EXHIBIT 1.03
CONFIDENTIAL
8th September, 1998
AGREEMENT
between
CENTAUR PHARMACEUTICALS, INC.
("COMPANY")
and
BANK X. XXXXXXXX & CO AG
("BANK X. XXXXXXXX")
The Company has entered in to a International Underwriting Agreement dated
September 8, 1998 (the "International Underwriting Agreement"), among the
Company, Bank X. Xxxxxxxx, as Global Coordinator, and the Managers named in
Schedule 1 thereto and a U.S. Underwriting Agreement dated September 8, 1998
(the "U.S. Underwriting Agreement", and together with the International
Underwriting Agreement, the "Underwriting Agreements"), among the Company, Bank
X. Xxxxxxxx, as Global Coordinator, and the U.S. Managers named in Schedule 1
thereto.
The execution and delivery of this agreement is a condition precedent to the
consummation of the transactions contemplated by the Underwriting Agreements.
This Agreement is the agreement referred to in Sections 7(a)(iv)(E) of each such
Underwriting Agreement.
1. DEFINITIONS
-----------
Capitalized terms used and not defined herein are used herein as defined in
the International Underwriting Agreement.
2. AGREEMENT
---------
The Company hereby agrees to sell and/or to arrange for one or more of its
stockholders to sell, if requested by Bank X. Xxxxxxxx, up to 1,600,000
shares of Common Stock (the "Secondary Shares"), on the following terms and
conditions:
(i) Bank X. Xxxxxxxx shall notify the Company in writing on or prior
to 10:00 a.m. (Zurich time) on March 7, 1999 (the 180/th/ day
after the date of this Agreement) if Bank X. Xxxxxxxx in good
faith expects to purchase the Secondary Shares (the "Preliminary
Notice"). Such Preliminary Notice shall contain a brief summary
of Bank X. Xxxxxxxx'x expectations as to the proposed purchasers
and type of offering for the Secondary Shares (provided that any
such offering shall not be conducted in any jurisdiction outside
the jurisdictions in which the offering pursuant to the
Underwriting Agreements was conducted without the express
written consent of the Company).
(ii) During the period after the date of delivery of the Preliminary
Notice until the closing or abandonment of such proposed
offering, the parties agree to cooperate in the preparation for
the proposed offering and sale of the Secondary Shares and agree
to promptly prepare such documents and taking such actions as are
typical for an offering of the type proposed (including, in a
U.S. registered offering, prompt preparation and filing of a
registration statement with the U.S. Securities and Exchange
Commission).
-2-
(iii) Notwithstanding the foregoing, the delivery by Bank X. Xxxxxxxx
of the Preliminary Notice shall in no way commit Bank X. Xxxxxxxx
to purchase any Secondary Shares. In connection with any such
proposed offering the Company agrees to negotiate underwriting
arrangements with Bank X. Xxxxxxxx and Bank X. Xxxxxxxx agrees to
negotiate such underwriting arrangements with the Company, in
each case on terms reasonably satisfactory to the Company and
Bank X. Xxxxxxxx (the "Secondary Underwriting Arrangements"). The
Company and Bank X. Xxxxxxxx agree that the pricing terms
described in clause (v) below and, to the extent applicable to
the proposed offering, the terms of the Underwriting Agreements
(other than the Company and stockholder lock-up and greenshoe
provisions thereof and except as otherwise provided herein),
shall be deemed satisfactory to each of them. Subject to
agreement on the terms of the Secondary Underwriting
Arrangements, qualification of any such offering and sale under
applicable securities laws and prevailing market conditions,
among other things, upon Bank. X. Xxxxxxxx'x determination in its
sole and absolute discretion to enter into the Secondary
Underwriting Arrangements, Bank X. Xxxxxxxx shall notify the
Company in writing of such intention (the "Final Notice") not
later than 240 days after the date of this agreement.
Concurrently with delivery of the Final Notice, and subject to
agreement on the terms of the Secondary Underwriting Arrangements
and qualification of any such offering and sale under applicable
securities laws the parties agree to enter into the Secondary
Underwriting Arrangements (and, in the case of the Company, the
Company will cause any selling stockholders to enter into the
Secondary Underwriting Arrangements).
(iv) Notwithstanding the foregoing, if at any time prior to execution
and delivery of the Secondary Underwriting Arrangements the
Company shall furnish Bank X. Xxxxxxxx a certificate signed by
the Chief Executive Officer or Chief Financial Officer of the
Company stating that in the good faith opinion of the Board of
Directors of the Company the proposed offering would interfere
with any material transaction then being pursued by the Company
or would otherwise have a Material Adverse Effect on the Company,
then the Company's obligation to proceed with any registration or
qualification of or to sell and/or arrange for the sale of the
Secondary Shares, may be deferred for a period not to exceed
thirty (30) days) (it being understood that the Company shall
comply with the ad hoc publicity requirements of the Swiss
Exchange to the extent applicable). The Company agrees to provide
Bank X. Xxxxxxxx with such certificate as soon as practicable
after such determination by the Board of Directors.
(v) Upon receipt of the Final Notice and subject to and on the other
terms of the Secondary Underwriting Arrangements, the Company
agrees to sell and/or to arrange for its stockholders to sell,
the Secondary Shares to Bank J.
-3-
Vontobel at a price per share equal to the Fair Market Value of
the Common Stock (but not less than the Offer Price). The Company
agrees to pay (and/or arrange for any selling stockholders to
pay) aggregate management, selling and underwriting commission
equal to the Manager's Commission for each Secondary Share
purchased from it (or any such selling stockholder). "Fair Market
Value" of the Common Stock shall be the average of the closing
prices of the Common Stock on the Swiss Exchange over the last 5
full trading days prior to the date the parties enter into a
binding agreement for the purchase and sale of the Secondary
Shares (including the date that such Fair Market Value is
determined if such determination takes place after the closing of
trading on such date).
(vi) The parties agree that, to the extent the proposed offering does
not close, each party shall be responsible for the fees, costs
and expenses of its own advisors.
3. GOVERNING LAW
-------------
This Agreement shall be governed by and construed in accordance with the
substantive law of Switzerland.
4. SUBMISSION TO JURISDICTION
--------------------------
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by Bank X. Xxxxxxxx or by any officer or
director of Bank X. Xxxxxxxx or by any person who controls, is controlled
by or is under common control with Bank X. Xxxxxxxx arising out of or based
upon this Agreement or the transactions contemplated herein shall be
brought in the competent commercial court (Handelsgericht) in Zurich,
Switzerland, (ii) waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of
any such proceeding and (iii) submits to the exclusive jurisdiction of such
court in any such suit, action or proceeding.
5. SEVERABILITY
------------
Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be unenforceable or invalid under
applicable law, such provision shall be ineffective only to the extent of
such unenforceability or invalidity and be replaced by such valid and
enforceable provision which the parties bona fide consider to match as
closely as possible the invalid or unenforceable provision, attaining the
same or a similar economic effect. The
-4-
remaining provisions of this Agreement shall under all circumstances
continue to be binding and in full force and effect.
6. MISCELLANEOUS
-------------
Any notice given by either party hereunder, shall be in writing, sent to
the other party at its principal executive office, and shall be deemed
delivered when received by such other party. This Agreement is the entire
agreement of the parties with respect to the subject matter hereof and
supersedes any other agreement related hereto. This Agreement may only be
amended in a writing signed by the parties hereto.
CENTAUR PHARMACEUTICALS, INC.
By:
------------------------------------------
Name:
Title:
BANK X. XXXXXXXX & CO AG
By:
------------------------------------------
Name:
Title:
