may be given at
any time within 30 days from the date of this Agreement. Such notice
shall set forth (i) the aggregate number of Optional Common Shares as
to which the Underwriters are exercising the option, (ii) the names and
denominations in which the certificates for the Optional Common Shares
are to be registered and (iii) the time, date and place at which such
certificates will be delivered (which time and date may be simultaneous
with, but not earlier than, the First Closing Date; and in such case
the term "First Closing Date" shall refer to the time and date of
delivery of certificates for the Firm Common Shares and the Optional
Common Shares). Such time and date of delivery, if subsequent to the
First Closing Date, is called the "Second Closing Date" and shall be
determined by the Representatives and shall not be earlier than three
nor later than five full business days after delivery of such notice of
exercise. If any Optional Common Shares are to be purchased, (a) each
Underwriter agrees, severally and not jointly, to purchase the number
of Optional Common Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Optional Common Shares to be
purchased as the number of Firm Common Shares set forth on SCHEDULE A
opposite the name of such Underwriter bears to the total number of Firm
Common Shares and (b) each Selling Stockholder agrees, severally and
not jointly, to sell the number of Optional Common Shares (subject to
such adjustments to eliminate fractional shares as the Representatives
may determine) that bears the same proportion to the total number of
Optional Common Shares to be sold as the number of Optional Common
Shares set forth in SCHEDULE B opposite the name of such Selling
Stockholder bears to the total number of Optional Common Shares. The
Representatives may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to the Company
and the Selling Stockholders.
(d) PUBLIC OFFERING OF THE COMMON SHARES. The Representatives
hereby advise the Company and the Selling Stockholders that the
Underwriters intend to offer for sale to the public, as described in
the Prospectus, their respective portions of the Common Shares as soon
after this Agreement has been executed and the Registration Statement
has been declared effective as the Representatives, in their sole
judgment, determine is advisable and practicable.
(e) PAYMENT FOR THE COMMON SHARES. Payment for the Common
Shares to be sold by the Company shall be made at the First Closing
Date by wire transfer of immediately available funds to the order of
the Company. Payment for the Common Shares to be sold by the Selling
Stockholders shall be made at the First Closing Date (and, if
applicable, at the Second Closing Date) by wire transfer of immediately
available funds to the order of the Custodian.
It is understood that the Representatives have been
authorized, for their own accounts and the accounts of the several
Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Firm Common Shares and any Optional
Common Shares the Underwriters have agreed to purchase. BAS,
individually and not as a Representative of the Underwriters, may (but
shall not be obligated to) make payment for any Common Shares to be
purchased by any Underwriter whose funds shall not have been received
by the Representatives by the First Closing Date or the Second Closing
Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its
obligations under this Agreement.
Each Selling Stockholder hereby agrees that (i) it will
pay all stock transfer taxes, stamp duties and other similar taxes, if
any, payable upon the sale or delivery of the Common
12
Shares to be sold by such Selling Stockholder to the several
Underwriters, or otherwise in connection with the performance of such
Selling Stockholder's obligations hereunder and (ii) the Custodian is
authorized to deduct for such payment any such amounts from the
proceeds to such Selling Stockholder hereunder and to hold such amounts
for the account of such Selling Stockholder with the Custodian under
the Custody Agreement.
(f) DELIVERY OF THE COMMON SHARES. The Company and the Selling
Stockholders shall deliver, or cause to be delivered a credit
representing the Firm Common Shares to an account or accounts at The
Depository Trust Company as designated by the Representatives for the
accounts of the Representatives and the several Underwriters at the
First Closing Date, against the irrevocable release of a wire transfer
of immediately available funds for the amount of the purchase price
therefor. The Selling Stockholder shall also deliver, or cause to be
delivered a credit representing the Optional Common Shares to an
account or accounts at The Depository Trust Company as designated by
the Representatives for the accounts of the Representatives and the
several Underwriters, at the Second Closing Date, as the case may be,
against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor.
Notwithstanding the foregoing, to the extent the Representatives so
elect at least three full business days prior to the First Closing Date
or the Second Closing Date, as the case may be, the Company and the
Selling Stockholders shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters
certificates for the Firm Common Shares to be sold by them at the First
Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor; and the Company and the Selling Stockholders shall also
deliver, or cause to be delivered, to the Representatives for the
accounts of the several Underwriters, certificates for the Optional
Common Shares the Underwriters have agreed to purchase from them at the
First Closing Date or the Second Closing Date, as the case may be,
against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. In such
case, the certificates for the Common Shares shall be in definitive
form and registered in such names and denominations as the
Representatives shall have requested at least two full business days
prior to the First Closing Date (or the Second Closing Date, as the
case may be) and shall be made available for inspection on the business
day preceding the First Closing Date (or the Second Closing Date, as
the case may be) at a location in New York City as the Representatives
may designate.
Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the
obligations of the Underwriters.
(g) DELIVERY OF PROSPECTUS TO THE UNDERWRITERS. Not later than
12:00 p.m. on the second business day following the date the Common
Shares are first released by the Underwriters for sale to the public,
the Company shall deliver or cause to be delivered, copies of the
Prospectus in such quantities and at such places as the Representatives
shall request.
SECTION 3. ADDITIONAL COVENANTS.
A. COVENANTS OF THE COMPANY. The Company further covenants and agrees
with each Underwriter as follows:
(a) REPRESENTATIVES' REVIEW OF PROPOSED AMENDMENTS AND
SUPPLEMENTS. During such period beginning on the date hereof and ending
on the later of the First Closing Date or such date, as in the opinion
of counsel for the Underwriters, the Prospectus is no longer required
by law to be delivered in connection with sales by an Underwriter or
dealer (the "Prospectus
13
Delivery Period"), prior to amending or supplementing the Registration
Statement (including any registration statement filed under Rule 462(b)
under the Securities Act) or the Prospectus (including any amendment or
supplement through incorporation by reference of any report filed under
the Exchange Act), the Company shall furnish to the Representatives for
review a copy of each such proposed amendment or supplement, and the
Company shall not file any such proposed amendment or supplement to
which the Representatives reasonably object.
(b) SECURITIES ACT COMPLIANCE. After the date of this
Agreement, the Company shall promptly advise the Representatives in
writing (i) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, (ii) of
the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iii) of the time and date
that any post-effective amendment to the Registration Statement becomes
effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or
of any proceedings to remove, suspend or terminate from listing or
quotation the Common Stock from any securities exchange upon which it
is listed for trading or included or designated for quotation, or of
the threatening or initiation of any proceedings for any of such
purposes. If the Commission shall enter any such stop order at any
time, the Company will use its best efforts to obtain the lifting of
such order at the earliest possible moment. Additionally, the Company
agrees that it shall comply with the provisions of Rules 424(b), 430A
and 434, as applicable, under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company
under such Rule 424(b) were received in a timely manner by the
Commission.
(c) AMENDMENTS AND SUPPLEMENTS TO THE PROSPECTUS AND OTHER
SECURITIES ACT MATTERS. If, during the Prospectus Delivery Period, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if in the
opinion of the Representatives or counsel for the Underwriters it is
otherwise necessary to amend or supplement the Prospectus to comply
with law, the Company agrees promptly to discuss in good faith with the
Representatives regarding, and if they jointly decide, to prepare and
(subject to Section 3(A)(a) hereof) file with the Commission and
furnish at its own expense to the Underwriters and to dealers,
amendments or supplements to the Prospectus 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, as amended or supplemented, will
comply with law.
(d) COPIES OF ANY AMENDMENTS AND SUPPLEMENTS TO THE
PROSPECTUS. The Company agrees to furnish the Representatives, without
charge, during the Prospectus Delivery Period, as many copies of the
Prospectus and any amendments and supplements thereto (including any
documents incorporated or deemed incorporated by reference therein) as
the Representatives may reasonably request.
(e) BLUE SKY COMPLIANCE. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register
the Common Shares for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws or Canadian
provincial securities laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as
required for the distribution of the Common Shares. The Company shall
not be required
14
to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where
it is not presently qualified or where it would be subject to taxation
as a foreign corporation. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or
any such exemption relating to) the Common Shares for offering, sale or
trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of
any order suspending such qualification, registration or exemption, the
Company shall use its best efforts to obtain the withdrawal thereof at
the earliest possible moment.
(f) USE OF PROCEEDS. The Company shall apply the net proceeds
from the sale of the Common Shares sold by it in the manner described
under the caption "Use of Proceeds" in the Prospectus.
(g) TRANSFER AGENT. The Company shall engage and maintain, at
its expense, a registrar and transfer agent for the Common Stock.
(h) EARNINGS STATEMENT. As soon as practicable, the Company
will make generally available to its security holders and to the
Representatives an earnings statement (which need not be audited)
covering the twelve-month period ending on the final day of the quarter
that includes the one year anniversary of the "effective date of the
Registration Statement" (as defined in Rule 158(c) under the Securities
Act) that satisfies the provisions of Section 11(a) of the Securities
Act.
(i) PERIODIC REPORTING OBLIGATIONS. During the Prospectus
Delivery Period the Company shall file, on a timely basis, with the
Commission and the Nasdaq National Market all reports and documents
required to be filed under the Exchange Act. Additionally, the Company
shall report the use of proceeds from the issuance of the Common Shares
as may be required under Rule 463 under the Securities Act.
(j) COMPANY TO PROVIDE COPY OF THE PROSPECTUS IN FORM THAT MAY
BE DOWNLOADED FROM THE INTERNET. Upon the request of the
Representatives, the Company shall cause to be prepared and delivered,
at its expense, within one business day from the effective date of this
Agreement, to the Representatives an "electronic Prospectus" to be used
by the Underwriters in connection with the offering and sale of the
Common Shares. As used herein, the term "electronic Prospectus" means a
form of Prospectus, and any amendment or supplement thereto, that meets
each of the following conditions: (i) it shall be encoded in an
electronic format, satisfactory to BAS, that may be transmitted
electronically by BAS and the other Underwriters to offerees and
purchasers of the Common Shares for at least the Prospectus Delivery
Period; (ii) it shall disclose the same information as the paper
Prospectus and Prospectus filed pursuant to XXXXX, except to the extent
that graphic and image material cannot be disseminated electronically,
in which case such graphic and image material shall be replaced in the
electronic Prospectus with a fair and accurate narrative description or
tabular representation of such material, as appropriate; and (iii) it
shall be in or convertible into a paper format or an electronic format,
satisfactory to BAS, that will allow investors to store and have
continuously ready access to the Prospectus at any future time, without
charge to investors (other than any fee charged for subscription to the
Internet as a whole and for on-line time). The Company hereby confirms
that it has included or will include in the Prospectus filed pursuant
to XXXXX or otherwise with the Commission and in the Registration
Statement at the time it was declared effective an undertaking that,
upon receipt of a request by an investor or his or her representative
within the Prospectus Delivery Period, the Company shall transmit or
cause to be transmitted promptly, without charge, a paper copy of the
Prospectus.
15
(k) AGREEMENT NOT TO OFFER OR SELL ADDITIONAL SECURITIES.
During the period of 90 days following the date of the Prospectus, the
Company will not, without the prior written consent of BAS (which
consent may be withheld at the sole discretion of BAS), directly or
indirectly, sell, offer, contract or grant any option to sell, pledge,
transfer or establish an open "put equivalent position" within the
meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of or transfer, or announce the offering of, or file any registration
statement under the Securities Act in respect of, any shares of Common
Stock, options or warrants to acquire shares of the Common Stock or
securities exchangeable or exercisable for or convertible into shares
of Common Stock (other than as contemplated by this Agreement with
respect to the Common Shares); provided, however, that the Company may
issue shares of its Common Stock upon exercise of any option award that
is outstanding on the date hereof and that was issued under any stock
option, stock bonus or other stock plan or arrangement described in the
Prospectus.
(l) FUTURE REPORTS TO THE REPRESENTATIVES. During the period
of two years hereafter the Company will furnish to BAS at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of the
Company containing the balance sheet of the Company as of the close of
such fiscal year and statements of income, stockholders' equity and
cash flows for the year then ended and the opinion thereon of the
Company's independent public or certified public accountants; (ii) as
soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K or other report filed by the Company with
the Commission, the NASD or any securities exchange; and (iii) as soon
as available, copies of any report or communication of the Company
mailed generally to holders of its capital stock.
B. COVENANTS OF THE SELLING STOCKHOLDERS. Each Selling Stockholder
further covenants and agrees with each Underwriter:
(a) AGREEMENT NOT TO OFFER OR SELL ADDITIONAL SECURITIES. Such
Selling Stockholder will not, without the prior written consent of BAS
(which consent may be withheld in its sole discretion), directly or
indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of any shares of
Common Stock, options or warrants to acquire shares of Common Stock, or
securities exchangeable or exercisable for or convertible into shares
of Common Stock currently or hereafter owned either of record or
beneficially (as defined in Rule 13d-3 under Securities Exchange Act of
1934, as amended) by the undersigned, or publicly announce the
undersigned's intention to do any of the foregoing, for a period
commencing on the date hereof and continuing through the close of
trading on the date 90 days after the date of the Prospectus.
(b) DELIVERY OF FORMS W-8 AND W-9. To deliver to the
Representatives or the Custodian, as applicable, prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-8 (if the Selling Stockholder is a non-United States
person) or Form W-9 (if the Selling Stockholder is a United States
Person).
BAS, on behalf of the several Underwriters, may, in its sole
discretion, waive in writing the performance by the Company or any Selling
Stockholder of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION 4. PAYMENT OF EXPENSES. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of their
obligations hereunder and in connection with the
16
transactions contemplated hereby, including without limitation (i) all expenses
incident to the issuance and delivery of the Common Shares (including all
printing and engraving costs), (ii) all fees and expenses of the registrar and
transfer agent of the Common Stock, (iii) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Common Shares
to the Underwriters, (iv) all fees and expenses of the Company's counsel,
independent public or certified public accountants and other advisors, (v) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of
experts), each preliminary prospectus and the Prospectus, and all amendments and
supplements thereto, and this Agreement, (vi) all filing fees, attorneys' fees
and expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the state securities or blue sky laws or the provincial securities laws of
Canada, and, if requested by the Representatives, preparing and printing a "Blue
Sky Survey" or memorandum, and any supplements thereto, advising the
Underwriters of such qualifications, registrations and exemptions, (vii) the
filing fees incident to, and the reasonable fees and expenses of counsel for the
Underwriters in connection with, the NASD's review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares, (viii) the fees and expenses associated with including the Common Shares
on the Nasdaq National Market, and (ix) all other fees, costs and expenses
referred to in Item 14 of Part II of the Registration Statement. Except as
provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay their own expenses, including the fees and disbursements
of their counsel.
The Selling Stockholders further agree with each Underwriter
to pay (directly or by reimbursement) all fees and expenses incident to the
performance of their obligations under this Agreement which are not otherwise
specifically provided for herein, including but not limited to (i) fees and
expenses of counsel and other advisors for such Selling Stockholders, (ii) fees
and expenses of the Custodian and (iii) expenses and taxes incident to the sale
and delivery of the Common Shares to be sold by such Selling Stockholders to the
Underwriters hereunder (which taxes, if any, may be deducted by the Custodian
under the provisions of Section 2 of this Agreement).
This Section 4 shall not affect or modify any separate, valid
agreement relating to the allocation of payment of expenses between the Company,
on the one hand, and the Selling Stockholders, on the other hand.
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Stockholders set forth in Sections 1(A) and 1(B) hereof as of the
date hereof and as of the First Closing Date as though then made and, with
respect to the Optional Common Shares, as of the Second Closing Date as though
then made, to the timely performance by the Company and the Selling Stockholders
of their respective covenants and other obligations hereunder, and to each of
the following additional conditions:
(a) ACCOUNTANTS' COMFORT LETTER. On the date hereof, the
Representatives shall have received from Ernst & Young LLP, independent
public or certified public accountants for the Company, a letter dated
the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinarily included in accountant's "comfort
letters" to underwriters, delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the
audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus
(and the Representatives shall have received such additional number of
conformed
17
copies of such accountants' letter as the Representatives may
reasonably request for each of the several Underwriters).
(b) COMPLIANCE WITH REGISTRATION REQUIREMENTS; NO STOP ORDER;
NO OBJECTION FROM NASD. For the period from and after effectiveness of
this Agreement and prior to the First Closing Date and, with respect to
the Optional Common Shares, the Second Closing Date:
(i) the Company shall have filed the Prospectus with
the Commission (including the information required by Rule
430A under the Securities Act) in the manner and within the
time period required by Rule 424(b) under the Securities Act;
or the Company shall have filed a post-effective amendment to
the Registration Statement containing the information required
by such Rule 430A, and such post-effective amendment shall
have become effective; or, if the Company elected to rely upon
Rule 434 under the Securities Act and obtained the
Representatives' consent thereto, the Company shall have filed
a Term Sheet with the Commission in the manner and within the
time period required by such Rule 424(b);
(ii) no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such
purpose shall have been instituted or threatened by the
Commission; and
(iii) the NASD shall have raised no objection to the
fairness and reasonableness of the underwriting terms and
arrangements.
(c) NO MATERIAL ADVERSE CHANGE. For the period from and after
the date of this Agreement and prior to the First Closing Date and,
with respect to the Optional Common Shares, the Second Closing Date, in
the judgment of the Representatives there shall not have occurred any
Material Adverse Change.
(d) OPINION OF COUNSEL FOR THE COMPANY. On each of the First
Closing Date and the Second Closing Date the Representatives shall have
received the favorable opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation, counsel for the Company, dated as of such
Closing Date, the form of which is attached as EXHIBIT A (and the
Representatives shall have received such additional number of conformed
copies of such counsel's legal opinion as the Representatives may
reasonably request for each of the several Underwriters).
(e) OPINION OF INTELLECTUAL PROPERTY COUNSEL FOR THE COMPANY.
On each of the First Closing Date and the Second Closing Date the
Representatives shall have received the favorable opinion of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation, counsel for the
Company, as to certain intellectual property matters, dated as of such
Closing Date, the form of which is attached as EXHIBIT B (and the
Representatives shall have received such additional number of conformed
copies of such counsel's legal opinion as the Representatives may
reasonably request for each of the several Underwriters).
(f) OPINION OF FDA REGULATORY COUNSEL FOR THE COMPANY. On each
of the First Closing Date and the Second Closing Date the
Representatives shall have received the favorable opinion of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation, Food and Drug
Administration ("FDA") regulatory counsel for the Company, as to
certain regulatory matters, dated as of such Closing Date, the form of
which is attached as EXHIBIT C (and the Representatives shall have
received such additional number of conformed copies of such
18
counsel's legal opinion as the Representatives may reasonably request
for each of the several Underwriters).
(g) OPINION OF COUNSEL FOR THE UNDERWRITERS. On each of the
First Closing Date and the Second Closing Date the Representatives
shall have received the favorable opinion of O'Melveny & Xxxxx LLP,
counsel for the Underwriters, dated as of such Closing Date, in form
and substance satisfactory to the Representatives, with respect to the
sufficiency of all such corporate proceedings and other legal matters
relating to this Agreement and the transactions contemplated hereby as
the Representatives may reasonably require (and the Representatives
shall have received such additional number of conformed copies of such
counsel's legal opinion as the Representatives may reasonably request
for each of the several Underwriters). The Company shall have furnished
to such counsel such documents as they may have reasonably requested
for the purpose of enabling them to pass upon such matters.
(h) OFFICERS' CERTIFICATE. On each of the First Closing Date
and the Second Closing Date the Representatives shall have received a
written certificate executed by the Chairman of the Board, Chief
Executive Officer or President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of such
Closing Date, to the effect set forth in subsections (b)(ii) of this
Section 5, and further to the effect that:
(i) for the period from and after the date of this
Agreement and prior to such Closing Date, there has not
occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of
the Company set forth in Section 1(A) of this Agreement are
true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(iii) the Company has complied with all the agreements
hereunder and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to such Closing
Date.
(i) BRING-DOWN COMFORT LETTER. On each of the First Closing
Date and the Second Closing Date the Representatives shall have
received from Ernst & Young LLP, independent public or certified public
accountants for the Company, a letter dated such date, in form and
substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant
to subsection (a) of this Section 5, except that the specified date
referred to therein for the carrying out of procedures shall be no more
than three business days prior to the First Closing Date or Second
Closing Date, as the case may be (and the Representatives shall have
received such additional number of conformed copies of such
accountants' letter as the Representatives may reasonably request for
each of the several Underwriters).
