EXHIBIT 1.1
BioMarin Pharmaceutical Inc.
6,000,000 Shares
Common Stock
($0.001 par value)
UNDERWRITING AGREEMENT
________ __, 2001
UNDERWRITING AGREEMENT
________ __, 2001
UBS Warburg LLC
CIBC World Markets Corp.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the several Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
BioMarin Pharmaceutical Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of 6,000,000 shares of Common
Stock, $0.001 par value per share (the "Common Stock"), of the Company (the
"Firm Shares"). In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to purchase from
the Company up to an additional 900,000 shares of Common Stock (the "Additional
Shares"). The Firm Shares and the Additional Shares are hereinafter collectively
sometimes referred to as the Shares. The Shares are described in the Prospectus
which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-73136)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each so furnished being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the "Registration Statement," and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after
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the date hereof (or such earlier time as may be required under the Act) or, if
no such filing is required, the form of final prospectus included in the
Registration Statement at the time it became effective, is herein called the
"Prospectus." Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the
documents incorporated by reference therein pursuant to Form S-3 (the
"Incorporated Documents") and (ii) the copy of the Registration Statement,
Preliminary Prospectus or Prospectus or Incorporated Documents filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX"). Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the "Exchange Act") after the
effective date of the Registration Statement, or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the respective
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A annexed hereto, in each case at a purchase price of $____ per Share.
The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters
the option to purchase, and upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company all or a
portion of the Additional Shares solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters for the Firm
Shares. This option may be exercised by you on behalf of the several
Underwriters at any time and from time to time on or before the 30th day
following the date hereof by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the "additional time
of purchase"); PROVIDED, HOWEVER, that the additional time of purchase (which
may be the time of purchase)
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shall not be earlier than the time of purchase (as defined below) nor earlier
than the second business day1 after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine solely to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on _________ __, 2001 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof) at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The time at which such payment and delivery are
actually made is hereinafter called the "time of purchase." Certificates for the
Firm Shares shall be delivered to you in definitive form in such names and in
such denominations as you shall specify on the second business day preceding the
time of purchase. For the purpose of expediting the checking of the certificates
for the Firm Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day preceding the
time of purchase.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the Company
agrees to make such certificates available to you for such purpose at least one
full business day preceding the additional time of purchase.
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(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has not received nor has notice of any order of the
Commission preventing or suspending the use of any Preliminary Prospectus,
or instituting proceedings for that purpose, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act; and when the Registration
Statement becomes effective, the Registration Statement and the Prospectus
will conform in all material respects with the provisions of the Act, and
the Registration Statement 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 statements therein not misleading, and
the Prospectus 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 statements therein, in light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that the Company makes
no representation or warranty with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus; and
neither the Company nor any of its affiliates has distributed any
offering material in connection with the offer or sale of the Shares
other than the Registration Statement, the Preliminary Prospectus, the
Prospectus or any other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company's capitalization
is as set forth under the heading entitled "Actual" in the section of the
Registration Statement and the Prospectus entitled "Capitalization" and,
as of the time of purchase and the additional time of purchase, as the
case may be, the Company's capitalization shall be as set forth under the
heading entitled "As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization" (subject, in each
case, to the issuance of shares of Common Stock upon exercise of stock
options and warrants disclosed as outstanding in the Registration
Statement and the Prospectus or stock options thereafter granted under the
Company's stock option plans disclosed in the Registration Statement and
the Prospectus); all of the issued and outstanding shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable, have been issued in compliance with all
federal and state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right;
(c) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with the
