Exhibit 1.1
______________ Shares
PHYTERA, INC.
Common Stock
EUROPEAN UNDERWRITING AGREEMENT
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January __, 0000
XX XXXXX INTERNATIONAL X.X.
XXXXXXXX BANK A/S
BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL LTD.
As Representatives of the several European Managers
c/o XX XXXXX SECURITIES INTERNATIONAL L.P.
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Dear Sirs:
1. Introductory. Phytera, Inc., a Delaware corporation (the "Company"),
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proposes to sell, pursuant to the terms of this Agreement, to the several
European Managers named in Schedule A hereto (the "European Managers," or,
each, a "European Manager"), an aggregate of ________ shares of Common
Stock, $0.01 par value (the "Common Stock"), of the Company. The aggregate
of _________ shares so proposed to be sold is hereinafter referred to as
the "European Firm Stock". The Company also proposes to sell to the
European Managers, upon the terms and conditions set forth in Section 3
hereof, up to an additional _________ shares of Common Stock (the "European
Optional Stock") solely to cover over-allotments in connection with the
sale of the European Firm Stock. The European Firm Stock and the European
Optional Stock are hereinafter collectively referred to as the "European
Stock." XX Xxxxx International L.P., Carnegie Bank A/S and Banc Boston
Xxxxxxxxx Xxxxxxxx International Ltd. are acting as representatives of the
several European Managers and in such capacity are hereinafter referred to
as the "European Representatives."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Underwriting Agreement")
providing for the sale to the several underwriters named in Schedule B
hereto (the "U.S. Underwriters," or, each, a "U.S. Underwriter"), of an
aggregate of ___________ shares of Common Stock of the Company. The
aggregate of __________ shares so proposed to be sold is hereinafter
referred to as the "U.S. Firm Stock." The Company also proposes to sell to
the U.S. Underwriters, upon the terms and conditions set forth in Section 3
thereof, up to an additional _______ shares of Common Stock (the "U.S.
Optional Stock"). The U.S. Firm Stock and the U.S. Optional Stock are
hereinafter collectively referred to as the "U.S. Stock." XX Xxxxx
Securities Corporation ("XX Xxxxx"), Carnegie Inc. and BancBoston Xxxxxxxxx
Xxxxxxxx Inc. are acting as representatives of the several U.S.
Underwriters and in such capacity are hereinafter referred to as the "U.S.
Representatives." The respective closings under this Agreement and the
U.S. Underwriting Agreement are hereby expressly made conditional upon one
another.
The European Managers and the U.S. Underwriters are hereinafter
collectively referred to as the "Underwriters" and the European Stock and
the U.S. Stock are hereinafter collectively referred to as the "Stock."
The Company understands that the European Managers and the U.S.
Underwriters will concurrently enter into an Intersyndicate Agreement of
even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the
direction of XX Xxxxx (in such capacity, the "Global Coordinator") and
that, pursuant thereto and subject to the conditions set forth therein, the
European Managers may purchase from the U.S. Underwriters a portion of the
U.S. Stock and the U.S. Underwriters may purchase from the European
Managers a portion of the European Stock. The Company understands that any
purchases and sales between the European Managers and the U.S. Underwriters
shall be governed by the Intersyndicate Agreement and shall not be governed
by the terms of this Agreement or the European Underwriting Agreement.
The Company understands that the European Managers propose to make a public
offering of the European Stock as soon as the European Representatives deem
advisable after this Agreement has been executed and delivered.
2. Representations and Warranties of the Company. The Company represents and
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warrants to, and agrees with, the several European Managers that:
(a) A registration statement on Form S-1 (File No. 333-________) in
the form in which it became or becomes effective and also in such form
as it may be when any post-effective amendment thereto shall become
effective with respect to the Stock, including any pre-effective
prospectuses included as part of the registration statement as
originally filed or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424 under the United States Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, copies of which have
heretofore been delivered to you, has been carefully prepared by the
Company in conformity with the requirements of the Securities Act and
has been filed with the Commission under the Securities Act.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed
and must be declared effective before the offering of the Stock may
commence, the term "Registration Statement" as used in this Agreement
means the registration statement as amended by said post-effective
amendment. The term "Registration Statement" as used in this Agreement
shall also include any registration statement relating to the Stock
that is filed and declared effective pursuant to Rule 462(b) under the
Securities Act. The term "Prospectus" as used in this Agreement means
each prospectus in the form included in the Registration Statement,
or, (A) if the prospectuses included in the Registration Statement
omit information in reliance on Rule 430A under the Securities Act and
such information is included in the prospectuses filed with the
Commission pursuant to Rule 424(b) under the Securities Act, the term
"Prospectus" as used in this Agreement means each prospectus in the
form included in the Registration Statement as supplemented by the
addition of the Rule 430A information contained in the prospectus
filed with the Commission pursuant to Rule 424(b) and (B) if
prospectuses that meet the requirements of Section 10(a) of the
Securities Act are delivered pursuant to Rule 434 under the Securities
Act, then (i) the term "Prospectus" as used in this Agreement means
each "prospectus subject to completion" (as such term is defined in
Rule 434(g) under the Securities Act) as supplemented by (a) the
addition of Rule 430A information or other information contained in a
form of prospectus delivered pursuant to Rule 434(b)(2) under the
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Securities Act or (b) the information contained in the term sheets
described in Rule 434(b)(3) under the Securities Act, and (ii) the
date of such prospectuses shall be deemed to be the date of the
prospectuses delivered pursuant to Rule 434(b)(2) or the date of the
term sheets.
Two or more forms of Pre-effective Prospectuses (as defined below) and
two forms of Prospectus are to be used in connection with the offering
and sale of the Stock: one or more Pre-effective Prospectuses and a
Prospectus relating to the European Stock (each, a "Form of European
Prospectus") and one or more Pre-effective Prospectuses and a
Prospectus relating to the U.S. Stock (each, a "Form of U.S.
Prospectus"). The Form of European Prospectus is identical to the
Form of U.S. Prospectus, except for the front cover and back cover
pages. The final Form of European Prospectus and the final Form of
U.S. Prospectus, in the forms first furnished to the Underwriters for
use in connection with the offering of the Stock are hereinafter
referred to as the "European Prospectus" and the "U.S. Prospectus,"
respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "European Prospectus" and the "U.S. Prospectus"
shall refer to the preliminary European Prospectus dated ________ __,
1998 and preliminary U.S. Prospectus dated ________ __, 1998,
respectively, each together with the applicable terms sheet described
in Rule 434(b)(3) under the Securities Act, and all references in this
Agreement to the date of such Prospectuses shall mean the date of the
applicable term sheet. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the
European Prospectus, the U.S. Prospectus or any term sheet or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
References to the Prospectuses shall not be deemed to be references to
the prospectus prepared in the Danish language. The Danish language
prospectus, in preliminary and final form, and as amended or
supplemented, shall be collectively referred to as the "Danish
Prospectus." The European Prospectus shall be delivered by the
European Managers to all purchasers of the European Stock. To the
extent, if any, that the content of the Danish Prospectus does not
conform to the European Prospectus, the European Prospectus shall
prevail.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus (including the
Form of European Prospectus and Form of U.S. Prospectus) or the
Prospectuses (or other references of like import) shall be deemed to
mean and include all such financial statements (together with the
notes thereto) and schedules and other information which is
incorporated by reference in the Registration Statement, any
preliminary prospectus (including the Form of European Prospectus and
Form of U.S. Prospectus) or the Prospectuses, as the case may be.
The terms "Pre-effective Prospectus" and "preliminary prospectus" as
used in this Agreement mean each prospectus subject to completion in
the forms included in the Registration Statement at the time of the
initial filing of the Registration Statement with the Commission, and
as each such prospectus shall have been amended from time to time
prior to the date of the Prospectuses.
The Company has not and will not directly or indirectly bid for,
purchase, or attempt to induce any person to bid for or purchase,
Common Stock during the applicable restricted period under Section
242.102 of Regulation M under the Securities Act.
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In addition, the Company has caused copies of the European Prospectus
to be filed with the Market Authority of the European Association of
Securities Dealers Automated Quotation market for financial
instruments ("EASDAQ"), the Banking and Finance Commission (the "CBF")
of the Kingdom of Belgium and the Copenhagen Stock Exchange (the
"CSE").
(b) None of the Commission, the EASDAQ Market Authority, the CBF nor
the CSE has issued or threatened to issue any order preventing or
suspending the use of any Pre-effective Prospectus, and, at its date
of issue, each Pre-effective Prospectus conformed in all material
respects with the requirements of the Securities Act and the Rules and
Regulations, and each Pre-effective European Prospectus conformed in
all material respects with the requirements of the CSE, the CBF and
EASDAQ, and each Pre-effective Prospectus did not include any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
and, when the Registration Statement is effective under the rules of
the Commission and at all times subsequent thereto up to and including
each of the Closing Dates (as hereinafter defined), the Registration
Statement and the Prospectuses and any amendments or supplements
thereto contained and will contain all material statements and
information required to be included therein by the Securities Act and
the Rules and Regulations, and conformed and will conform to the
requirements of the Securities Act and the Rules and Regulations, and
the European Prospectus and any supplement thereto contained all
material statements and information required to be included therein by
the CSE, the CBF and EASDAQ and conformed and will conform to the
requirements of the CSE, CBF and EASDAQ, and neither of the
Prospectuses, nor any supplement thereto, includes or will include any
untrue statement of a material fact or omits or will omit to state any
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 foregoing
representations, warranties and agreements shall not apply to
information contained in or omitted from the Registration Statement or
any Pre-effective Prospectuses or the Prospectuses or any such
amendment or supplement thereto in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of
any European Manager, directly or through any European Representative,
specifically for use in the preparation thereof; there is no
franchise, lease, contract, agreement, instrument or other document or
law, rule, regulation, order, judgment, decree or legal or
governmental proceeding required to be described in the Registration
Statement or Prospectuses or to be filed as an exhibit to the
Registration Statement which is not described or filed therein as
required; and all descriptions of any such franchises, leases,
contracts, agreements, instruments or other documents or law, rule,
regulation, order, judgment, decree or legal or governmental
proceeding contained in the Registration Statement are accurate and
complete descriptions of such documents in all material respects.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectuses, and except as
set forth or contemplated in the Prospectuses or otherwise in the
ordinary course of business since such dates, neither the Company nor
any of the Subsidiaries (as defined below) has incurred any
liabilities or obligations, direct or contingent, nor entered into any
transactions not in the ordinary course of business, and there has not
been any material adverse change in the condition (financial or
otherwise), properties, business, management, prospects, net worth or
results of operations of the Company and the Subsidiaries considered
as a whole, or any change in the capital stock, short-term or long-
term debt of the Company and the Subsidiaries considered as a whole.
The Company and its subsidiaries have no material contingent
obligations which are not disclosed in the Company's consolidated
financial statements included in the Prospectuses.
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(d) The financial statements, together with the related notes and
schedules, set forth in the Prospectuses and elsewhere in the
Registration Statement fairly present, on the basis stated in the
Registration Statement, the financial position and the results of
operations and cash flows and changes in financial position of the
Company and its consolidated subsidiaries at the respective dates or
for the respective periods therein specified. Such statements and
related notes and schedules have been prepared in accordance with
United States generally accepted accounting principles applied on a
consistent basis except as may be set forth in the Prospectuses, and
all adjustments necessary for a fair presentation of results for such
periods have been made. The selected financial and statistical data
set forth in the Prospectuses under the captions "Prospectus
Summary -- Summary Financial Data," "Capitalization," "Dilution,"
"Selected Financial Information," "Management's Discussion and
Analysis of Financial Condition and Results of Operations,"
"Management Executive Compensation," "Certain Transactions,"
"Principal Stockholders" and "Shares Eligible for Future Sale" fairly
present, on the basis stated in the Registration Statement and the
Prospectuses, the information set forth therein and such data has been
compiled on a basis consistent with the financial statements presented
therein and the books and records of the Company.
(e) Xxxxxx Xxxxxxxx LLP, who have expressed their opinions on the
audited financial statements and related schedules included in the
Registration Statement and the Prospectuses, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(f) Each of the Company and the Subsidiaries has been duly organized
and is validly existing and in good standing as a corporation under
the laws of its respective jurisdiction of organization, with power
and authority (corporate and other) to own or lease its properties and
to conduct its businesses as described in the Prospectuses; each of
the Company and the Subsidiaries are in possession of and operating in
compliance with all material franchises, grants, authorizations,
approvals, registrations, qualifications, licenses, permits,
easements, consents, certificates and orders required for the conduct
of its business, all of which are valid and in full force and effect;
and each of the Company and the Subsidiaries is duly qualified to do
business and in good standing as a foreign corporation in all other
jurisdictions where its ownership or leasing of properties or the
conduct of its businesses requires such qualification. Each of the
Company and the Subsidiaries has all requisite power and authority,
and all necessary material consents, approvals, authorizations,
orders, registrations, qualifications, licenses, certificates and
permits of and from all public regulatory or governmental agencies and
bodies to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectuses, and no such consent, approval,
authorization, order, registration, qualification, license or permit
contains a materially burdensome restriction not adequately disclosed
in the Registration Statement and the Prospectuses. The Company owns
or controls, directly or indirectly, only the following corporations,
associations or other entities (each, a "Subsidiary" and collectively,
the Subsidiaries"):
(1) Phytera A/S;
(2) Phytera Limited; and
(3) Phytera Symbion ApS.
All outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued, and are fully paid and non-
assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of any liens,
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encumbrances, equities or claims, and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into or exchange any obligations for
shares of capital stock or ownership interests in any Subsidiary are
outstanding.
(g) The Company's authorized capital stock is on the date hereof, and
will be on the Closing Dates, as set forth under the heading
"Capitalization" in the Prospectuses; the Company's outstanding
capital stock was, as of the date set forth in the Prospectuses, the
amount so set forth; the outstanding shares of Common Stock (including
the outstanding shares of the Stock) of the Company conform to the
description thereof in the Prospectuses and have been duly authorized
and validly issued and are fully paid and non-assessable and have been
issued in compliance with all federal and applicable state securities
laws and were not issued in violation of or subject to any preemptive
rights or similar rights to subscribe for or purchase securities and
conform to the description thereof contained in the Prospectuses. Any
and all certificates representing the Stock are in due and proper form
and comply with all legal requirements and requirements of the
Company's Certificate of Incorporation, By-laws and other
organizational documents. Except as disclosed in and or contemplated
by the Prospectuses and the financial statements of the Company and
related notes thereto included in the Prospectuses, the Company does
not have outstanding any options, warrants, preemptive or other rights
to purchase or subscribe for shares of its capital stock or any
securities or obligations convertible or exchangeable into its shares
of capital stock, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, securities or
obligations, except for those granted subsequent to the date of
information provided in the Prospectuses pursuant to the Company's
employee and stock option plans as disclosed in the Prospectuses. The
description of the Company's stock option and other stock plans or
arrangements, and the options or other rights granted or exercised
thereunder, as set forth in the Prospectuses, accurately and fairly
presents the information required to be shown with respect to such
plans, arrangements, options and rights.
(h) The European Stock to be issued and sold by the Company to the
European Managers hereunder and the U.S. Stock to be issued and sold
by the Company to the U.S. Underwriters under the U.S. Underwriting
Agreement has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable and free of any
preemptive or similar rights and will conform to the description
thereof in the Prospectuses.
(i) Except as set forth in the Prospectuses, there are no legal or
governmental proceedings pending to which the Company or any of the
Subsidiaries is a party or of which any property of the Company or any
Subsidiary is the subject, which, if determined adversely to the
Company or any such Subsidiary, might individually or in the aggregate
(i) prevent or adversely affect the transactions contemplated by this
Agreement, (ii) suspend the effectiveness of the Registration
Statement, (iii) prevent or suspend the use of the Pre-effective
Prospectuses in any jurisdiction or (iv) result in a material adverse
change in the condition (financial or otherwise), properties,
business, business prospects, net worth or results of operations of
the Company and its subsidiaries considered as a whole and to the best
of the Company's knowledge there is no valid basis for any such legal
or governmental proceeding; and to the best of the Company's knowledge
no such proceedings are threatened or contemplated against the Company
or any Subsidiary by any governmental authority or any other person.
The Company is not a party nor subject to the provisions of any
material injunction, judgment, decree or order of any court,
regulatory body or other governmental agency or body. The description
of the Company's litigation and legal proceedings under the heading
"Business -- Legal
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Proceedings" in the Prospectuses is true and correct and complies with
the Rules and Regulations and the rules and regulations of the CSE,
the CBF and EASDAQ.
(j) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute
a summary of the terms of the capital stock, or under the captions
"Management," "Certain Transactions," "Principal Stockholders" and
"Shares Eligible for Future Sale," insofar as they purport to describe
facts or the provisions of the documents referred to therein, are
accurate and complete in all material respects.
(k) The execution, delivery and performance of this Agreement and the
U.S. Underwriting Agreement and the consummation of the transactions
herein and therein contemplated (A) will not conflict with or result
in a breach or any violation of any of the terms or provisions of the
Certificate of Incorporation, By-laws or other organizational
documents of the Company or any of the Subsidiaries, or any law,
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any
of their respective properties or assets, (B) 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 any of the Subsidiaries is a party or by which it or any of
its or their respective properties or assets is or may be bound, and
(C) do not and will not result in the creation of a lien against any
such property.
(l) None of the Company or any of the Subsidiaries is, or with notice
or lapse of time or both will be, in violation of or in default under
its Certificate of Incorporation or By-laws or other organizational
documents or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, note, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound. None of the Company or any of the
Subsidiaries has received any notice of such violation or default.
(m) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement or the U.S. Underwriting Agreement
by the Company and the consummation of the transactions contemplated
herein or therein, except such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD"), the Commission,
the CSE, the CBF, the European Association of Securities Dealers,
Inc., or under the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or the securities or "Blue Sky"
laws of any jurisdiction in connection with the purchase and
distribution of the European Stock by the European Managers and the
U.S. Stock by the U.S. Underwriters.
(n) The Company has the full corporate power and authority to enter
into this Agreement and the U.S. Underwriting Agreement and to perform
its obligations hereunder and thereunder (including to issue, sell and
deliver the European Stock and U.S. Stock), and this Agreement and the
U.S. Underwriting Agreement have each been duly and validly
authorized, executed and delivered by the Company and constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
rights to indemnity and contribution hereunder or thereunder may be
limited by securities laws of any applicable national or state
jurisdiction or the public policy underlying such laws.
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(o) The Company and each of the Subsidiaries is in all material
respects in compliance with, and conduct their businesses in
conformity with, all applicable laws, rules and regulations and
decisions and orders of any court or governmental agency or body
having competent jurisdiction over it; to the knowledge of the Company
after due inquiry, except as set forth in the Registration Statement
and the Prospectuses, no prospective change in any of such laws, rules
or regulations has been adopted which, when made effective, would have
a material adverse effect on the operations of the Company and the
Subsidiaries, individually or taken as a whole. In the ordinary
course of business, employees of the Company and the Subsidiaries
conduct periodic reviews of the effect of Environmental Laws (as
defined below) on the business operations and properties of the
Company and the Subsidiaries, in the ordinary course of which they
seek to identify and evaluate associated costs and liabilities.
Except as disclosed in the Registration Statement and the
Prospectuses, each of the Company and the Subsidiaries is in
compliance with all applicable existing national, state and local laws
and regulations relating to the protection of human health or the
environment or imposing liability or requiring standards of conduct
concerning any Hazardous Materials ("Environmental Laws"), except for
such instances of noncompliance which, either singly or in the
aggregate, would not have a material adverse effect. The term
"Hazardous Material" means (i) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (ii) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (iii) any
petroleum or petroleum product, (iv) any polychlorinated biphenyl and
(v) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law.
(p) The Company and each of the Subsidiaries has filed all necessary
national, state and local income, payroll, franchise and other tax
returns and have paid all taxes shown as due thereon or with respect
to any of its properties, and there is no tax deficiency that has
been, or to the knowledge of the Company is likely to be, asserted
against the Company or any of the Subsidiaries or any of their
respective properties or assets that would adversely affect the
financial position, business or operations of the Company and the
Subsidiaries, individually or taken as a whole. All tax liabilities
of the Company and each of the Subsidiaries have been adequately
provided for, as reflected in the financial statements and related
notes.
(q) No person or entity has the right to require registration of
shares of Common Stock or other securities of the Company because of
the filing or effectiveness of the Registration Statement or
otherwise, except for persons and entities who have expressly waived
such right or who have been given proper notice and have failed to
exercise such right within the time or times required under the terms
and conditions of such right.
(r) Neither the Company nor any of its officers, directors or
affiliates (as defined in Rule 405 of the Securities Act) has taken or
will take, directly or indirectly, any action designed or intended to
stabilize or manipulate the price of any security of the Company, or
which caused or resulted in, or which might in the future reasonably
be expected to cause or result in, stabilization or manipulation of
the price of any security of the Company.
(s) The Company has provided you with all financial statements since
December 31, 1997 to the date hereof that are available to the
officers of the Company, including financial statements for the three
month period ended March 31, 1998, the three month and six month
periods ended June 30, 1998 and the three month and nine month periods
ended September 30, 1998, and for the months of October and November
1998.
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(t) The Company and the Subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, know-how and rights (collectively,
"Intellectual Property Rights") described in the Prospectuses as being
owned by them or any of them or necessary for the conduct of their
respective businesses, and neither the Company nor any Subsidiary is
aware of any claim to the contrary or any challenge or infringement by
any other person to or of the rights of the Company and the
Subsidiaries with respect to the foregoing. The business of the
Company and each Subsidiary as now conducted and as proposed to be
conducted as described in the Prospectuses does not and, to the
knowledge of the Company, will not infringe or conflict with any
Intellectual Property Rights or franchise right of any person. Except
as disclosed in the Prospectuses, the expiration or loss of any
Intellectual Property Right of the Company or any Subsidiary would not
have a material effect on the condition (financial or otherwise),
business, results of operations or prospects of the Company and the
Subsidiaries considered as a whole.
(u) The Company and the Subsidiaries have performed all material
obligations required to be performed by them under all contracts
required by the Rules and Regulations to be described in or filed as
exhibits to the Registration Statement, all such contracts have been
so described and/or filed, and none of the Company or any of the
Subsidiaries or any other party to any such contract is in default
under its terms or in breach of any of its respective obligations
thereunder. Neither the Company nor any of the Subsidiaries has
received any notice of any such default or breach.
(v) The Company is not involved in any labor dispute nor is any such
dispute threatened. The Company is not aware that (A) any executive,
key employee or significant group of employees of the Company or any
Subsidiary plans to terminate employment with the Company or any such
Subsidiary or (B) any such executive or key employee is subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or
similar agreement that would be violated by any such person's
participation in the present or proposed business activities of the
Company and the Subsidiaries as described in the Prospectuses. Neither
the Company nor any Subsidiary has or expects to have any liability
for any prohibited transaction or funding deficiency or any complete
or partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the United States Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any
similar plan subject to the laws and rules and regulations of any
other jurisdiction, to which the Company or any such Subsidiary makes
or ever has made a contribution and in which any employee of the
Company or any Subsidiary is or has ever been a participant. With
respect to such plans, the Company and each Subsidiary are in
compliance in all material respects with all applicable provisions of
ERISA and all other such laws.
(w) The Company has obtained the written agreement described in
Section 9(p) of this Agreement from each of its officers, directors
and holders of Common Stock, or securities convertible into or
exchangeable or exercisable for Common Stock listed on Schedule C
hereto.
(x) The Company and the Subsidiaries have, and the Company and the
Subsidiaries as of each of the Closing Dates will have, good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned or proposed to be
owned by them which is material to the business of the Company or of
the Subsidiaries, in each case free and clear of all liens,
encumbrances and defects, except such as are described the
Prospectuses or such as would in the aggregate not have a material
adverse effect on the Company and the Subsidiaries considered as a
whole; and
9
any real property and buildings held under lease by the Company and
the Subsidiaries or proposed to be leased by any of them after giving
effect to the transactions described in the Prospectuses are, or as of
each of the Closing Dates will be, held by them under valid, existing
and enforceable leases except as would not have a material adverse
effect on the Company and the Subsidiaries considered as a whole, in
each case except as described in the Prospectuses.
(y) The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are customary in the businesses in which they are
engaged or propose to engage after giving effect to the transactions
described in the Prospectuses; and neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary
to continue their business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and the Subsidiaries
considered as a whole, except as described in the Prospectuses.
(z) Other than as contemplated by this Agreement or the U.S.
Underwriting Agreement, there is no broker, finder or other party that
is entitled to receive from the Company any brokerage or finder's fee
or other fee, commission or other compensation as a result of any of
the transactions contemplated by this Agreement or the U.S.
Underwriting Agreement.
(aa) The Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(bb) To the Company's knowledge, neither the Company nor any of the
Subsidiaries nor any employee or agent of the Company or any of the
Subsidiaries has made any payment of funds of the Company or any of
the Subsidiaries or received or retained any funds in violation of any
law, rule or regulation.
(cc) Neither the Company nor any of the Subsidiaries is or, after
application of the net proceeds of this offering as described under
the caption "Use of Proceeds" in the Prospectuses, will become an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act"). The
Company intends to conduct its affairs in a manner such that it will
not become an entity required to register as an "investment company"
subject to regulation under the Investment Company Act.
(dd) The Common Stock has been approved for listing and admission to
trading on the CSE and EASDAQ, respectively, subject to official
notice of issuance.
Each certificate signed by any officer of the Company and delivered to the
European Managers or counsel for the European Managers shall be deemed to be a
representation and warranty by the Company as to the matters covered thereby.
10
3. Purchase by, and Sale and Delivery to, European Managers - Closing Dates.
------------------------------------------------------------------------
The Company agrees to sell to the European Managers the European Firm Stock
and, on the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, each European Manager agrees, severally and not jointly, to
purchase the European Firm Stock from the Company, the number of shares of
European Firm Stock to be purchased by each European Manager being set
opposite its name in Schedule A, subject to adjustment in accordance with
Section 13 hereof.
The purchase price per share to be paid by the European Managers to the
Company will be the price per share set forth in the table on the cover
page of the Prospectus as the "Proceeds, before expenses, to Phytera" (the
"Purchase Price").
Each European Manager agrees that, except to the extent permitted by the
Intersyndicate Agreement, it will not offer or sell any of the European
Stock outside of the United States and Canada or to anyone other than a
United States or Canadian person. As used herein, "United States or
Canadian Person" means any national or resident of the United States or
Canada or any corporation, pension, profit-sharing or other trust or other
entity organized under the laws of the United States or Canada or of any
political subdivision thereof (other than a branch located outside the
United States or Canada of any United States or Canadian Person), and
includes any United States or Canadian branch of a person who is otherwise
not a United States or Canadian Person.
The Company will deliver the European Firm Stock to the European
Representatives for the respective accounts of the several European
Managers (in the form of definitive certificates or book entries, as
instructed by the European Managers, issued in such names and in such
denominations as the European Representatives may direct by notice in
writing to the Company given at or prior to 12:00 Noon, New York Time, not
later than the second full business day preceding the First Closing Date
(as defined below) or, if no such direction is received, in the names of
the respective European Managers or in such other names as XX Xxxxx
International L.P. may designate (solely for the purpose of administrative
convenience) and in such denominations as XX Xxxxx International L.P. may
determine, against payment of the aggregate Purchase Price therefor by wire
transfer or certified or official bank check or checks in Federal or
similar same-day funds, payable to the order of the Company, all at the
offices of Xxxxx & Wood LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The time and date of the delivery and closing shall be at 10:00
A.M., New York time, on ____________, 1999, in accordance with Rule 15c6-1
of the Exchange Act. The time and date of such payment and delivery are
herein referred to as the "First Closing Date". The First Closing Date and
the location of delivery of, and the form of payment for, the European Firm
Stock may be varied by agreement between the Company and XX Xxxxx
International L.P. The First Closing Date may be postponed pursuant to the
provisions of Section 13 hereof.
The Company shall make the certificates, if any, for the European Stock
available to the European Representatives for examination on behalf of the
European Managers not later than 10:00 A.M., New York Time, on the business
day preceding the First Closing Date at the offices of XX Xxxxx
International L.P., One Xxxxx Xxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx.
It is understood that XX Xxxxx International L.P., individually and not as
European Representative of the several European Managers, may (but shall
not be obligated to) make payment to the Company on behalf of any European
Manager or European Managers, for the Stock to be purchased by such
European Manager or European Managers. Any such payment by XX Xxxxx
International L.P. shall not relieve such European Manager or European
Managers from any of its or their other obligations hereunder.
11
The several European Managers agree to make an initial public offering of
the European Firm Stock at the initial public offering price (the price per
share set forth on the cover page of the Prospectuses as the "Public
offering price") as soon after the effectiveness of the Registration
Statement as in their judgment is advisable. The European Representatives
shall promptly advise the Company of the making of the initial public
offering.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the European Firm Stock as contemplated by the
European Prospectus, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants to the European Managers an option to purchase,
severally and not jointly, up to the number of shares of European Optional
Stock set forth on Schedule A hereto, for an aggregate of up to __________
shares. The price per share to be paid for the Optional Stock shall be the
Purchase Price. The option granted hereby may be exercised as to all or
any part of the European Optional Stock at any time, and from time to time,
not more than thirty (30) days subsequent to the effective date of this
Agreement. No European Optional Stock shall be sold and delivered unless
the European Firm Stock previously has been, or simultaneously is, sold and
delivered. The right to purchase the European Optional Stock or any
portion thereof may be surrendered and terminated at any time upon notice
by the European Managers to the Company.
The option granted hereby may be exercised by the European Managers by
written notice from XX Xxxxx to the Company setting forth the number of
shares of the European Optional Stock to be purchased by them and the date
and time for delivery of and payment for the European Optional Stock. Each
date and time for delivery of and payment for European Optional Stock
(which may be the First Closing Date, but not earlier) is herein called an
"Option Closing Date" and shall in no event be earlier than two (2)
business days nor later than ten (10) business days after written notice is
given. Each Option Closing Date and the First Closing Date are herein
called the "Closing Dates." All purchases of European Optional Stock from
the Company shall be made on a pro rata basis. European Optional Stock
shall be purchased for the account of each European Manager in the same
proportion (or as nearly as practicable) as the number of shares of
European Firm Stock set forth opposite such European Manager's name in
Schedule A hereto bears to the total number of shares of European Firm
Stock (subject to adjustment by the European Managers to eliminate odd
lots). Upon exercise of the option by the European Managers, the Company
agrees to sell to the European Managers the number of shares of European
Optional Stock set forth in the written notice of exercise and the European
Managers agree, severally and not jointly and subject to the terms and
conditions herein set forth, to purchase the number of such shares
determined as aforesaid.
The Company will deliver the European Optional Stock to the European
Managers in the form of definitive certificates or book entries, as
instructed by the European Managers, issued in such names and in such
denominations as the European Representatives may direct by notice in
writing to the Company given at or prior to 12:00 Noon, New York time, not
later than the second full business day preceding the Option Closing Date
or, if no such direction is received, in the names of the respective
European Managers or in such other names as XX Xxxxx International L.P. may
designate (solely for the purpose of administrative convenience) and in
such denominations as XX Xxxxx International L.P. may determine, against
payment of the aggregate Purchase Price therefor by wire transfer or
certified or official bank check or checks in Federal or similar same-day
funds, payable to the order of the Company all at the offices of Xxxxx &
Wood llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company
shall make the certificates, if any, for the Optional Stock available to
the European Managers for examination on behalf of the European Managers
not later than 10:00 A.M., New York time, on the business day preceding the
relevant Option Closing Date at the offices of XX Xxxxx International L.P.,
Xxx Xxxxx Xxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx. The Option Closing Date
and the location of delivery of, and the form of payment for, the U.S.
Option Stock may be varied by agreement
12
between the Company and XX Xxxxx International L.P. The Option Closing Date
may be postponed pursuant to the provisions of Section 13 hereto.
4. [Intentionally omitted]
5. Covenants and Agreements of the Company. The Company covenants and agrees
---------------------------------------
with the several European Managers that:
(a) The Company will (i) if the Company and the European
Representatives have determined not to proceed pursuant to Rule 430A
of the Rules and Regulations, use its best efforts to cause the
Registration Statement to become effective as soon as practicable
after the execution of this Agreement, (ii) if the Company and the
European Representatives have determined to proceed pursuant to Rule
430A of the Rules and Regulations, use its best efforts to comply with
the provisions of and make all requisite filings with the Commission
pursuant to Rule 430A and Rule 424 of the Rules and Regulations and
(iii) if the Company and the European Representatives have determined
to deliver Prospectuses pursuant to Rule 434 of the Rules and
Regulations, to use its best efforts to comply with all the applicable
provisions thereof. The Company will use its best efforts to obtain
any approval of the European Prospectus from each of the CSE, the CBF
and the EASDAQ Market Authority required to permit the offer and sale
to the public of the European Stock in Belgium, Denmark and such other
jurisdictions in Europe as the European Representatives may request
and the listing and admission to trading of the Common Stock on the
CSE and EASDAQ, respectively. The Company will advise the European
Representatives promptly as to the time at which the Registration
Statement or any post-effective amendment thereto becomes effective
and the Prospectuses have been approved, as the case may be, will
advise the European Representatives promptly of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, or by the CSE, the CBF and EASDAQ of any order
preventing or suspending the use of any Pre-effective European
Prospectus or the European Prospectus, or of the institution of any
proceedings for any of those purposes, and will use its best efforts
to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued. The Company will advise the
European Representatives promptly of the receipt of any comments of
the Commission, the CSE, the CBF or the EASDAQ Market Authority or any
request by the Commission, the CSE, the CBF or the EASDAQ Market
Authority for any amendment of or supplement to the Registration
Statement or the Prospectuses or for additional information and will
not at any time file any amendment to the Registration Statement or
supplement to the Prospectuses which shall not previously have been
submitted to the European Representatives a reasonable time prior to
the proposed filing thereof or to which the European Representatives
shall reasonably object in writing or which is not in compliance with
the Securities Act and the Rules and Regulations or the rules and
regulations of the CSE, the CBF or EASDAQ.
(b) The Company will prepare and file with the Commission, the CSE,
the CBF and EASDAQ promptly upon the request of the European
Representatives, any amendments or supplements to the Registration
Statement or the Prospectuses which in the reasonable opinion of the
European Representatives may be necessary to enable the several
European Managers to continue the distribution of the European Stock
and the several U.S. Underwriters to continue the distribution of the
U.S. Stock and will use its best efforts to cause the same to become
effective or approved, as the case may be, as promptly as possible.
(c) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Stock is required to be
delivered under the Securities Act or the
13
rules and regulations of the CSE, the CBF or EASDAQ any event relating
to or affecting the Company or any of the Subsidiaries occurs as a
result of which the Prospectuses or any other prospectus as then in
effect would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectuses to comply with the Securities Act and the Rules and
Regulations, or the rules and regulations of the CSE, the CBF or
EASDAQ, the Company will promptly notify the European Representatives
thereof and will prepare amended or supplemented prospectuses which
will correct such statement or omission; and in case any European
Manager is required to deliver a prospectus relating to the European
Stock nine months or more after the effective date of the Registration
Statement, the Company, upon the request of the European
Representatives and at the expense of such European Manager, will
prepare promptly such prospectus or prospectuses as may be necessary
to permit compliance with the requirements of Section 10(a)(3) of the
Securities Act or any equivalent rules and regulations of the CSE, the
CBF and EASDAQ.
(d) The Company will deliver to the European Representatives, at or
before the Closing Dates, four signed copies of the Registration
Statement, as originally filed with the Commission, and all amendments
thereto, including all financial statements and exhibits thereto, and
four signed copies of the European Prospectus and all supplements
thereto, and will deliver to the European Representatives such number
of copies of the Registration Statement, including such financial
statements but without exhibits, and all amendments thereto, as the
European Representatives may reasonably request. The Company will
deliver or mail to or upon the order of the European Representatives,
from time to time until the effective date of the Registration
Statement, as many copies of the Pre-effective Prospectus as the
Representatives may reasonably request. The Company will deliver or
mail to or upon the order of the European Representatives on the date
of the initial public offering, and thereafter from time to time
during the period when delivery of a prospectus relating to the
European Stock is required under the Securities Act and the Rules and
Regulations, as many copies of the European Prospectus, in final form
or as thereafter amended or supplemented as the European
Representatives may reasonably request; provided, however, that the
expense of the preparation and delivery of any European Prospectus
required for use nine months or more after the effective date of the
Registration Statement shall be borne by the European Managers
required to deliver such European Prospectus.
(e) The Company will make generally available to its shareholders as
soon as practicable, but not later than 15 months after the effective
date of the Registration Statement, an earning statement which will be
in reasonable detail (but which need not be audited) and which will
comply with Section 11(a) of the Securities Act, covering a period of
at least 12 consecutive months beginning after the "effective date"
(as defined in Rule 158 under the Securities Act) of the Registration
Statement and will advise XX Xxxxx in writing when such statement has
been made available.
(f) The Company will cooperate with the European Representatives to
enable the Stock to be registered or qualified for offering and sale
by the European Managers and by dealers under the securities laws of
such jurisdictions as the European Representatives may designate and
at the request of the European Representatives will make such
applications and furnish such consents to service of process or other
documents as may be required of it as the issuer of the European Stock
for that purpose; provided, however, that the Company shall not be
required to qualify to do business or to file a general consent (other
than that arising out of the offering or sale of the Stock) to service
of process in any such jurisdiction where it is not now so subject.
The Company will, from time to time, prepare and file such statements
and reports as are or may be required of it
14
as the issuer of the Stock to continue such qualifications in effect
for so long a period as the European Representatives may reasonably
request for the distribution of the Stock. The Company will advise the
European Representatives promptly after the Company becomes aware of
the suspension of the qualifications or registration of (or any such
exception relating to) the Common Stock of the Company for offering,
sale or trading in any jurisdiction or of any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance
of any orders suspending such qualifications, registration or
exception, the Company will, with the cooperation of the European
Representatives use its best efforts to obtain the withdrawal thereof.
(g) As and when required by the Rules and Regulations or, if more
frequently or sooner by applicable regulations of the CSE, the CBF and
EASDAQ, the Company will furnish to its shareholders annual reports
containing financial statements certified by independent public
accountants, and quarterly summary financial information in reasonable
detail which may be unaudited. During the period of five years from
the date hereof, the Company will deliver to the European
Representatives and, upon request of the European Representatives, to
each of the other European Managers, (i) as soon as practicable after
the end of each fiscal year, copies of each annual report of the
Company containing financial statements certified by independent
public accountants and each other report furnished by the Company to
its shareholders, (ii) as soon as they are available, copies of any
other reports (financial or other) which the Company shall publish or
otherwise make available to any of its shareholders as such, (iii) as
soon as practicable after the filing thereof, copies of any reports,
documents, financial statements and other information furnished to or
filed by the Company with the Commission, the NASD, the CSE, the CBF,
EASDAQ or any other securities exchange or electronic quotation
system, including each proxy statement, Annual Report on Form 10-K,
Quarterly Report on Form 10-Q and Report on Form 8-K filed with the
Commission and (iv) from time to time such other information
concerning the Company as the European Representatives may request.
So long as the Company has active subsidiaries, such financial
statements will be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports
furnished to its shareholders generally. Separate financial statements
shall be furnished for all subsidiaries whose accounts are not
consolidated but which at the time are significant subsidiaries as
defined in the Rules and Regulations.
(h) The Company will comply with all applicable rules and regulations
with respect to listing on the CSE and admission to trading securities
on EASDAQ and with all CSE and EASDAQ rules and regulations. The
Company will use its best efforts to maintain the listing and
admission to trading of the Common Stock on the CSE and EASDAQ,
respectively, for a period of not less than five years after the
effective date of the Registration Statement.
(i) The Company will maintain one or more independent registrars and
transfer agents for its Common Stock.
(j) Prior to filing its quarterly financial statements on Form 10-Q,
the Company will have its independent auditors perform a limited
quarterly review of its quarterly financial statements and other
financial and statistical data required to be included therein.
(k) The Company will not offer, sell, assign, transfer, encumber,
contract to sell, grant an option to purchase or otherwise dispose of
any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock (including, without
limitation, Common Stock of the Company which may be deemed to be
beneficially owned by the Company in accordance with the Rules and
Regulations)
15
during the 180 days following the date on which the price of the
European Stock to be purchased by the European Managers is set, other
than (i) the Company's sale of Common Stock hereunder, (ii) the
Company's issuance of Common Stock upon the exercise of warrants or
stock options which are presently outstanding and described in the
Prospectuses and (iii) the issuance by the Company of any shares or
option to purchase any shares of Common Stock pursuant to its option
plan or employee stock purchase plan described in the Prospectuses.
(l) Prior to filing with the Commission any reports required pursuant
to Rule 463 of Rules and Regulations, the Company will furnish a copy
thereof to the counsel for the European Managers and receive and
consider its comments thereon, and will deliver promptly to the
European Representatives four signed copies of each such report filed
by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the
Stock as set forth in the description under "Use of Proceeds" in the
Prospectuses, which description complies in all respects with the
requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence to
and from, and all documents issued to and by the Commission, in
connection with the registration of the Stock under the Securities Act
and the Exchange Act, and the CSE, the CBF and EASDAQ, in connection
with the offer and sale of the Stock and the listing and admission to
trading of the Common Stock on the CSE and EASDAQ.
(o) Prior to each of the Closing Dates the Company will furnish to
the European Representatives, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of
the Company and its subsidiaries for any periods subsequent to the
periods covered by the financial statements appearing in the
Registration Statement and the Prospectuses.
(p) Prior to each of the Closing Dates the Company will issue no
press release or other communications directly or indirectly and hold
no press conference with respect to the Company or any of the
Subsidiaries, the financial condition, results of operations,
business, prospects, assets or liabilities of any of them, or the
offering of the Stock, without the prior written consent of XX Xxxxx.
For a period of 12 months following the first Closing Date, the
Company will provide to XX Xxxxx copies of each press release or other
public communications with respect to the financial condition, results
of operations, business, prospects, assets or liabilities of the
Company at least 24 hours prior to the public issuance thereof or such
longer advance period as may reasonably be practicable.
(q) The Company shall not invest or otherwise use the proceeds
received by the Company from its sale of the Stock in such a manner as
would require the Company or any of its subsidiaries to register as an
investment company under the Investment Company Act.
(r) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
6. Payment of Expenses. (a) The Company will pay (directly or by
-------------------
reimbursement) all of its costs, fees and expenses incident to the
performance of its obligations under this Agreement and the U.S.
Underwriting Agreement and in connection with the transactions contemplated
hereby, including but not limited to (i) all expenses and taxes incident to
the issuance and delivery of the
16
European Stock to the European Managers; (ii) all expenses incident to the
registration of the Stock under the Securities Act and approval of the
Stock for offer and sale in Belgium and Denmark and such other
jurisdictions as may be requested by the European Managers; (iii) the costs
of preparing stock certificates (including printing and engraving costs);
(iv) all fees and expenses of each registrar and transfer agent of the
Stock; (v) fees and expenses of the Company's counsel and the Company's
independent accountants; (vi) all costs and expenses incurred in connection
with the preparation, printing filing, shipping and distribution of the
Registration Statement, each Pre-effective Prospectus and the Prospectuses
(including all exhibits and financial statements) and all amendments and
supplements provided for herein, the "Agreement Among Managers" between the
European Representatives and the European Managers, the "Intersyndicate
Agreement" between the European Representatives and U.S. Representatives,
the Master Selected Dealers' Agreement, the U.S. Underwriters'
Questionnaire and the Blue Sky memoranda (including related fees and
expenses of counsel to the European Managers) and this Agreement; (vii) all
filing fees, attorneys' fees and expenses incurred by the Company or the
European Managers in connection with exemptions from the qualifying or
registering (or obtaining qualification or registration of) all or any part
of the Stock for offer and sale and determination of its eligibility for
investment under the Blue Sky or other securities laws of such
jurisdictions as the European Representatives may designate; (viii) all
fees and expenses paid or incurred in connection with filings made with the
NASD; (ix) fees and expenses associated with listing the Common Stock on
the CSE and admission to trading on EASDAQ, and filing with the CBF; and
(x) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section.
(b) In addition to its other obligations under Section 7(a) hereof, the
Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon (i) any statement or omission, or any alleged statement or
omission, in the Registration Statement or the Prospectuses, (ii) any act
or failure to act or any alleged act or failure to act or (iii) any breach
or inaccuracy in its representations and warranties, it will reimburse each
European Manager on a quarterly basis upon written request to the Company
for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial
determination as to the Company's obligation to reimburse each European
Manager (and, to the extent applicable, each officer, director or
controlling person of such European Manager) for such expenses and the
possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, each European
Manager shall promptly return it to the Company together with interest,
compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing)
announced from time to timed by The Chase Manhattan Bank, New York, New
York (the "Prime Rate"). Any such interim reimbursement payments which are
not made to a European Manager in a timely manner as provided below shall
bear interest at the Prime Rate from the due date for such reimbursement.
This expense reimbursement agreement will be in addition to any other
liability which the Company may otherwise have.
(c) In addition to its other obligations under Section 7(b) hereof, each
European Manager severally agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged
statement or omission, described in Section 7(b) hereof which relates to
information furnished to the Company pursuant to Section 7(b) hereof, it
will reimburse the Company (and, to the
17
extent applicable, each officer, director or controlling person of the
Company) on a quarterly basis upon written request to such European Manager
for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial
determination of such European Manager's obligation to reimburse the
Company (and, to the extent applicable, each officer, director or
controlling person of the Company) for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, the Company (and, to the extent
applicable, each officer, director or controlling person of the Company)
shall promptly return it to such European Manager together with interest,
compounded daily, determined on the basis of the Prime Rate. Any such
interim reimbursement payments which are not made to the Company within 30
days of a request for reimbursement shall bear interest at the Prime Rate
from the date of such request. This indemnity agreement will be in addition
to any liability which such European Manager may otherwise have.
(d) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in paragraph (b) and/or (c) of
this Section 6, including the timing and amounts of any requested
reimbursement payments and the method of determining such amounts, shall be
settled by arbitration conducted under the following provisions. Any such
arbitration must be commenced by service of a written demand for
arbitration or written notice of intention to arbitrate. Upon commencement,
each party shall select one arbitrator, and the two arbitrators so selected
shall together select a mutually satisfactory third arbitrator. The three
arbitrators shall determine the procedures that they shall follow in
arbitrating the controversy arising out of the operation of the interim
reimbursement arrangements set forth in paragraph (b) and/or (c) of this
Section 6 in respect of which such arbitrators were selected. Any such
arbitration would be limited to the operation of the interim reimbursement
provisions contained in paragraph (b) and/or (c) of this Section 6 and
would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of
Section 7. Any payments which are the subject of any pending arbitration
proceeding under this Section 6(d) shall be suspended until such matter is
resolved in accordance with this Section 6(d) or by a court of competent
jurisdiction.
7. Indemnification and Contribution. (a) The Company agrees to indemnify and
--------------------------------
hold harmless each European Manager and each person, if any, who controls
such European Manager within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of each of such
European Manager (collectively, the "European Manager Indemnified Parties"
and, each, a "European Manager Indemnified Party"), against any losses,
claims, damages, liabilities or expenses (including the reasonable cost of
investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, which may be based
upon the Securities Act, or any other statute or at common law, (i) on the
ground or alleged ground that any Pre-effective Prospectus, the
Registration Statement or the Prospectuses (or any Pre-effective
Prospectus, the Registration Statement or the Prospectuses as from time to
time amended or supplemented) includes or allegedly includes an untrue
statement of a material fact or omits to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company by any
European Manager, directly or through the European Representatives,
specifically for use in the preparation thereof or (ii) for any act or
failure to act or any alleged act, or failure to act, by any European
Manager in connection with, or relating in any manner to, any loss, claim,
damage, liability or expense referred to in clause (i) above; provided that
the Company shall not be liable under this clause (i) with respect to a
prospectus delivered by a European Manager after the Company has given
notice pursuant to Section 5(c) above that such prospectus is being amended
by the Company; and provided, further, that the Company shall not be liable
under this clause (ii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, or liability or expense resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such European Manager
through its gross negligence or willful misconduct; provided, however, that
in no case is the Company to be liable with respect to any claims made
against any
18
European Manager Indemnified Party against whom the action is brought
unless such European Manager Indemnified Party shall have not notified the
Company in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon the European Manager Indemnified Party, but failure
to notify the Company of such claim shall not relieve it from any liability
which it may have to any European Manager Indemnified Party otherwise than
on account of its indemnity agreement contained in this paragraph. The
Company will be entitled to participate at its own expense in the defense
or, if it so elects, to assume the defense of any suit brought to enforce
any such liability, but if the Company elects to assume the defense, such
defense shall be conducted by counsel chosen by it and reasonably
acceptable to the European Managers. In the event the Company elects to
assume the defense of any such suit and retain such counsel, any European
Manager Indemnified Party, defendant or defendants in the suit, may retain
additional counsel but shall bear the fees and expenses of such counsel
unless (i) the Company shall have specifically authorized the retaining of
such counsel or (ii) the parties to such suit include such European Manager
Indemnified Party, and the Company and such European Manager Indemnified
Party have been advised by counsel to the European Managers that one or
more legal defenses at law or in equity may be available to it or them
which may not be available to the Company, in which case the Company shall
bear the reasonable fees and expenses of one counsel for the European
Managers. In the event that the Company must bear the fees and expenses of
counsel to a European Manager Indemnified Party under clause (ii) of the
foregoing sentence, the Company shall not be entitled to assume the defense
of such suit notwithstanding its obligation to bear the fees and expenses
of such counsel. The Company Indemnified Party against whom indemnity may
be sought shall not be liable to indemnify any person for any settlement of
any such claim effected without the Company's consent. This indemnity
agreement is not exclusive and is in addition to any liability which the
Company might otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to each European
Manager Indemnified Party.
