Exhibit 1.3
__________ Shares
TULARIK INC.
Common Stock Purchase Agreement
December ___, 1999
Pharma Vision 2000 XX
Xxxxxxxx 0
0000 Xxxxxx Xxxxxxxxxxx
Dear Sirs:
Tularik Inc., a Delaware corporation (the "Company"), confirms its
agreement to sell to Pharma Vision 2000 AG ("Pharma Vision") __________ shares
of the Company's Common Stock, par value $0.001 per share (the "Pharma Vision
Stock"). In addition, the Company proposes to grant to Pharma Vision an option
to purchase up to an additional __________ shares of its Common Stock on the
terms and for the purposes set forth in Section 2 (the "Option Stock"). The
Pharma Vision Stock and the Option Stock, if purchased, are hereinafter
collectively called the "Stock." This is to confirm the agreement concerning the
purchase of the Stock from the Company by Pharma Vision.
It is understood by all parties that the Company is concurrently entering
into an agreement, dated the date hereof (the "Underwriting Agreement"),
providing for the sale by the Company of ____ shares of Common Stock (including
the over-allotment option thereunder) (the "Firm Stock") through arrangements
with certain underwriters inside the United States (the "U.S. Underwriters"),
for whom Xxxxxx Brothers Inc., Xxxxxxxxx & Xxxxx LLC, X.X. Xxxxxx Securities
Inc. and Warburg Dillon Read LLC, are acting as lead managers. It is further
understood by all parties that the Company is concurrently entering into an
agreement dated the date hereof (the "International Underwriting Agreement")
providing for the sale by the Company of ____ shares of Common Stock (including
the over-allotment option thereunder) (the "International Stock") through
arrangements with certain underwriters outside the United States (the
"International Managers"), for whom Xxxxxx Brothers Inc., Xxxxxxxxx & Xxxxx LLC,
X.X. Xxxxxx Securities Inc. and Warburg Dillon Read LLC, are acting as lead
managers. The Firm Stock and the International Stock, are hereinafter
collectively called the "Underwriters' Stock."
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
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(a) A registration statement on Form S-1 with respect to the Stock has
(i) been prepared by the Company in conformity with the requirements of the
United States Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such registration
statement have been delivered by the Company to Pharma Vision and the
representatives (the "Representatives") of the U.S. Underwriters. As used
in this Agreement, "Effective Time" means the date and the time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective Date"
means the date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended at
the Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations in accordance with Section 5 hereof and deemed to be a part
of the registration statement as of the Effective Time pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations; and "Prospectus"
means such final prospectus, as first filed with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus or any further amendments to the Registration Statement or
Prospectus, in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
U.S. Underwriter specifically for inclusion therein.
(c) The Company and Amplicon Corp., a Delaware corporation (the
"Subsidiary"), have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the
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conduct of their respective businesses requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the business, financial condition or results of operations of the
Company, and have all power and authority necessary to own or hold their
respective properties and to conduct business as described in the
Registration Statement and Prospectus; and the Subsidiary of the Company is
not a "significant subsidiary," as such term is defined in Rule 405 of the
Rules and Regulations. The Company has no subsidiaries (as defined in
Section 15), other than the Subsidiary.
(d) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims.
(e) The unissued shares of the Stock to be issued and sold by the
Company to Pharma Vision hereunder and under the Underwriting Agreement and
the International Underwriting Agreement have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein and therein, will be duly and validly issued, fully paid
and non-assessable; and the Stock will conform to the description thereof
contained in the Prospectus.
(f) Each of this Agreement, the Underwriting Agreement and the
International Agreement have been duly authorized, executed and delivered
by the Company.
(g) The execution, delivery and performance of this Agreement, the
Underwriting Agreement and the International Underwriting Agreement by the
Company and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or the Subsidiary is a party or by which the Company or
the Subsidiary is bound or to which any of the property or assets of the
Company or the Subsidiary is subject, nor will such actions result in any
violation of the provisions of the charter or bylaws of the Company or the
Subsidiary or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or the
Subsidiary or any of their properties or assets; and except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and applicable state or foreign securities laws in
connection with the purchase and distribution of the Stock by the U.S.
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Underwriters and the International Managers, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Underwriting Agreement or the
International Underwriting Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby.
(h) There are no contracts, agreements or understandings between the
Company and any person granting such person the right (other than rights
which have been waived or satisfied), with respect to any securities of the
Company owned by such person, to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement. Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to register or include
securities pursuant to any other registration statement filed by the
Company under the Securities Act.
(i) Except as described in the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding the
date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants.
(j) Neither the Company nor the Subsidiary has sustained, since the
date of the latest audited financial statements included in the Prospectus,
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since such date,
there has not been any material change in the capital stock or long-term
debt of the Company and the Subsidiary, taken as a whole, or any material
adverse change in, or any development involving a prospective material
adverse change in the business, financial condition or results of
operations of the Company and the Subsidiary, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
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(l) Ernst & Young LLP, who have certified certain financial statements
of the Company, whose report appears in the Prospectus, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(m) The Company and the Subsidiary have good and marketable title to
all personal property owned by them, free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and the Subsidiary; and all real property and
buildings held under lease by the Company and the Subsidiary are held by
them under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and the Subsidiary.
(n) The Company and the Subsidiary carry, or are covered by, insurance
in such amounts and covering such risks as is adequate for the conduct of
their respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in similar
industries.
(o) The Company owns or possesses adequate licenses or other rights to
use all patents, patent applications, inventions, trademarks, trade names,
applications for registration of trademarks, service marks, service xxxx
applications, copyrights, know-how, manufacturing processes, formulae,
trade secrets, licenses and rights in any thereof and any other intangible
property and assets (herein called the "Proprietary Rights") necessary to
conduct its business in the manner described in the Prospectus, except
where the failure to so own or possess such Proprietary Rights would not,
singularly or in the aggregate, have a material adverse effect on the
financial position, stockholders' equity, results of operations, business
or prospects of the Company. The Company takes security measures to provide
adequate trade secret protection in its non-patented technology. Except as
disclosed in the Prospectus, the Company has not received any notice of
infringement or conflict with asserted rights of others with respect to any
Proprietary Rights which could result in any material adverse effect on the
Company, and except as specifically identified and described in the
Prospectus, no action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the knowledge of the
Company, threatened, which involves any Proprietary Rights. Except as
disclosed in the Prospectus, the Proprietary Rights of the Company referred
to in the Prospectus do not, to the knowledge of the Company, infringe or
conflict with any right or valid and enforceable patent of any third party,
or any discovery, invention, product or process which is the subject of a
patent application filed by any third party, known to the Company which
could have a material adverse effect on the Company. The Company is not
subject to any judgment, order, writ, injunction or decree of any court or
any Federal, state, local, foreign or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
or any
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arbitrator, nor, except as described in the Prospectus, has it entered into
or is a party to any contract which restricts or impairs the use of any
such Proprietary Rights in a manner which would have a material adverse
effect on the use of any of the Proprietary Rights. The Company has
complied, in all material respects, with its respective contractual
obligations relating to the protection of the Proprietary Rights used
pursuant to licenses. To the knowledge of the Company, no person is
infringing on or violating the Proprietary Rights owned or used by the
Company.
(p) There are no legal or governmental proceedings pending to which
the Company or the Subsidiary is a party or of which any property or assets
of the Company or the Subsidiary is the subject which, if determined
adversely to the Company or the Subsidiary, are reasonably likely to have a
material adverse effect on the financial position, stockholders' equity,
results of operations, business or prospects of the Company and the
Subsidiary, taken as a whole, and to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(q) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(r) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus which is not so described.
(s) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent which would reasonably be
expected to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and the Subsidiary, taken as a whole.
(t) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability
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that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(u) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or the Subsidiary which has had (nor does the
Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or the Subsidiary, would reasonably be expected to
have) a material adverse effect on the financial position, stockholders'
equity, results of operations, business or prospects of the Company and the
Subsidiary, taken as a whole.
(v) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(w) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(x) Neither the Company nor the Subsidiary (i) is in violation of its
charter or bylaws, (ii) is in default in any material respect, and no event
has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business.
(y) Neither the Company nor the Subsidiary, nor any director or
officer associated with or acting on behalf of the Company or the
Subsidiary, has used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment
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to any foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(z) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or the
Subsidiary (or, to the knowledge of the Company, any of their predecessors
in interest) at, upon or from any of the property now or previously owned
or leased by the Company or the Subsidiary in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and the Subsidiary, taken as a whole; there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the
Company or the Subsidiary or with respect to which the Company or the
Subsidiary have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the general affairs,
management, financial position or results of operations of the Company and
the Subsidiary, taken as a whole; and the terms "hazardous wastes," "toxic
wastes," "hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state and federal laws or
regulations with respect to environmental protection.
(aa) Neither the Company nor the Subsidiary is an "investment company"
within the meaning of such term under the United States Investment Company
Act of 1940, as amended, and the rules and regulations of the Commission
thereunder.
(bb) The Company has reviewed, and is continuing to review, its
operations and products to evaluate the extent to which the business or
operations of the Company or the Subsidiary will be affected by the Year
2000 Problem (that is, any significant risk that computer hardware or
software applications used by the Company or the Subsidiary will not in the
case of dates or time periods occurring after December 31, 1999, function
at least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000); as a result of such review, (i) the Company has
no reason to believe, and does not believe, that (A) there are any issues
related to the Company's or the Subsidiary's preparedness to address the
Year
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2000 Problem that are of a character required to be described or referred to
in the Registration Statement or Prospectus which have not been accurately
described in the Registration Statement or Prospectus and (B) the Year 2000
Problem will have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of the
Company and the Subsidiary, taken as a whole, or result in any material loss
or interference with the business or operations of the Company or the
Subsidiary, taken as a whole; and (ii) to the Company's knowledge, the
suppliers, vendors, customers or other material third parties used or served
by the Company or the Subsidiary are addressing or will address the Year 2000
Problem in a timely manner, except to the extent that a failure to address the
Year 2000 Problem by any supplier, vendor, customer or material third party
would not have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of the
Company and the Subsidiary, taken as a whole.
2. Purchase of the Stock by the Pharma Vision. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell __________ shares of
the Pharma Vision Stock to Pharma Vision, and Pharma Vision agrees to purchase
that number of shares of the Pharma Vision Stock. In addition, the Company
grants to Pharma Vision an option to purchase up to __________ shares of Option
Stock. Such option is exercisable as provided in Section 4 hereof. The price of
both the Pharma Vision Stock and any Option Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Stock to be purchased on such Delivery Date as
provided herein.
3. [Omitted.]
4. Delivery of and Payment for the Stock. Delivery of and payment for the
Pharma Vision Stock shall be made at the office of Xxxxxx Godward LLP, Five Palo
Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 10:00 A.M., New
York City time, on the [fourth] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between Pharma Vision and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company shall deliver or cause to be delivered certificates representing the
Pharma Vision Stock to Pharma Vision against payment to or upon the order of the
Company of the purchase price by wire transfer in immediately available funds.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of Pharma
Vision hereunder. Upon delivery, the Pharma Vision Stock shall be registered in
Pharma Vision's name and in such denominations as Pharma Vision shall request in
writing not less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the certificates for
the Pharma Vision Stock, the Company shall make the certificates representing
the Pharma Vision Stock available for inspection by Pharma Vision in New York,
New York, not later than 2:00 P.M., New York City time, on the business day
prior to the First Delivery Date.
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The option granted in Section 2 shall expire 30 days after the date of this
Agreement and may be exercised in whole or in part from time to time by written
notice being given to the Company by Pharma Vision. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by Pharma Vision, when the shares of Option Stock
are to be delivered; provided, however, that this date and time shall not be
earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as a "Second Delivery Date" and the First Delivery Date and any
Second Delivery Date are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representatives
and the Company) at 10:00 A.M., New York City time, on such Second Delivery
Date. On such Second Delivery Date, the Company shall deliver or cause to be
delivered the certificates representing the Option Stock to Pharma Vision
against payment to or upon the order of the Company of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of Pharma Vision hereunder. Upon delivery, the
Option Stock shall be registered in Pharma Vision's name and in such
denominations as Pharma Vision shall request in the aforesaid written notice.
For the purpose of expediting the checking and packaging of the certificates for
the Option Stock, the Company shall make the certificates representing the
Option Stock available for inspection by Pharma Vision in New York, New York,
not later than 2:00 P.M., New York City time, on the business day prior to such
Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
and Pharma Vision with copies thereof; to advise Pharma Vision,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in
any
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jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to Pharma Vision a signed copy of the
Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to Pharma Vision such number of the
following documents as Pharma Vision shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case including
exhibits other than this Agreement and the computation of per share
earnings) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of a
prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify
Pharma Vision and, upon its request, to file such amended or
supplemental prospectus and to prepare and furnish without charge to
Pharma Vision as many copies as Pharma Vision may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company, be required by
the Securities Act or requested by the Commission;
(e) [Omitted.]
(f) As soon as practicable after the Effective Date, to make
generally available and deliver to Pharma Vision an earnings statement
of the Company and the Subsidiary (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158); and
(g) [Omitted.]
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(h) [Omitted.]
(i) [Omitted.]
(j) Prior to the Effective Date, to apply for the inclusion of
the Stock on the National Market System and to use its best efforts to
complete that listing, subject only to official notice of issuance and
evidence of satisfactory distribution, prior to the First Delivery
Date; and
(k) To take such steps as shall be necessary to ensure that
neither the Company nor the Subsidiary shall become an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement, the
Underwriting Agreement, the Agreement Between U.S. Underwriters and
International Managers, and the Supplemental Agreement Among U.S. Underwriters
and any other related documents in connection with the offering, purchase, sale
and delivery of the Stock; (e) the costs of distributing the terms of agreement
relating to the organization of the domestic underwriting syndicate and selling
group to the members thereof by mail, telex or other means of communication; (f)
the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale of the Stock; (g)
any applicable listing or other fees; (h) the fees and expenses of qualifying
the Stock under the securities laws of the several jurisdictions as provided in
Section 5 and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the U.S. Underwriters); and
(i) all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement.
7. Conditions of Pharma Vision's Obligations. The obligations of Pharma
Vision hereunder are subject to the accuracy, when made and on each Delivery
Date, of the representations and warranties of the Company contained herein, to
the performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the
12
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b) No U.S. Underwriter or International Manager shall have
discovered and disclosed to the Company on or prior to such Delivery
Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains any untrue statement of a
fact which, in the opinion of Xxxxxx & Xxxxxxx, counsel for the U.S.
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
International Underwriting Agreement, the Stock, the Registration
Statement and the Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
U.S. Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(d) Xxxxxx Godward LLP shall have furnished to Pharma Vision
its written opinion, as counsel to the Company, addressed to Pharma
Vision and dated such Delivery Date, in form and substance reasonably
satisfactory to Pharma Vision, to the effect that:
(i) The Company and the Subsidiary have been duly
incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, and to our knowledge, are duly qualified to do
business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
business, financial condition or results of operations of the
Company, and have all corporate power and authority necessary
to own or hold their respective properties and conduct the
businesses in which they are engaged; and to such counsel's
knowledge, other than the Subsidiary, the Company has no
subsidiaries;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock
being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in
the Prospectus; and all of the issued shares of capital stock
of the Subsidiary have been duly and validly authorized and
issued and are fully paid, non-
13
assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to the
Company's Amended and Restated Certificate of Incorporation
(the "Charter"), the Company's bylaws, any agreement filed as
an exhibit to the Registration Statement and Prospectus or, to
such counsel's knowledge, any other agreement to which the
Company is a party;
(iv) To such counsel's knowledge, there are no legal or
governmental proceedings pending or overtly threatened to which
the Company or the Subsidiary is a party or of which any
property or assets of the Company or the Subsidiary is the
subject which are required to be described in the Prospectus by
the Securities Act or the Rules and Regulations;
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations as of the date specified in such opinion and, to
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to such counsel's knowledge, no proceeding for that
purpose is pending or threatened by the Commission;
(vi) The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the
Company prior to such Delivery Date (other than the financial
statements, financial data and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(vii) To such counsel's knowledge, there are no contracts
or other documents that are required to be described in the
Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations that have
not been described or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by
the Rules and Regulations;
(viii) This Agreement, the Underwriting Agreement and the
International Underwriting Agreement have each been duly
authorized, executed and delivered by the Company;
14
(ix) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement, the Underwriting Agreement and the International
Underwriting Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement
material to the Company's business as described in the
Registration Statement and Prospectus, or other instrument
known to such counsel to which the Company or the Subsidiary is
a party or by which the Company or the Subsidiary is bound or
to which any of the property or assets of the Company or the
Subsidiary is subject, nor will such actions result in any
violation of the provisions of the charter or bylaws of the
Company or the Subsidiary or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or the
Subsidiary or any of their properties or assets (except the
securities or Blue Sky laws of the various U.S. states and the
rules of the NASD governing underwriting compensation, as to
which we express no opinion); and, except for the registration
of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act, applicable state
securities laws and the rules of the NASD governing
underwriting compensation, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Underwriting
Agreement or the International Underwriting Agreement by the
Company and the consummation of the transactions contemplated
hereby;
(x) The Company is not an "investment company" within
the meaning of such term under the United States Investment
Company Act of 1940, as amended and the rules and regulations
of the Commission thereunder;
(xi) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and
any person granting such person the right (other than rights
which have been waived or satisfied) to require the Company to
include securities in the securities registered pursuant to the
Registration Statement. To such counsel's knowledge, except as
described in the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting
such person the right to require the Company to register or
include securities pursuant to any other registration statement
filed by the Company under the Securities Act.