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requisite corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify as of
the date hereof could not reasonably be expected to have a material
adverse effect on the business, operations, prospects, properties,
condition (financial or otherwise) or results of operation of the Company
and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect"). The Company has no subsidiaries (as defined in
the Act) other than as listed in Schedule B annexed hereto (the
"Subsidiaries"); except as described in the Registration Statement and the
Prospectus, the Company owns 100% of the outstanding capital stock of the
Subsidiaries; except for the Subsidiaries or as described in the
Registration Statement and the Prospectus, the Company does not own,
directly or indirectly, any long-term debt or any equity interest in any
firm, corporation, partnership, joint venture, association or other
entity; complete and correct copies of the certificates or articles of
incorporation and of the bylaws of the Company and each of the corporate
Subsidiaries and the operating agreements of each limited liability
company Subsidiary and all amendments thereto have been delivered to you;
each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate or limited
liability company, as the case may be, power and authority to own, lease
and operate its properties and to conduct its business; each of the
Subsidiaries is duly qualified to do business as a foreign corporation or
limited liability company and is in good standing in each jurisdiction
where the ownership or leasing of the properties or the conduct of its
business requires such qualification, except where the failure to so
qualify could not reasonably be expected to have a Material Adverse
Effect; all of the outstanding shares of capital stock or limited
liability company interests, as the case may be, of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive right,
right of first refusal or similar right;
(e) neither the Company nor any of the Subsidiaries is in breach or
violation of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would result in any breach or violation of,
or constitute a default under) (each such breach, violation, default or
event, a "Default Event"), (i) its charter, by-laws or other
organizational documents, (ii) any obligation, agreement, covenant or
condition contained in any license, permit, indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or
any lease, contract or
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other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
properties is bound or affected, (iii) any federal, state, local or
foreign law, regulation or rule or (iv) any decree, judgment or order
applicable to the Company, any of the Subsidiaries or any of their
respective properties, other than, in the case of clauses (ii) and
(iii), such Default Events as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and the execution, delivery and performance of this Agreement,
including the issuance and sale of the Shares and the consummation of
the other transactions contemplated hereby, does not constitute and
will not result in a Default Event under (w) any provisions of the
charter, by-laws or other organizational documents of the Company or
any of the Subsidiaries, (x) under any provision of any license,
permit, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries or by which any of them or their respective properties may
be bound or affected, (y) under any federal, state, local or foreign
law, regulation or rule or (z) under any decree, judgment or order
applicable to the Company, any of the Subsidiaries or any of their
respective properties, except, in the case of clause (x) for such
Default Events as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company;
(g) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus;
(h) the Shares have been duly and validly authorized by the Company
and, when issued and delivered by the Company against payment therefor as
provided herein, will be validly issued, fully paid and non-assessable;
(i) no approval, authorization, consent or order of or filing with
any national, state, local or other governmental or regulatory commission,
board, body, authority or agency is required to be obtained or made by the
Company or any of the Subsidiaries in connection with the issuance and
sale of the Shares or the consummation by the Company of the other
transactions contemplated hereby other than registration of the offer and
sale of the Shares under the Act, which has been or will be effected, any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters and the approvals required to be obtained after the date
hereof with respect to the listing of the Shares on the Swiss SWX New
Market ("SWX");
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(j) except as set forth in the Registration Statement and the
Prospectus (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, (ii) no
person has any preemptive rights, resale rights, rights of first refusal
or other rights to purchase any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, and (iii) no
person has the right to act as an underwriter, or as a financial advisor
to the Company, in connection with the offer and sale of the Shares, in
the case of each of the foregoing clauses (i), (ii) and (iii), whether as
a result of the filing or effectiveness of the Registration Statement or
the sale of the Shares as contemplated thereby or otherwise; no person has
the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby,
except for such rights as have been complied with or waived;
(k) Xxxxxx Xxxxxxxx LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is filed with the
Commission as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Act;
(l) except as disclosed in the Registration Statement and
Prospectus, and except for the approvals required to be obtained after the
date hereof with respect to the listing of the Shares on the SWX, the
Company and each of the Subsidiaries has all necessary licenses, permits,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule (collectively, "Permits"), and has obtained all necessary
authorizations, consents and approvals from other persons (collectively,
"Approvals"), in order to conduct its business as described in the
Registration Statement and the Prospectus, other than such Permits and
Approvals the failure of which to obtain could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries is in violation of, or in
default under, any such Permit or Approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries the effect of which
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(m) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or any document incorporated by reference
therein or to be filed as an exhibit to the
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Registration Statement or any document incorporated by reference therein
have been so described or filed as required;
(n) except as disclosed in the Registration Statement and the
Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or threatened to which the Company or any of the
Subsidiaries or any of their respective directors or officers is a party
or of which any of their respective properties is subject at law or in
equity, or before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency which, if
adversely decided, could reasonably be expected to result in a judgment,
decree or order having a Material Adverse Effect or prevent consummation
of the transactions contemplated hereby;
(o) the financial statements, together with the related schedules
and notes, included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the
periods specified and have been prepared in compliance with the
requirements of the Act and in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved; any pro forma financial statements or data included in the
Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X of the Act, and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements; the other financial and statistical data set forth in the
Registration Statement and the Prospectus are accurately presented and
prepared on a basis consistent with such financial statements and books
and records of the Company; and there are no financial statements
(historical or pro forma) that are required to be included in the
Registration Statement and the Prospectus that are not included as
required;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development that could reasonably
be expected to have a prospective material adverse change, in the
business, operations, properties, condition (financial or otherwise) or
results of operations of the Company and the Subsidiaries taken as a
whole, (ii) any transaction which is material to the Company or any of the
Subsidiaries taken as a whole, (iii) any obligation, direct or contingent,
which is material to the Company and the Subsidiaries taken as a whole,
incurred by the Company or any of the Subsidiaries, (iv) any change in the
capital stock or outstanding indebtedness of the Company or any of the
Subsidiaries (other than pursuant to the exercise of stock options or
warrants described in the Registration Statement and the Prospectus as
outstanding or the grant of stock options under stock option plans
8
described in the Registration Statement and the Prospectus) that is
material to the Company and its Subsidiaries, taken as a whole or (v) any
dividend or distribution of any kind declared, paid or made on the capital
stock of the Company; neither the Company nor any of the Subsidiaries has
any material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus;
(q) the Company has obtained for the benefit of the Underwriters the
agreements (a "Lock-Up Agreement"), in the form set forth as EXHIBIT C-1
hereto, of each of its officers and directors and, in the form set forth
as EXHIBIT C-2 hereto, of Glyko Biomedical Ltd. ("Glyko"); the Company
will not release or purport to release any of its officers or directors
from any Lock-Up Agreement without the prior written consent of UBS
Warburg;
(r) the Company is not and, immediately after giving effect to the
offering and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(s) any statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
(t) neither the Company nor any of the Subsidiaries nor any of their
respective officers, directors and controlled affiliates or, to the
Company's knowledge, other affiliates has taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(u) the Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act, and none of such documents, when they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and/or the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, as applicable, and, (i)
with regard to the Registration Statement, will not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein not misleading and, (ii) with regard to the
Prospectus, will not contain an untrue statement
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of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(v) the Company and each of the Subsidiaries maintain insurance of
the types and in amounts reasonable in light of their respective
businesses and the cost and availability of such insurance, including, but
not limited to, insurance covering real and personal property owned or
leased by the Company and each of the Subsidiaries against theft, damage,
destruction, acts of vandalism and other risks customarily insured
against, all of which insurance is in full force and effect;
(w) neither the Company nor any of the Subsidiaries has sustained
since the date of the latest financial statements included in the
Prospectus any losses or interferences 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 Registration
Statement and the Prospectus or other than any losses or interferences