(b) Each European Manager severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (collectively, the "Company Indemnified
Parties" and, each, a "Company Indemnified Party") against any losses,
claims, damages, liabilities or expenses (including, unless the European
Manager or European Managers elect to assume the defense, the reasonable
cost of investigating and defending against any claims therefor and counsel
fees incurred in connection therewith), joint or several, which arise out
of or are based in whole or in part upon the Securities Act, the Exchange
Act, the rules and regulations thereunder or any other statute at common
law, on the ground or alleged ground that any Pre-effective Prospectuses,
the Registration Statement or the Prospectuses (or any Pre-effective
Prospectuses, the Registration Statement or the Prospectuses, as from time
to time amended and supplemented) includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, but only insofar
as any such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company by such
European Manager, directly or through the European Representatives,
specifically for use in the preparation thereof; provided, however, that in
no case is such European Manager to be liable with respect to any claims
made against any Company Indemnified Party against whom the action is
brought unless such Company Indemnified Party shall have notified such
European Manager in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim
shall have been served upon the Company Indemnified Party, but failure to
notify such European Manager of such claim shall not relieve it from any
liability which it may have to any Company Indemnified Party otherwise than
on account of its indemnity agreement contained in this paragraph. Such
European Manager shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if such
19
European Manager elects to assume the defense, such defense shall be
conducted by counsel chosen by it. In the event that any European Manager
elects to assume the defense of any such suit and retain such counsel, the
Company Indemnified Parties and any other European Manager or European
Managers or controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional counsel retained
by them, respectively. The European Manager against whom indemnity may be
sought shall not be liable to indemnify any person for any settlement of
any such claim effected without such European Manager's consent. This
indemnity agreement is not exclusive and will be in addition to any
liability which such European Manager might otherwise have and shall not
limit any rights or remedies which may otherwise be available at law or in
equity to any Company Indemnified Party.
(c) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to herein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the European Managers on the other from the offering of the
Stock. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
European Managers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the European Managers on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the European Managers, in each case
as set forth in the table on the cover page of the Prospectuses. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the European Managers and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
European Managers agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the European
Managers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
or expenses (or actions in respect thereof) referred to above shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, defending, settling or
compromising any such claim. Notwithstanding the provisions of this
subsection (c), no European Manager shall be required to contribute any
amount in excess of the amount by which the total price at which the shares
of the Stock underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such European Manager
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The European Managers'
obligations to contribute are several in proportion to their respective
underwriting obligations and not joint. 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.
8. Survival of Indemnities, Representations, Warranties, etc. The respective
---------------------------------------------------------
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several European Managers, as set forth
in this Agreement or made by them respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation made
by or on
20
behalf of any European Manager, the Company or any of its officers
or directors or any controlling person, and shall survive delivery of and
payment for the Stock.
9. Conditions of European Managers' Obligations. The respective obligations
--------------------------------------------
of the several European Managers hereunder shall be subject to the
accuracy, at and (except as otherwise stated herein) as of the date hereof
and at and as of each of the Closing Dates, of the representations and
warranties made herein by the Company, to compliance at and as of each of
the Closing Dates by the Company with its covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to each
of the Closing Dates, and to the following additional conditions.
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the knowledge
of the Company or the European Representatives, shall be contemplated or
threatened by the Commission, and any request for additional information on
the part of the Commission (to be included in the Registration Statement or
the Prospectuses or otherwise) shall have been complied with to the
reasonable satisfaction of the European Representatives and no injunction,
restraining order or order of any nature shall have been issued as of each
of the Closing Dates which would prevent the issuance of the Stock. Any
filings of the Prospectuses, or any supplement thereto, required pursuant
to Rule 424(b) or Rule 434 of the Rules and Regulations, shall have been
made in the manner and within the time period required by Rule 424(b) and
Rule 434 of the Rules and Regulations, as the case may be.
(b) The European Prospectus shall have been approved by each of the CSE,
the CBF, and EASDAQ and shall comply in all material respects with all
applicable legal requirements for use in a public offering in Belgium and
Denmark and such other jurisdictions in Europe as the European
Representatives shall have requested, and no action shall have been taken
and no proceeding shall have been initiated by the CSE, the CBF or EASDAQ
for the purpose of rescinding such approval.
(c) The European Representatives shall have been satisfied that there
shall not have occurred any change, on a consolidated basis, prior to each
of the Closing Dates in the condition (financial or otherwise), properties,
business, management, prospects, net worth or results of operations of the
Company and its subsidiaries considered as a whole, or any change in the
capital stock, short-term or long-term debt of the Company and its
subsidiaries considered as a whole, such that (i) the Registration
Statement or the Prospectuses, or any amendment or supplement thereto,
contains an untrue statement of fact which, in the opinion of the European
Representatives, is material, or omits to state a fact which, in the
opinion of the European Representatives, is required to be stated therein
or is necessary to make the statements therein not misleading, or (ii) it
is unpracticable in the reasonable judgment of the European Representatives
to proceed with the public offering or to purchase the European Stock as
contemplated hereby.
(d) The European Representatives shall be satisfied that no legal or
governmental action, suit or proceeding affecting the Company which is
material and adverse to the Company or which affects or may affect the
Company's ability to perform its obligations under this Agreement or the
U.S. Underwriting Agreement shall have been instituted or threatened and
there shall have occurred no material adverse development in any such
existing action, suit or proceeding.
(e) At the time of execution of this Agreement, the European
Representatives shall have received from Xxxxxx Xxxxxxxx LLP, independent
certified public accountants, a letter, dated the date hereof, in form and
substance satisfactory to the European Managers.
(f) The European Representatives shall have received from Xxxxxx Xxxxxxxx
LLP, independent certified public accountants, letters, dated each of the
Closing Dates, to the effect that such accountants reaffirm, as of each of
the Closing Dates, and as though made on each of
21
the Closing Dates, the statements made in the letter furnished by such
accountants pursuant to paragraph (e) of this Section 9.
(g) The European Representatives shall have received from Xxxxxx & Dodge
LLP, counsel for the Company, opinions, dated each of the Closing Dates, to
the effect set forth in Exhibit I hereto.
(h) The European Representatives shall have received from Dragsted &
Xxxxxx Xxxxxxx, Danish counsel for the Company, opinions, dated each of the
Closing Dates, in a form reasonably satisfactory to the European
Representatives.
(i) The European Representatives shall have received from Xxxxxx Xxxx,
English counsel for the Company, opinions, dated each of the Closing Dates,
in a form reasonably satisfactory to the European Representatives.
(j) The European Representatives shall have received from Xxxxxx & Xxxxxx,
U.S. patent counsel for the Company, opinions, dated each of the Closing
Dates, to the effect set forth in Exhibit II hereto.
(k) The European Representatives shall have received from Ploughmann,
Vingtoft & Partners, Danish patent counsel for the Company, opinions, dated
each of the Closing Dates, to the effect set forth in Exhibit III hereto.
(l) The European Representatives shall have received from Xxxxx & Wood
LLP, counsel for the European Managers, their opinions dated each of the
Closing Dates with respect to the incorporation of the Company, the
validity of the Stock, the Registration Statement and the Prospectuses
(other than financial data contained therein) and such other related
matters as it may reasonably request, and the Company shall have furnished
to such counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(m) The European Representatives shall have received from, Xxxx-Xxxxx &
Trolle, Danish counsel for the European Managers, opinions, dated each of
the Closing Dates, in a form reasonably satisfactory to the European
Representatives.
(n) The European Representatives shall have received from, ______________,
English counsel for the European Managers, opinions, dated each of the
Closing Dates, in a form reasonably satisfactory to the European
Representatives.
(o) On each Closing Date, the European Representatives shall have received
a certificate, dated such Closing Date, of the President and Chief
Executive Officer and the chief financial or accounting officer of the
Company to the effect that:
(i) The Registration Statement has become effective under the
Securities Act and all filings required to have been made
pursuant to Rule 424 or 430A under the Securities Act have been
made;
(ii) The European Prospectus has been approved by each of the CBF,
EASDAQ and the CSE.
(iii) None of the Commission, the CSE, the CBF, nor the EASDAQ Market
Authority, as the case may be, has issued any stop order or
equivalent order suspending the effectiveness of the
Registration Statement or the Prospectuses, and, to the best of
the knowledge of the Company, no proceedings for that purpose
have been instituted or are pending or
22
contemplated by the Commission, the CSE, the CBF, or the EASDAQ
Market Authority;
(iv) Each such officer has carefully examined the Registration
Statement and the Prospectuses, and in each such officer's
opinion, the statements contained in the Registration Statement
and the Prospectuses were true and correct as of their
respective dates, and none of any Pre-effective Prospectus, as
of its date, nor the Registration Statement nor the
Prospectuses or the Danish Prospectus, nor any amendment or
supplement thereto, as of the time when the Registration
Statement became effective and the European Prospectus was
approved and at all times subsequent thereto up to the delivery
of such certificate, included any untrue statement of a
material fact or omitted to state any 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;
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectuses, and
except as set forth or contemplated in the Prospectuses,
neither the Company nor any of its Subsidiaries has incurred
any material liabilities or obligations, direct or contingent,
or has entered into any material transactions not in the
ordinary course of business and there has not been any material
adverse change in the condition (financial or otherwise),
properties, business, management, prospects, net worth or
results of operations of the Company and its subsidiaries
considered as a whole, and there has not been any change in the
capital stock of the Company or any of the Subsidiaries or any
change in the short-term or long-term debt of the Company and
its subsidiaries considered as a whole;
(vi) The representations and warranties of the Company in this
Agreement are true and correct at and as of each of the Closing
Dates, and the Company has complied with all the agreements and
performed or satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Dates; and
(vii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectuses, and except as
disclosed in the Prospectuses, (i) there has not been any
material adverse change or a development involving a material
adverse change in the condition (financial or otherwise),
properties, business, management, prospects, net worth or
results of operations of the Company and its subsidiaries
considered as a whole; (ii) the business and operations
conducted by the Company and the Subsidiaries have not
sustained a loss by strike, fire, flood, accident or other
calamity (whether or not insured) of such a character as to
interfere materially with the conduct of the business and
operations of the Company and its subsidiaries considered as a
whole; (iii) no legal or governmental action, suit or
proceeding is pending or threatened against the Company which
is material to the Company, whether or not arising from
transactions in the ordinary course of business, or which may
materially and adversely affect the transactions contemplated
by this Agreement or the U.S. Underwriting Agreement; (iv)
since such dates and except as so disclosed, the Company has
not incurred any material liability or obligation, direct,
contingent or indirect,
23
made any change in its capital stock (except pursuant to its
stock plans), made any material change in its short-term or
funded debt or repurchased or otherwise acquired any of the
Company's capital stock; and (v) the Company has not declared
or paid any dividend, or made any other distribution, upon its
outstanding capital stock payable to stockholders of record on
a date prior to the Closing Date.