(j) OPINIONS OF COUNSEL FOR THE SELLING STOCKHOLDERS. On each
of the First Closing Date and the Second Closing Date the
Representatives shall have received the favorable opinion or opinions
of counsel for each Selling Stockholder (which may be different counsel
for each Selling Stockholder and may be Company counsel), dated as of
such Closing Date, the form of which is attached as EXHIBIT D (and the
Representatives shall have received such additional number of conformed
copies of such counsels' legal opinions as the Representatives may
reasonably request for each of the several Underwriters).
19
(k) SELLING STOCKHOLDERS' CERTIFICATE. On each of the First
Closing Date and the Second Closing Date the Representatives shall
receive a written certificate executed by the Attorney-in-Fact of each
Selling Stockholder, dated as of such Closing Date, to the effect that:
(i) the representations, warranties and covenants of
such Selling Stockholder set forth in Section 1(B) of this
Agreement are true and correct with the same force and effect
as though expressly made by such Selling Stockholder on and as
of such Closing Date; and
(ii) such Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date.
(l) SELLING STOCKHOLDERS' DOCUMENTS. On the date hereof, the
Company and the Selling Stockholders shall have furnished for review by
the Representatives copies of the Powers of Attorney and Custody
Agreements executed by each of the Selling Stockholders and such
further information, certificates and documents as the Representatives
may reasonably request.
(m) LOCK-UP AGREEMENT FROM CERTAIN SECURITYHOLDERS OF THE
COMPANY OTHER THAN SELLING STOCKHOLDERS. On the date hereof, the
Company shall have furnished to the Representatives an agreement in the
form of EXHIBIT E hereto, or such other form as may be acceptable to
the Representatives, from each director, officer and each beneficial
owner of 5% or more of the Company's Common Stock (as defined and
determined according to Rule 13d-3 under the Exchange Act), and such
agreements shall be in full force and effect on each of the First
Closing Date and the Second Closing Date.
(n) ADDITIONAL DOCUMENTS. On or before each of the First
Closing Date and the Second Closing Date, the Representatives and
counsel for the Underwriters shall have received such information,
documents and opinions as they may reasonably require for the purposes
of enabling them to pass upon the issuance and sale of the Common
Shares as contemplated herein, or in order to evidence the accuracy of
any of the representations and warranties, or the satisfaction of any
of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied or is not waived by the Representatives,
this Agreement may be terminated by the Representatives by notice to the Company
and the Selling Stockholders at any time on or prior to the First Closing Date
and, with respect to the Optional Common Shares, at any time prior to the Second
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If this Agreement
is terminated by the Representatives pursuant to Section 5, Section 7, Section
10, Section 11 (other than Section 11(i)(y), (ii) or (iii)) or Section 17, or if
the sale to the Underwriters of the Common Shares on the First Closing Date is
not consummated because of any refusal, inability or failure on the part of the
Company or the Selling Stockholders to perform any agreement herein or to comply
with any provision hereof, the Company agrees to reimburse the Representatives
and the other Underwriters (or such Underwriters as have terminated this
Agreement with respect to themselves), severally, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the
Representatives and the Underwriters in connection with the proposed purchase
and the offering and sale of the Common Shares, including but not
20
limited to reasonable fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT. This Agreement shall not
become effective until the later of (i) the execution of this Agreement by the
parties hereto and (ii) the effectiveness of the Registration Statement under
the Securities Act.
Prior to such effectiveness, this Agreement may be terminated
by the Company or the Representatives by notice to each of the other parties
hereto, and any such termination shall be without liability on the part of (a)
the Company or the Selling Stockholders to any Underwriter, except that the
Company shall be obligated to reimburse the expenses of the Representatives and
the Underwriters pursuant to Sections 4 and 6 hereof, (b) of any Underwriter to
the Company or the Selling Stockholders, or (c) of any party hereto to any other
party except that the provisions of Section 8 and Section 9 shall at all times
be effective and shall survive such termination.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE UNDERWRITERS.
(1) The Company agrees to indemnify and hold harmless each
Underwriter, its officers and employees, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and
the Exchange Act against any loss, claim, damage, liability or expense,
as incurred, to which such Underwriter or such controlling person may
become subject, under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company),
insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i)
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule
430A or Rule 434 under the Securities Act, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) upon
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; or (iii) in whole or in part upon any inaccuracy in the
representations and warranties of the Company contained herein; or (iv)
in whole or in part upon any failure of the Company to perform its
obligations hereunder or under law; (v) or any untrue statement or
alleged untrue statement of any material fact contained in any audio or
visual materials provided by the Company or based upon written
information furnished by or on behalf of the Company including, without
limitation, slides, videos, films or tape recordings, used in
connection with the marketing of the Shares, including, without
limitation, statements communicated to securities analysts employed by
the Underwriters; or (vi) any act or failure to act or any alleged act
or failure to act by any Underwriter in connection with, or relating in
any manner to, the Common Stock or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon any matter
covered by clause (i) or (ii) above, provided that the Company shall
not be liable under this clause (vi) to the extent that a court of
competent jurisdiction shall have determined by a final judgment that
such loss, claim, damage, liability or action resulted directly from
any such acts or failures to act undertaken or omitted to be taken by
such Underwriter through its gross negligence or willful misconduct;
and to reimburse each Underwriter and each such controlling person for
any and all expenses
21
(including the fees and disbursements of counsel chosen by BAS) as such
expenses are reasonably incurred by such Underwriter or such
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action; PROVIDED, HOWEVER, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, that such
loss, claim, damage, liability or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Representatives expressly
for use in the Registration Statement, any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto); and PROVIDED,
FURTHER, that with respect to any preliminary prospectus, the foregoing
indemnity agreement shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage, liability or
expense purchased Common Shares, or any person controlling such
Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to Section 2 and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the
sale of the Common Shares to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage, liability or expense. The indemnity agreement
set forth in this Section 8(a)(1) shall be in addition to any
liabilities that the Company may otherwise have.
(2) Each of the Selling Stockholders, severally and not
jointly, agrees to to indemnify and hold harmless each Underwriter, its
officers and employees, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act and the Exchange
Act against any loss, claim, damage, liability or expense, as incurred,
to which such Underwriter or such controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such
loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule
430A or Rule 434 under the Securities Act, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) upon
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; in the case of subparagraphs (i) and (ii) of this
Section 8(a)(2) to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company or any Underwriter by such Selling
Stockholder, directly or through such Selling Stockholder's
representatives, specifically for use in the preparation thereof; or
(iii) in whole or in part upon any inaccuracy in the representations
and warranties of such Selling Stockholder contained herein; or (iv) in
whole or in part upon any failure of such Selling Stockholder to
perform its obligations hereunder or under law; or (v) any act or
failure to act or any alleged act or failure to act by any Underwriter
in connection with, or relating in any manner to, the Common Stock or
the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out
of or based upon any matter covered by clause (i) or (ii) above,
provided that the Company shall not be liable under this clause (v) to
the extent that a court of competent jurisdiction shall have determined
by a final judgment that such loss, claim, damage, liability or
22
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct; and to reimburse each Underwriter and
each such controlling person for any and all expenses (including the
fees and disbursements of counsel chosen by BAS) as such expenses are
reasonably incurred by such Underwriter or such controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
PROVIDED, HOWEVER, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, that such loss, claim, damage, liability or
expense arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company or
the Selling Stockholders by the Representatives expressly for use in
the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided,
further, that with respect to any preliminary prospectus, the foregoing
indemnity agreement shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage, liability or
expense purchased Common Shares, or any person controlling such
Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to Section 2 and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the
sale of the Common Shares to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage, liability or expense; and PROVIDED, FURTHER,
that the Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under
this Agreement, as to the respective amounts of such liability for
which they each shall be responsible. The indemnity agreement set forth
in this Section 8(a)(2) shall be in addition to any liabilities that
the Selling Stockholders may otherwise have.
(b) INDEMNIFICATION OF THE COMPANY, ITS DIRECTORS AND
OFFICERS. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signed the Registration Statement, the Selling
Stockholders and each person, if any, who controls the Company or any
Selling Stockholder within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, or any such director, officer, Selling
Stockholder or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of such Underwriter), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or
alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or arises out of or is based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein 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 the Registration Statement,
any preliminary prospectus, the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written
information furnished to the Company and the Selling Stockholders by
the Representatives expressly for use therein; and to reimburse the
Company, or any such director, officer, Selling Stockholder or
controlling person for any legal and other expense reasonably incurred
by the Company, or any such director, officer, Selling Stockholder or
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action. Each of the Company and each of the
Selling Stockholders, hereby acknowledges that the only
23
information that the Representatives or the Underwriters have furnished
to the Company and the Selling Stockholders expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) are the information set forth
in the table in the first paragraph, the information on the concession
and reallowance in the third paragraph, and the information in the
eleventh, twelfth and thirteenth paragraphs under the caption
"Underwriting" in the Prospectus; and the Underwriters confirm that
such information is correct. The indemnity agreement set forth in this
Section 8(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES.
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability hereunder to
the extent it is not materially prejudiced as a proximate result of
such failure and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with
all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between
the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party (BAS
in the case of Section 8(b) and Section 9), representing the
indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party.
(d) SETTLEMENTS. The indemnifying party under this Section 8
shall not 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, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
Section 8(c) hereof, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written
24
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by
such indemnified party, unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
SECTION 9. CONTRIBUTION. If the indemnification provided for in
Section 8 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (a) 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
Common Shares pursuant to this Agreement or (b) if the allocation provided by
clause (a) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (a)
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 or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or expenses,
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, in connection with the offering of the Common
Shares pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Common Shares
pursuant to this Agreement (before deducting expenses) received by the Company
and the Selling Stockholders, and the total underwriting discount received by
the Underwriters, in each case as set forth on the front cover page of the
Prospectus (or, if Rule 434 under the Securities Act is used, the corresponding
location on the Term Sheet) bear to the aggregate initial public offering price
of the Common Shares as set forth on such cover. 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
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by the
Company or the Selling Stockholders, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 9.
25
Notwithstanding the provisions of this Section 9, (a) no
Underwriter shall be required to contribute any amount in excess of the
underwriting commissions received by such Underwriter in connection with the
Common Shares underwritten by it and distributed to the public and (b) no
Selling Stockholder shall be required to contribute any amount in excess of the
gross proceeds received by such Selling Stockholder in connection with the
Common Shares sold by it to the Underwriters under this Agreement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(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 9 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite
their names in SCHEDULE A. For purposes of this Section 9, each officer and
employee of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act and the Exchange Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company with the meaning of the Securities
Act and the Exchange Act shall have the same rights to contribution as the
Company.
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS. If, on
the First Closing Date or the Second Closing Date, as the case may be, any one
or more of the several Underwriters shall fail or refuse to purchase Common
Shares that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportions that the number
of Firm Common Shares set forth opposite their respective names on SCHEDULE A
bears to the aggregate number of Firm Common Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the Underwriters shall fail or refuse to purchase Common Shares and the
aggregate number of Common Shares with respect to which such default occurs
exceeds 10% of the aggregate number of Common Shares to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for
the purchase of such Common Shares are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any
other party except that the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination. In
any such case either the Representatives or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be
deemed to include any person substituted for a defaulting Underwriter under this
Section 10. Any action taken under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
SECTION 11. TERMINATION OF THIS AGREEMENT. Prior to the First Closing
Date this Agreement may be terminated by the Representatives by notice given to
the Company and the Selling Stockholders if at any time (i) (x) trading or
quotation in any of the Company's securities shall have been suspended or
limited by the Commission or by the Nasdaq National Market, or (y) trading in
securities generally on either the Nasdaq Stock Market or the New York Stock
Exchange shall have been suspended or materially limited, or minimum or maximum
prices shall have been generally established on any of such stock exchanges by
the Commission or the NASD; (ii) a general banking moratorium shall have been
26
declared by any of federal, New York, Delaware or California authorities; (iii)
there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity, or any change in the United
States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States' or
international political, financial or economic conditions, as in the judgment of
the Representatives is material and adverse and makes it impracticable to market
the Common Shares in the manner and on the terms described in the Prospectus or
to enforce contracts for the sale of securities; (iv) in the reasonable judgment
of the Representatives there shall have occurred any Material Adverse Change
that makes it impractical or inadvisable to continue with the offering; or (v)
the Company shall have sustained a loss by strike, fire, flood, earthquake,
accident or other calamity of such character as in the judgment of the
Representatives may interfere materially with the conduct of the business and
operations of the Company regardless of whether or not such loss shall have been
insured. Any termination pursuant to this Section 11 shall be without liability
on the part of (a) the Company or the Selling Stockholders to any Underwriter,
except that if this Agreement is terminated pursuant to this Section 11 (other
than Sections 11(i)(y), (ii) or (iii)) the Company and the Selling Stockholders
shall be obligated to reimburse the expenses of the Representatives and the
Underwriters pursuant to Sections 4 and 6 hereof, (b) any Underwriter to the
Company or the Selling Stockholders, or (c) of any party hereto to any other
party except that the provisions of Section 8 and Section 9 shall at all times
be effective and shall survive such termination.
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholders and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
officers or directors or any controlling person, or the Selling Stockholders, as
the case may be, and will survive delivery of and payment for the Common Shares
sold hereunder and any termination of this Agreement.
SECTION 13. NOTICES. All communications hereunder shall be in writing
and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
27
and to:
O'Melveny & Xxxxx LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to the Company:
SuperGen, Inc.
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
If to the Selling Stockholders:
ChaseMellon Shareholder Services LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 14. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute Underwriters
pursuant to Section 10 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and personal representatives, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Common Shares as such from any of the
Underwriters merely by reason of such purchase.
28
SECTION 15. PARTIAL UNENFORCEABILITY. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
SECTION 16. GOVERNING LAW PROVISIONS.
(a) CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(b) CONSENT TO JURISDICTION. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America
located in the City and County of San Francisco or the courts of the
State of California in each case located in the City and County of San
Francisco (collectively, the "Specified Courts"), and each party
irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of
any such court (a "Related Judgment"), as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding.
Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process
for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such suit, action or
other proceeding brought in any such court has been brought in an
inconvenient forum.
SECTION 17. FAILURE OF ONE OR MORE OF THE SELLING STOCKHOLDERS TO SELL
AND DELIVER COMMON SHARES. If one or more of the Selling Stockholders shall fail
to sell and deliver to the Underwriters the Common Shares to be sold and
delivered by such Selling Stockholders at the First Closing Date pursuant to
this Agreement, then the Underwriters may at their option, by written notice
from the Representatives to the Company and the Selling Stockholders, either (i)
terminate this Agreement without any liability on the part of any Underwriter
or, except as provided in Sections 4, 6, 8 and 9 hereof, the Company or the
Selling Stockholders, or (ii) purchase the shares which the Company and other
Selling Stockholders have agreed to sell and deliver in accordance with the
terms hereof. If one or more of the Selling Stockholders shall fail to sell and
deliver to the Underwriters the Common Shares to be sold and delivered by such
Selling Stockholders pursuant to this Agreement at the First Closing Date or the
Second Closing Date, then the Underwriters shall have the right, by written
notice from the Representatives to the Company and the Selling Stockholders, to
postpone the First Closing Date or the Second Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
SECTION 18. GENERAL PROVISIONS. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
29
The Table of Contents and the Section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of this
Agreement.
Each of the parties hereto acknowledges that it is a
sophisticated business person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
[Signature pages follows.]
30
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company and the Custodian the
enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
SUPERGEN, INC.
By:__________________________
[Name]
[title]
TAKO VENTURES LLC
By:__________________________
ATTORNEY-IN-FACT
XXXXXX XXXXXXXXX
By:__________________________
ATTORNEY-IN-FACT
XXXXXX X. XXXXXXXXX
By:__________________________
ATTORNEY-IN-FACT
XXXXX XXXXX
By:__________________________
ATTORNEY-IN-FACT
S-1
The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representatives in San Francisco, California as of the date first above
written.
BANC OF AMERICA SECURITIES LLC
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
WARBURG DILLON READ LLC
Acting as Representatives of the
several Underwriters named in
the attached SCHEDULE A.
By: BANC OF AMERICA SECURITIES LLC
By:_______________________________
Managing Director
S-2
SCHEDULE A
UNDERWRITERS
NUMBER OF
FIRM
COMMON
SHARES TO BE
UNDERWRITERS PURCHASED
----------------------------------------------------------------------- ---------------------
Banc of America Securities LLC....................................... [____]
Xxxxxx Brothers Inc.................................................. [____]
Prudential Securities Incorporated................................... [____]
Warburg Dillon Read LLC.............................................. [____]
..................................................................... [____]
..................................................................... [____]
----------------------------------------------------------------------- ---------------------
Total....................................................... 2,730,000
=====================
Schedule A
SCHEDULE B
SELLING STOCKHOLDERS
SELLING STOCKHOLDER MAXIMUM NUMBER
NUMBER OF FIRM OF OPTIONAL
COMMON SHARES COMMON SHARES
TO BE SOLD TO BE SOLD
------------------------------------------ ------------------------- ------------------------
Tako Ventures LLC..................... 650,000 305,000
Xxxxxx Xxxxxxxxx...................... 50,000 104,500
Xxxxxx X. Xxxxxxxxx................... 20,000 0
Xxxxx Xxxxx........................... 10,000 0
------------------------------------------ ------------------------- ------------------------
Total........................ 730,000 409,500
====================================================
Schedule B
EXHIBIT A
COMPANY COUNSEL OPINION
References to the Prospectus in this EXHIBIT A include any
supplements thereto at the Closing Date.
Such counsel shall state that they have examined, among other
things, the Registration Statement and the Prospectus, which terms shall include
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1998 and each Form 10-Q, Form 8-K and any and all amendments thereto filed by
the Company subsequent to the end of such fiscal year and prior to the date of
such opinion letter, all of which are incorporated by reference in the
Registration Statement and the Prospectus (the "Incorporated Documents"), and in
their opinion:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in the State of California and in
each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions (other than the State of California) where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Change.
(vi) The authorized, issued and outstanding capital stock
of the Company (including the Common Stock) conform to the descriptions thereof
set forth or incorporated by reference in the Prospectus. All of the outstanding
shares of Common Stock (including the shares of Common Stock owned by Selling
Stockholders) have been duly authorized and validly issued, are fully paid and
nonassessable and, to the best of such counsel's knowledge, have been issued in
compliance with the registration and qualification requirements of federal and
state securities laws. The form of certificate used to evidence the Common Stock
is in due and proper form and complies with all applicable requirements of the
charter and by-laws of the Company and the General Corporation Law of the State
of Delaware. The description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted and
exercised thereunder, set forth in the Prospectus accurately and fairly presents
the information required to be shown with respect to such plans, arrangements,
options and rights.
(vii) No stockholder of the Company or any other person has
any preemptive right, right of first refusal or other similar right to subscribe
for or purchase securities of the Company being sold in the offering arising (i)
by operation of the charter or by-laws of the Company or the General Corporation
Law of the State of Delaware or (ii) to the best knowledge of such counsel,
otherwise, other than rights which have been duly waived.
(viii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company [, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as rights to
indemnification thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.]
A-1
(ix) The Common Shares to be purchased by the Underwriters
from the Company have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement and, when issued and delivered by the Company pursuant to
the Underwriting Agreement against payment of the consideration set forth
therein, will be validly issued, fully paid and nonassessable.
(x) To the best knowledge of such counsel, no stop order
suspending the effectiveness of either of the Registration Statement or (the
Rule 462(b) Registration Statement, if any), has been issued under the
Securities Act and no proceedings for such purpose have been instituted or are
pending or are contemplated or threatened by the Commission. Any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
(xi) The Registration Statement, including any Rule 462(b)
Registration Statement, the Prospectus including any document incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectus including any document incorporated by reference
therein, as of their respective effective or issue dates (other than the
financial statements and supporting schedules included or incorporated by
reference therein or in exhibits to or excluded from the Registration Statement,
as to which no opinion need be rendered) comply as to form in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act.
(xii) The Common Shares have been approved for listing on
the Nasdaq National Market.
(xiii) The statements (i) in the Prospectus under the
captions "Risk Factors--Anti-takeover provisions may prevent you from realizing
a premium return," "Description of Capital Stock", "Management's Discussion and
Analysis and Results of Operations-Liquidity" (regarding the Company's
agreements with Xxxxxx Laboratories) and (ii) in Item 14 and Item 15 of the
Registration Statement, insofar as such statements constitute matters of law,
summaries of legal matters, the Company's charter or by-law provisions,
documents or legal proceedings, or legal conclusions, has been reviewed by such
counsel and fairly present and summarize, in all material respects, the matters
referred to therein.