which could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;
(x) the Company and each of the Subsidiaries have good title to all
personal property owned by them as described in the Registration Statement
and the Prospectus, free and clear of all liens, encumbrances and defects
except such as are described in the Registration Statement and the
Prospectus or such as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; except as
described in the Registration Statement and the Prospectus, any real
property and buildings held under lease by the Company or any of the
Subsidiaries are held by it 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
or any of the Subsidiaries, as the case may be;
(y) neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which could, individually or in
the aggregate, reasonably be expected to result in a Material Adverse
Effect;
(z) the Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii)
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transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(aa) all tax returns required to be filed by the Company and each of
the Subsidiaries have been filed, other than those filings being contested
in good faith, and all taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such returns
or pursuant to any assessment received by the Company or any of the
Subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided;
(bb) other than as set forth in the Registration Statement and the
Prospectus, or as would not individually or in the aggregate have a
Material Adverse Effect, the Company and the Subsidiaries own, possess,
license or have other rights to use, all patents, trademarks,
servicemarks, trade names, copyrights, trade secrets, information,
proprietary rights and processes ("Intellectual Property") necessary for
the conduct of their business as described in the Registration Statement
and the Prospectus and necessary in connection with the commercialization
of the existing products of the Company and the Subsidiaries and the
products described in the Prospectus as being under development, without
any conflict with or infringement of the rights of others, and the Company
and the Subsidiaries have taken all reasonable steps necessary to secure
interests in such Intellectual Property; except as described in the
Registration Statement and the Prospectus, the Company is not aware of any
options, licenses or agreements of any kind relating to the Intellectual
Property of the Company or the Subsidiaries that are outstanding and which
are required to be described in the Registration Statement and the
Prospectus, and, except as described in the Registration Statement and the
Prospectus, neither the Company nor either of the Subsidiaries is a party
to or bound by any options, licenses or agreements with respect to the
Intellectual Property of any other person or entity which are required to
be described in the Registration Statement and the Prospectus; none of the
technology employed by the Company and the Subsidiaries has been obtained
or is used or proposed to be used by the Company or the Subsidiaries in
violation of any contractual obligation binding on the Company or the
Subsidiaries or, to the Company's knowledge, any of their respective
directors, executive officers or employees or otherwise in violation of
the rights of any persons, other than any violation which would not
individually or in the aggregate have a Material Adverse Effect; except as
described in the Registration Statement and the Prospectus, to the
Company's knowledge neither the Company nor any of the Subsidiaries has
violated, infringed or conflicted with, or, by conducting its
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business as described in the Registration Statement and the Prospectus and
commercializing the products under development described therein, would
violate, infringe or conflict with any of the Intellectual Property of any
other person or entity other than any such violation, infringement or
conflict which would not individually or in the aggregate have a Material
Adverse Effect; and
(cc) The clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Company or any Subsidiary
or in which the Company, any Subsidiary or its products or product
candidates have participated that are described in the Prospectus or the
results of which are referred to in the Prospectus were and, if still
pending, are being conducted in accordance with accepted medical and
scientific research procedures; the descriptions in the Prospectus of the
results of such studies and tests are accurate in all material respects
and fairly present the data derived from such studies and tests (in the
case of each study and test performed by outside third parties, with
reference to the information regarding such studies and tests provided to
the Company by such third parties), and the Company and each Subsidiary
has no knowledge of any other studies or tests the results of which are
inconsistent with or otherwise call into question the results described or
referred to in the Prospectus; except to the extent disclosed in the
Registration Statement and the Prospectus, the Company and each Subsidiary
has operated and currently is in compliance in all material respects with
all applicable rules, regulations and policies of the U.S. Food and Drug
Administration and comparable drug regulatory agencies outside of the
United States applicable to the Company (collectively, the "REGULATORY
AUTHORITIES"); and except to the extent disclosed in the Registration
Statement and the Prospectus, the Company has not received any notices or
other correspondence from the Regulatory Authorities or any other
governmental agency requiring the termination, suspension or modification
of any pending clinical or pre-clinical studies or tests that are
described in the Prospectus or the results of which are referred to in the
Prospectus.
4. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; PROVIDED that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such state (except service of process
with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect
to the suspension of the qualification of the
12
Shares for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto after
the effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act; in case any Underwriter
is required to deliver a prospectus after the nine-month period referred
to in Section 10(a)(3) of the Act in connection with the sale of the
Shares, the Company will prepare promptly upon request such amendment or
amendments to the Registration Statement and such prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3)
of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which, if Rule
430A is used, the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, confirming such advice in writing (if
requested by you), of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice of institution
of proceedings for, or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission should
enter a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting or
removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or Prospectus
and to file no such amendment or supplement to which you shall object in
writing, except as required pursuant to legal or administrative order or
process;
(e) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(f) to furnish to you and, upon request, to each of the other
Underwriters for a period of two years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its stockholders, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms, as may be designated by the Commission,
13
and (iii) copies of documents or reports filed with any national
securities exchange on which any class of securities of the Company is
listed;
(g) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which
would require the making of any change in the Prospectus then being used
so that the Prospectus would not include an untrue statement of material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(h) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement
(as defined in Rule 158(c) of the Act) and ending not later than 15 months
thereafter;
(i) to furnish to you five conformed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto) and sufficient additional
conformed copies (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(j) to furnish to you as early as reasonably practicable prior to
the time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements, if
any, of the Company and the Subsidiaries which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(e) hereof;
(k) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of proceeds" in the Prospectus;
(l) to pay all costs, expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the registration, issue, sale and delivery of the Shares, (iii) the
printing of this Agreement, any Agreement Among Underwriters, any dealer
14
agreements, any Powers of Attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing
of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and the
determination of their eligibility for investment under state law as
aforesaid (including associated filing fees and the reasonable legal fees
and disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys
to the Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the
Nasdaq National Market ("NASDAQ") and the SWX and any registration thereof
under the Exchange Act, (vi) review of the public offering of the Shares
by NASD Regulation, Inc. (including associated filing fees and the
reasonable legal fees and disbursements of counsel for the Underwriters),
(vii) the costs and expenses of the Company relating to presentations or
meetings undertaken in connection with the marketing of the offer and sale
of the Shares to prospective investors and the Representatives' sales
forces, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations,
travel, lodging and other expenses incurred by the officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show and (viii) the performance of the other
obligations of the Company hereunder;
(m) for so long as the delivery of the Prospectus is required in
connection with the offer or sale of the Shares, to furnish to you, before
filing with the Commission, a copy of any document proposed to be filed
pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(n) to not take, directly or indirectly, any action designed to or
which may constitute or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares; and
(o) not to sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or other
rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or file or cause to be
declared effective a registration statement under the Act relating to the
offer and sale of any shares of Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock or other rights to
purchase Common Stock or any other securities of the Company that are
substantially similar to Common Stock, for a
15
period of 90 days after the date hereof (the "LOCK-UP PERIOD"), without
the prior written consent of UBS Warburg, except for (i) the registration
of the Shares and the sales to the Underwriters pursuant to this
Agreement, (ii) issuances of Common Stock upon the exercise of options or
warrants disclosed as outstanding in the Registration Statement and the
Prospectus, (iii) the issuance of employee stock options not exercisable
during the Lock-up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, (iv) the registration of the
offer and sale of 814,647 shares of Common Stock issued in connection with
the Company's acquisition of the pharmaceutical assets of IBEX
Technologies, Inc., IBEX Pharmaceuticals, Inc., IBEX Technologies, LLC,
IBEX Technologies Corp. and IBEX Technologies R&D Inc. and (v) the
registration of the offer and sale of shares of Common Stock owned by
Glyko (the "Glyko Shares") pursuant to the exercise of rights granted
under the Amended and Restated Registration Rights Agreement, dated April
1999, among the Company, Glyko and certain stockholders of the Company;
PROVIDED that, the Company shall not consent to any demand for, or to the
exercise of any right with respect to, the registration of the Glyko
Shares for a period of 45 days after the date hereof.
(p) To prepare and file all applications with the SWX and make every
effort in order to cause the Shares to be listed on the SWX as soon after
the date hereof as is reasonably possible.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the last paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
agrees, in addition to paying the amounts described in Section 4(l) hereof, to
reimburse the Underwriters for all of their out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred in connection
with this Agreement and in furtherance of the transactions contemplated hereby.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) You shall have received, at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of
16
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters:
17
(b) You shall have received, at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of
_____________, Canadian counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters:
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Howrey
Xxxxx Xxxxxx & White, LLP, patent counsel to the Company, dated the time
of purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters:
18
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxx,
Xxxxxx & XxXxxxxx, P.C., regulatory counsel for the Company, dated the
time of purchase or the additional time of purchase, as the case may be,
with reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to the Underwriters:
(e) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of purchase
or the additional time of purchase, as the case may be, with respect to
the issuance and sale of the Shares by the Company, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriters may require.
(f) You shall have received from Xxxxxx Xxxxxxxx LLP letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced
19
copies for each of the Underwriters) in the forms heretofore approved
Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters.
(g) No amendment or supplement to the Registration Statement or
Prospectus, or document which upon filing with the Commission would be
incorporated by reference therein, shall at any time have been filed to
which you have objected in writing.
(h) The Registration Statement shall have become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) under the Act, at or before 5:00
P.M., New York City time, on the date of this Agreement, unless a later
time (but not later than 5:00 P.M., New York City time, on the second full
business day after the date of this Agreement) shall be agreed to by the
Company and you in writing or by telephone, confirmed in writing;
PROVIDED, HOWEVER, that the Company and you and any group of Underwriters,
including you, who have agreed hereunder to purchase in the aggregate at
least 50% of the Firm Shares may from time to time agree on a later date.
(i) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(j) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material and adverse change or any development reasonably likely to result
in a prospective material and adverse change (other than as specifically
described in the Registration Statement and Prospectus), in the business,
properties, condition (financial or otherwise) or results of operations of
the Company and the Subsidiaries, taken as a whole, shall occur or become
known and (ii) no transaction which could reasonably be expected to be
material and adverse to the Company shall have been entered into by the
Company or any of the Subsidiaries.
(k) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate signed by two
of the
20
Company's executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of each such date, that the Company has performed such of its
obligations under this Agreement as are to be performed at or before the
time of purchase and at or before the additional time of purchase, as the
case may be, and the conditions set forth in paragraphs (i) and (j) of
this Section 6 have been met.
(l) You shall have received the letters referred to in Section 3(q).
(m) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and
the additional time of purchase, as the case may be, as you may reasonably
request.
(n) [The Company shall have filed an application with the SWX for
listing of the Shares on the SWX.]
(o) The Shares shall have been approved for listing for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, (i) if, since the time of execution
of this Agreement or the respective dates as of which information is given in
the Registration Statement and Prospectus, there has been any material adverse
change, financial or otherwise (other than as specifically described in the
Registration Statement and Prospectus), in the operations, business, condition
or prospects of the Company and the Subsidiaries taken as a whole, which would,
in your judgment or in the judgment of such group of Underwriters, make it
impracticable to market the Shares or (ii) if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or NASDAQ shall have been
suspended or limitations or minimum prices shall have been established on the
New York Stock Exchange, the American Stock Exchange or NASDAQ, or if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or if the United States shall have declared war in accordance
with its constitutional processes or there shall have
21
occurred any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such group of Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified promptly by letter or telegram from such terminating
Underwriter.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(1), 5 and 9 hereof), and the Underwriters
shall be under no obligation or liability to the Company under this Agreement
(except to the extent provided in Section 9 hereof) or to one another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6 and
7, if any Underwriter shall default in its obligation to purchase and pay for
the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to purchase and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
purchase and pay for (in addition to the aggregate number of Firm Shares they
are obligated to purchase pursuant to Section 1 hereof) the number of Firm
Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be purchased and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be purchased and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a
22
period not exceeding five business days in order that any necessary changes in
the Registration Statement and Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of Shares
which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five business day period stated above for the purchase of all the Shares which
the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability
on the part of the Company to any non-defaulting Underwriter and without any
liability on the part of any non-defaulting Underwriter to the Company. Nothing
in this paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact (A) contained in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment thereof by
the Company) or arises out of or is based upon any omission or alleged omission
to state a material fact required to be stated in the Registration Statement or
necessary to make the statements therein not misleading, (B) contained in a
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
such Prospectus or necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading and in the case of
both clauses (A) and (B), except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter through or
by you to the Company expressly for use with reference to such Underwriter in
such Registration Statement or such
23
Prospectus or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to be stated
in such Registration Statement or such Prospectus or necessary to make such
information not misleading, or (ii) any untrue statement or alleged untrue
statement made by the Company in Section 3 of this Agreement or the failure by
the Company to perform when and as required any agreement or covenant contained
herein or (iii) any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials provided by the Company or
otherwise in strict conformity with written information furnished by or on
behalf of the Company, including, without limitation, slides, videos, films,
tape recordings, used in connection with the marketing of the Shares, PROVIDED
HOWEVER, that the indemnity agreement contained in clause (i) of this subsection
(a) with respect to any Preliminary Prospectus or amended Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such loss, damage, expense, liability or claim purchased the Shares which is
the subject thereof if the Prospectus corrected any such alleged untrue
statement or omission and if such Underwriter failed to send or give a copy of
the Prospectus to such person at or prior to the written confirmation of the
sale of such Shares to such person, unless the failure is the result of
noncompliance by the Company with Section 4(b) hereof.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any other person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Company in writing of the
institution of such Proceeding and the Company shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; PROVIDED, HOWEVER, that
the omission to so notify the Company shall not relieve the Company from any
liability which the Company may have to any Underwriter or any such person or
otherwise, except to the extent materially prejudiced by such omission. Such
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable
24
for any settlement of any Proceeding effected without the written consent of the
Company, but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such person from
and against any loss or liability by reason of such settlement. 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 the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without the Company's written consent if (i) such settlement
is entered into more than 60 business days after receipt by the indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and the successors and assigns of all of the foregoing persons from
and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Company or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or such Prospectus or necessary to make
such information not misleading.