15
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States
of America, the laws of the State of California and the General
Corporation Law of the State of Delaware and that such counsel is not
admitted in the State of Delaware. Such counsel shall also have
furnished to Pharma Vision a written statement, addressed to Pharma
Vision and dated such Delivery Date, in form and substance
satisfactory to Pharma Vision, to the effect that:
"In connection with the preparation of the Registration Statement, we
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 U.S. Underwriters. We have not independently
verified and accordingly are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
(other than the statements made in the Prospectus under the captions
"Description of Capital Stock" and "Shares Eligible for Future Sale,"
insofar as such statements relate to the Stock and concern legal
matters), and any supplements or amendments thereto. On the basis of
the foregoing and in our capacity as counsel to the Company, nothing
has come to our attention which has caused us to believe that either
the Registration Statement or any amendments thereto (except as to the
financial statements and schedules, and other financial data and
statistical data derived therefrom), 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 (except as to the
financial statements and schedules, and other financial data and
statistical data derived therefrom), as of its date or as of the date
hereof contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances in which they were made, not
misleading."
(e) [OMITTED]
16
(f) [Omitted.]
(g) [Omitted.]
(h) [Omitted.]
(i) The Company shall have furnished to Pharma Vision a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its Chief Financial Officer
stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 7(a) and 7(j)
have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
17
(j) (i) Neither the Company nor the Subsidiary shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or
the Subsidiary or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and the Subsidiary, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of
the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of the
several U.S. Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) The National Market System shall have approved the Stock for
inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(m) The closing under the International Underwriting Agreement
shall have occurred concurrently with the closing hereunder on the
First Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the U.S. Underwriters.
18
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless Pharma Vision, its
officers and employees and each person, if any, who controls Pharma Vision
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Pharma Vision officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by Pharma Vision in
connection with, or relating in any manner to, the 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 matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction 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 Pharma Vision through its gross negligence
or willful misconduct), and shall reimburse Pharma Vision and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by Pharma Vision, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with information concerning
Pharma Vision furnished to the Company through Pharma Vision specifically for
inclusion therein.
(b) Pharma Vision shall indemnify and hold harmless the Company, its
officers and employees, each of its directors, and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with
19
written information concerning Pharma Vision furnished to the Company through
Pharma Vision specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which Pharma Vision may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and Pharma Vision on the other from the offering of the Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred
20
to in clause (i) above but also the relative fault of the Company on the one
hand and Pharma Vision on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and Pharma Vision on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or Pharma Vision, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
Pharma Vision agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. 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.
9. Default by the Company. If, on either Delivery Date, the Company
defaults in the performance of its obligations under this Agreement, then this
Agreement shall terminate without any liability on the part of Pharma Vision.
Nothing contained herein shall relieve the Company of any liability it may have
to the Company for damages caused by its default.
10. Termination. The obligations of Pharma Vision hereunder may be
terminated by Pharma Vision by notice given to and received by the Company prior
to delivery of and payment for the Stock if, prior to that time, any of the
events described in Sections 7(j) or 7(k), shall have occurred or if the U.S.
Underwriters and International Managers shall decline to purchase the Stock for
any reason permitted under this Agreement.
11. [Omitted.]
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to Pharma Vision, shall be delivered or sent by mail, telex or
facsimile transmission to Pharma Vision 2000 AG, Spielhof 3, 8750 Glaris
Switzerland, Attention: Xxxxx Xxxxxxxxx, with a copy to Xxxxx Xxxxxxx,
Esq.;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxxxxx X. Xxxxxxx, General Counsel
(Fax: 650/000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
21
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon Pharma Vision, the Company, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties and
agreements of the Company and Pharma Vision contained in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Stock and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company and
Pharma Vision, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
TULARIK INC.
By _____________________________________________
Xxxxxxx X. Xxxxxxx
Vice President, General Counsel and Secretary
Accepted:
22
PHARMA VISION 2000 AG
By:_____________________________
Print Name:_____________________
Title:__________________________
23