(xiv) To the knowledge of such counsel, there are no legal
or governmental actions, suits or proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than those
disclosed therein.
(xv) To the best knowledge of such counsel, there are no
Existing Instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto;
and the descriptions thereof and references thereto are correct in all material
respects.
(xvi) No consent, approval, authorization or other order of,
or registration or filing with, any court or other governmental authority or
agency, is required for the Company's execution, delivery and performance of the
Underwriting Agreement and consummation of the transactions contemplated thereby
and by the Prospectus, except as has been obtained and except as required under
the Securities Act, applicable state securities or blue sky laws and from the
NASD.
(xvii) The execution and delivery of the Underwriting
Agreement by the Company and the performance by the Company of its obligations
thereunder (other than performance by the Company of its obligations under the
indemnification section of the Underwriting Agreement, as to which no opinion
need be rendered) (i) have been duly authorized by all necessary corporate
action on the part of the Company; (ii) will not result in any violation of the
provisions of the charter or by-laws of the
A-2
Company or any subsidiary; (iii) will not constitute a breach of, or Default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any material
Existing Instrument known to such counsel; or (iv) to the knowledge of such
counsel, will not result in any violation of any law, administrative regulation
or administrative or court decree applicable to the Company.
(xviii) The Company is not, and after receipt of payment for
the Common Shares will not be, an "investment company" within the meaning of
Investment Company Act.
(xix) Except as disclosed in the Prospectus, to the
knowledge of such counsel, there are no persons with registration or other
similar rights to have any equity or debt securities registered for sale under
the Registration Statement or included in the offering contemplated by the
Underwriting Agreement, other than the Selling Stockholders, except for such
rights as have been duly waived.
(xx) To the knowledge of such counsel, the Company is not
in violation of its charter or by-laws or any law, administrative regulation or
administrative or court decree applicable to the Company or in Default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any material Existing Instrument, except in each such case for such
violations or Defaults as would not, individually or in the aggregate, result in
a Material Adverse Change.
In addition, such counsel shall state that the Registration
Statement (and the Rule 462(b) Registration Statement, if any), has been
declared effective by the Commission under the Securities Act.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public or certified public
accountants for the Company and with representatives of the Underwriters at
which the contents of the Registration Statement and the Prospectus, and any
supplements or amendments thereto, and related matters were discussed and,
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, nothing
has come to their attention which would lead them to believe that either the
Registration Statement or any amendments thereto, at the time the Registration
Statement or such amendments became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or at the First Closing Date or the Second Closing
Date, as the case may be, contained 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 (it being understood that such counsel need express no belief as to
the financial statements or schedules or other financial or statistical data
derived therefrom, included or incorporated by reference in the Registration
Statement or the Prospectus or any amendments or supplements thereto).
A-3
EXHIBIT B
INTELLECTUAL PROPERTY OPINION
References to the Prospectus in this EXHIBIT B include any
supplements thereto at the Closing Date.
Such counsel shall state that they act as the Company's
intellectual property counsel and in such capacity are familiar with the
technology used by the Company in its business and the manner of its use thereof
and have read the Registration Statement and the Prospectus, including
particularly the portions of the Registration Statement and the Prospectus
referring to the Company's patents, patent rights or licenses, trademarks or
trademark rights, service marks, copyrights, maskwork rights, collaborative
research, licenses or royalty arrangements or agreements, trade secrets,
know-how or proprietary techniques, including processes and substances, or other
proprietary information or materials (collectively "Intellectual Property") and
in their opinion:
(i) The statements in the Prospectus under the captions
"Risk Factors--Asserting, defending and maintaining intellectual property rights
could be difficult and costly and failure to do so will harm our ability to
compete and the results of our operations," "--The patents on the compounds for
which we are developing generic and Extra products are held by third parties. If
these patents are expanded in scope or do not expire when anticipated, our
business could suffer," and "Business--Patents and Proprietary Technology,"
insofar as such statements constitute matters of law, legal conclusions or
summaries of legal matters relating to Intellectual Property, or descriptions of
the Company's Intellectual Property, have been reviewed by such counsel and
fairly present and summarize, in all material respects, the matters referred to
therein.
(ii) Such counsel knows of no material action, suit, claim
or proceeding relating to or affecting the Intellectual Property which is
pending or threatened against the Company.
(iii) The Company is listed in the records of the United
States Patent and Trademark Office as the holder of record of the patents listed
on a schedule to such opinion (the "Patents") and each of the applications
listed on a schedule to such opinion (the "Applications"). To the knowledge of
such counsel, there are no claims of third parties to any ownership interest or
lien with respect to any of the Patents or Applications. Such counsel is not
aware of any material defect in form in the preparation or filing of the
Applications on behalf of the Company. To the knowledge of such counsel, the
Applications are being pursued by the Company. To the knowledge of such counsel,
the Company owns as its sole property the Patents and pending Applications;
(iv) The Company is listed in the records of the
appropriate foreign offices as the sole holder of record of the foreign patents
listed on a schedule to such opinion (the "Foreign Patents") and each of the
applications listed on a schedule to such opinion (the "Foreign Applications").
Such counsel knows of no claims of third parties to any ownership interest or
lien with respect to the Foreign Patents or Foreign Applications. Such counsel
is not aware of any material defect of form in the preparation or filing of the
Foreign Applications on behalf of the Company. To the knowledge of such counsel,
the Foreign Applications are being pursued by the Company. To the knowledge of
such counsel, the Company owns as its sole property the Foreign Patents and
pending Foreign Applications; and
(v) Such counsel knows of no reason why the Patents or
Foreign Patents are not valid as issued. Such counsel has no knowledge of any
reason why any patent to be issued as a result of any Application or Foreign
Application would not be valid or would not afford the Company useful patent
protection with respect thereto.
B-1
EXHIBIT C
FDA REGULATORY OPINION
References to the Prospectus in this EXHIBIT C include any
supplements thereto at the Closing Date.
Such counsel shall state that they act as the Company's Food
and Drug Administration ("FDA") counsel and in such capacity are familiar with
the Company's submissions to and relations with the FDA. Such counsel shall
further state that they have read the Registration Statement and the Prospectus,
including particularly those portions of the Registration Statement and the
Prospectus describing (a) the Company's FDA applications and the status thereof
and (b) the Federal Food, Drug, and Cosmetic Act ("FDC Act"), the Public Health
Service Act ("PHS Act") or the FDA regulations (such matters (a) and (b)
collectively, the "FDA Regulatory Matters") and in their opinion:
(i) The statements in the Prospectus under the captions
"Risk Factors--If the results of further clinical testing indicate that our
proposed products are not safe and effective for human use, our business will
suffer," "--If we fail to obtain regulatory marketing approvals in a timely
manner, our business will suffer," "--If we fail to comply with governmental
regulations, our business will suffer," "--We depend on third parties for
manufacturing and storage of our products and our business may be harmed if the
manufacture of our products is interrupted or discontinued," "Business--Products
and Products in Development" "Business--Technologies," "Business--Generic
Anticancer Drugs," "Business--New Drug Development and Approval Process" and
"Business--Manufacturing," insofar as such statements constitute legal
conclusions under the FDC Act, the PHS Act or FDA regulations or summaries of
FDA Regulatory Matters, have been reviewed by such counsel and fairly present
and summarize, in all material respects, the matters referred to therein.
(ii) Such counsel knows of no material action, suit, claim
or proceeding relating to FDA Regulatory Matters which is pending or threatened
against the Company or any of its officers or directors, nor is such counsel
aware of any material violations of the FDC Act, the PHS Act or FDA regulations
by the Company.
(iii) The Company has filed the Investigational New Drug
("IND") applications and New Drug Approval ("NDA") applications and orphan drug
designation applications with the FDA listed on SCHEDULE 1 to such letter
(collectively, the "US Applications"). The FDA has not denied any of the
Company's US Applications, other than as noted on SCHEDULE 1. Apart from such
denied US Applications, such counsel is not aware of any material defect in form
in the preparation or filing of the US Applications, other than as noted in
SCHEDULE 1. To the knowledge of such counsel, apart from such denied US
Applications, the US Applications are being diligently pursued by the Company,
other than as noted in SCHEDULE 1. To the knowledge of such counsel, the Company
is the sole owner of the US Applications, other than as noted in SCHEDULE 1.
(iv) The FDA has issued to the Company the IND approval
letters, the NDA approval letters and orphan drug designations listed on
SCHEDULE 2 to such opinion, and none of such approvals or designations has been
modified, revoked or rescinded.
(v) The Company has filed the applications with foreign
regulators listed on SCHEDULE 3 to such letter (collectively, the "Foreign
Applications"). No foreign authority has denied any of the Company's Foreign
Applications, other than as noted on SCHEDULE 3. Apart from such denied Foreign
Applications, such counsel is not aware of any material defect in form in the
preparation or filing
C-1
of the Foreign Applications, other than as noted in SCHEDULE 3. To the knowledge
of such counsel, apart from such denied Foreign Applications, the Applications
are being diligently pursued by the Company, other than as noted in SCHEDULE 3.
To the knowledge of such counsel, the Company is the sole owner of the Foreign
Applications, other than as noted in SCHEDULE 3.
(vi) The foreign authorities named in SCHEDULE 4 have issued
to the Company the approvals listed on SCHEDULE 4 to such opinion, and none of
such approvals has been modified, revoked or rescinded.
C-2
EXHIBIT D
SELLING STOCKHOLDER COUNSEL OPINION
The opinion of such counsel shall be rendered to the
Representatives at the request of the Company or the Selling Stockholder, as
applicable, and shall so state therein. References to the Prospectus in this
EXHIBIT D include any supplements thereto at the Closing Date.
(i) The Underwriting Agreement has been duly authorized,
executed and delivered by or on behalf of, and is a valid and binding agreement
of, such Selling Stockholder, enforceable in accordance with its terms, except
as rights to indemnification thereunder may be limited by applicable law and
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(ii) The execution and delivery by each Selling Stockholder
that is a limited liability company of, and the performance by such Selling
Stockholder of its obligations under, the Underwriting Agreement and its Custody
Agreement and its Power of Attorney will not contravene or conflict with, result
in a breach of, or constitute a default under, the organizational documents of
such Selling Stockholder, or, to the best of such counsel's knowledge, violate
or contravene any provision of applicable law or regulation, or violate, result
in a breach of or constitute a default under the terms of any other agreement or
instrument to which such Selling Stockholder is a party or by which it is bound,
or any judgment, order or decree applicable to such Selling Stockholder of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Stockholder.
(iii) To such counsel's knowledge, such Selling Stockholder
has good and valid title to all of the Common Shares which may be sold by such
Selling Stockholder under the Underwriting Agreement and in the case of each
Selling Stockholder that is a limited liability company has the legal right and
power, and all authorizations and approvals required under its organizational
documents to enter into the Underwriting Agreement and its Custody Agreement and
its Power of Attorney, to sell, transfer and deliver all of the Common Shares
which may sold by such Selling Stockholder under the Underwriting Agreement and
to comply with its other obligations under the Underwriting Agreement, its
Custody Agreement and its Power of Attorney.
(iv) Each of the Custody Agreement and Power of Attorney of
such Selling Stockholder has been duly authorized, executed and delivered by
such Selling Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms, except as rights to
indemnification thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(v) Assuming that the Underwriters purchase the Common
Shares which are sold by such Selling Stockholder pursuant to the Underwriting
Agreement for value, in good faith and without notice of any adverse claim, the
delivery of such Common Shares pursuant to the Underwriting Agreement will pass
good and valid title to such Common Shares, free and clear of any security
interest, mortgage, pledge, lieu encumbrance or other claim.
(vi) To such counsel's knowledge, no consent, approval,
authorization or other order of, or registration or filing with, any court or
governmental authority or agency, is required for the consummation by such
Selling Stockholder of the transactions contemplated in the Underwriting
D-1
Agreement, except as required under the Securities Act, applicable state
securities or blue sky laws, and from the NASD.
D-2
EXHIBIT E
FORM OF LOCK-UP AGREEMENT
February 18, 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
Warburg Dillon Read LLC
As Representatives of the Several Underwriters
c/o Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: SUPERGEN, INC. (THE "COMPANY")
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of
certain shares of Common Stock of the Company ("Common Stock") or securities
convertible into or exchangeable or exercisable for Common Stock. The Company
proposes to carry out a public offering of Common Stock (the "Offering") for
which you will act as the representatives of the underwriters. The undersigned
recognizes that the Offering will be of benefit to the undersigned and will
benefit the Company by, among other things, raising additional capital for its
operations. The undersigned acknowledges that you and the other underwriters are
relying on the representations and agreements of the undersigned contained in
this letter in carrying out the Offering and in entering into underwriting
arrangements with the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby
agrees that the undersigned will not, without the prior written consent of Banc
of America Securities LLC (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, or otherwise dispose of any shares of
Common Stock, options or warrants to acquire shares of Common Stock, or
securities exchangeable or exercisable for or convertible into shares of Common
Stock currently or hereafter owned either of record or beneficially (as defined
in Rule 13d-3 under Securities Exchange Act of 1934, as amended) by the
undersigned, or publicly announce the undersigned's intention to do any of the
foregoing, for a period commencing on the date hereof and continuing through the
close of trading on the date 60 days after the date of the Prospectus. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of shares
of Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock held by the undersigned except in compliance with the foregoing
restrictions.
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities Act of any
Common Stock owned either of record or beneficially by the undersigned,
including any rights to receive notice of the Offering.
This agreement is irrevocable and will be binding on the
undersigned and the respective successors, heirs, personal representatives, and
assigns of the undersigned.
E-1
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PRINTED NAME OF HOLDER
By:
-------------------------------------
SIGNATURE
---------------------------------------
PRINTED NAME OF PERSON SIGNING*
*(and indicate capacity of person signing if
signing as custodian, trustee, or on behalf of
an entity)
E-2