If any Proceeding is brought against the Company or any such person
in respect of which indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; PROVIDED, HOWEVER, that the omission to so
notify
25
such Underwriter shall not relieve such Underwriter from any liability which
such Underwriter may have to the Company or any such person or otherwise. The
Company or such person shall have the right to employ their or its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by such Underwriter in connection with the
defense of such Proceeding or such Underwriter shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of such settlement.
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 the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or
26
claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the total underwriting discounts and commissions received by
the Underwriters, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters 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, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any Proceeding.
(d) The Company 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 that does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, in no case shall any Underwriter be required
to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 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 in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each
27
partner, officer or director of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its directors or officers or any person who controls
any of the foregoing within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Company and each Underwriter agree
promptly to notify each other of the commencement of any Proceeding against it
and against any of the officers or directors of the Company in connection with
the issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department; and if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 000 Xxx
Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx, 00000, Attention: Xxxxxxx
X. Xxxxxxxx, Chief Financial Officer and Chief Operating Officer.
11. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the fifth, sixth, seventh and eighth paragraphs under
the caption "Underwriting" in the Prospectus constitute the only information
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 3 and 9 hereof.
12. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and you and the
Company consent to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against an Underwriter or any
indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way
28
arising out of or relating to this Agreement. The Company agrees that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding thereupon, and may be enforced in any
other courts in the jurisdiction to which the Company is or may be subject, by
suit upon such judgment.
14. PARTIES AT INTEREST. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company and, to the
extent provided in Section 9 hereof, the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. COUNTERPARTS. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. MISCELLANEOUS. UBS Warburg LLC, one of the Underwriters, has
informed the Company as follows:
(a) UBS Warburg LLC, an indirect, wholly-owned subsidiary of UBS AG,
is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS Warburg LLC. Because UBS Warburg LLC is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS Warburg
LLC are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
(b) A lending affiliate of UBS Warburg LLC may have lending
relationships with issuers of securities underwritten or privately placed by UBS
Warburg LLC. To the extent required under the securities laws, prospectuses and
other disclosure documents for securities underwritten or privately placed by
UBS Warburg LLC will disclose the existence of any such lending relationships
and whether the proceeds of the issue will be used to repay debts owed to
affiliates of UBS Warburg LLC.
29
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the several Underwriters.
Very truly yours,
BIOMARIN PHARMACEUTICAL INC.
By:
--------------------------------
Name:
Title:
Accepted and agreed to as of the date
first above written:
UBS WARBURG LLC
CIBC WORLD MARKETS CORP.
U.S. BANCORP XXXXX XXXXXXX INC.
As Representatives of the several Underwriters
By: UBS WARBURG LLC
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
30
SCHEDULE A
UNDERWRITER NUMBER OF FIRM SHARES
UBS Warburg LLC........................................
CIBC World Markets Corp................................
U.S. Bancorp Xxxxx Xxxxxxx Inc.........................
________________
Total............................................. 6,000,000
================
1
SCHEDULE B
Name Jurisdiction of Incorporation
---- -----------------------------
Glyko, Inc. Delaware
Glyko, Inc. California
BioMarin Genetics, Inc. Delaware
BioMarin/Genzyme LLC Delaware
BioMarin Enzyme, Inc. Delaware
BioMarin Pharmaceutical Nova Scotia Company Nova Scotia, Canada
1
EXHIBIT C