(p) The Company shall have furnished to the European Representatives such
additional certificates as the European Representatives may have reasonably
requested as to the accuracy, at and as of each of the Closing Dates, of
the representations and warranties made herein by it and as to compliance
at and as of each of the Closing Dates by it with its covenants and
agreements herein contained and other provisions hereof to be satisfied at
or prior to each of the Closing Dates, and as to satisfaction of the other
conditions to the obligations of the European Managers hereunder.
(q) XX Xxxxx shall have received the written agreements, substantially in
the form of Exhibit IV hereto, of each of the officers, directors and
holders of Common Stock, or securities convertible into or exchangeable or
exercisable for Common Stock listed in Schedule C that each of them will
not offer, sell, assign, transfer, encumber, contract to sell, grant an
option to purchase or otherwise dispose of, any shares of Common Stock
(including, without limitation, Common Stock which may be deemed to be
beneficially owned by such officer, director or holder in accordance with
the Rules and Regulations) during the 180 days following the date of the
final Prospectuses.
(r) The CSE and EASDAQ shall have approved the Common Stock for listing
and admission for trading, respectively, subject only to official notice of
issuance.
(s) Contemporaneously with the purchase by the European Managers of the
European Firm Stock under this Agreement, the U.S. Underwriters shall have
purchased the U.S. Firm Stock under the U.S. Underwriting Agreement.
(t) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
All opinions, certificates, letters and other documents will be in
compliance with the provisions hereunder only if they are satisfactory in
form and substance to the European Representatives. The Company will
furnish to the European Representatives conformed copies of such opinions,
certificates, letters and other documents as the European Representatives
shall reasonably request. If any of the conditions hereinabove provided
for in this Section 9 shall not have been satisfied when and as required by
this Agreement, this Agreement may be terminated by the European
Representatives by notifying the Company of such termination in writing or
by telegram at or prior to each of the Closing Dates, but XX Xxxxx
International L.P., on behalf of the European Representatives, shall be
entitled to waive any of such conditions.
10. Effective Date. This Agreement shall become effective immediately as to
--------------
Sections 6, 7, 8, 10, 11,12, 14, 15, 16, 17 and 18 and, as to all other
provisions, at 11:00 a.m. New York City time on the first full business day
following the date of effectiveness of the Registration Statement or at
such earlier time after the date hereof and after the Registration
Statement becomes effective as the European Representatives may determine
on and by notice to the Company or by release of any of the Stock for sale
to the public. For the purposes of this Section 10, the Stock shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Stock or upon the release by you of
telegrams (i) advising European Managers that the shares of Stock are
released for public offering or (ii) offering the Stock for sale to
securities dealers, whichever may occur first.
24
11. Termination. This Agreement (except for the provisions of Section 6) may
-----------
be terminated by the Company at any time before it becomes effective in
accordance with Section 10 by notice to the European Representatives and
may be terminated by the European Representatives at any time before it
becomes effective in accordance with Section 10 by notice to the Company.
In the event of any termination of this Agreement under this or any other
provision of this Agreement, there shall be no liability of any party to
this Agreement to any other party, other than as provided in Sections 6, 7
and 12 and other than as provided in Section 13 as to the liability of
defaulting European Managers.
This Agreement may be terminated after it becomes effective by the European
Representatives by notice to the Company (i) if at or prior to the First
Closing Date trading in securities on any of the New York Stock Exchange,
American Stock Exchange, Nasdaq National Market, the CSE, or EASDAQ shall
have been suspended or minimum or maximum prices shall have been
established on any such exchange or market, or a banking moratorium shall
have been declared by New York, or United States, Danish or Belgian
authorities; (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market; (iii) if at or
prior to the First Closing Date there shall have been (A) an outbreak or
escalation of hostilities between any of the United States, Denmark or the
United Kingdom and any foreign power or of any other insurrection or armed
conflict involving the United States, Denmark or the United Kingdom or (B)
any change in financial markets or any calamity or crisis which, in the
judgment of the European Representatives, makes it impractical or
inadvisable to offer or sell the Stock on the terms contemplated by the
Prospectuses; (iv) if there shall have been any development or prospective
development involving particularly the business or properties or securities
of the Company or any of the Subsidiaries or the transactions contemplated
by this Agreement, which, in the judgment of the European Representatives,
makes it impracticable or inadvisable to offer or deliver the Stock on the
terms contemplated by the Prospectuses; (v) if there shall be any
litigation or proceeding, pending or threatened, which, in the judgment of
the European Representatives, makes it impracticable or inadvisable to
offer or deliver the on the terms contemplated by the Prospectuses; or (vi)
if there shall have occurred any of the events specified in the immediately
preceding clauses (i) - (v) together with any other such event that makes
it, in the judgment of the European Representatives, impractical or
inadvisable to offer or deliver the Stock on the terms contemplated by the
Prospectuses.
12. Reimbursement of European Managers. Notwithstanding any other provisions
----------------------------------
hereof, if this Agreement shall not become effective by reason of any
election of the Company pursuant to the first paragraph of Section 11 or
shall be terminated by the European Representatives under Section 9 or
Section 11, the Company will bear and pay the expenses specified in Section
6 hereof and, in addition to its obligations pursuant to Section 7 hereof,
the Company will reimburse the reasonable out-of-pocket expenses of the
several European Managers (including reasonable fees and disbursements of
counsel for the European Managers) incurred in connection with this
Agreement and the proposed purchase of the European Stock, and promptly
upon demand the Company will pay such amounts to you as European
Representatives.
13. Substitution of European Managers. If any European Manager or European
---------------------------------
Managers shall default in its or their obligations to purchase shares of
European Stock hereunder and the aggregate number of shares which such
defaulting European Manager or European Managers agreed but failed to
purchase does not exceed ten percent (10%) of the total number of shares of
European Stock underwritten, the other European Managers shall be obligated
severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting European Manager or European
Managers agreed but failed to purchase. If any European Manager or European
Managers shall so default and the aggregate number of shares with respect
to which such default or defaults occur is more than ten percent (10%) of
the total number of shares of European Stock underwritten and arrangements
satisfactory to the
25
Representatives and the Company for the purchase of such shares by other
persons are not made within forty-eight (48) hours after such default, this
Agreement shall terminate.
If the remaining European Managers or substituted European Managers are
required hereby or agree to take up all or part of the shares of European
Stock of a defaulting European Manager or European Managers as provided in
this Section 13, (i) the Company shall have the right to postpone the
Closing Dates for a period of not more than five (5) full business days in
order that the Company may effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectuses, or in any
other documents or arrangements, and the Company agrees promptly to file
any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining European Managers or
substituted European Managers shall be taken as the basis of their
underwriting obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting European Manager of its liability to
the Company or the other European Managers for damages occasioned by its
default hereunder. Any termination of this Agreement pursuant to this
Section 13 shall be without liability on the part of any non-defaulting
European Manager or the Company, except for expenses to be paid or
reimbursed pursuant to Section 6 and except for the provisions of Section
7.
14. Notices. All communications hereunder shall be in writing and, if sent to
-------
the European Managers shall be mailed, delivered or telegraphed and
confirmed to you, as their European Representatives c/o XX Xxxxx
International, L.P. at Xxx Xxxxx Xxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
except that notices given to a European Manager pursuant to Section 7
hereof shall be sent to such European Manager at the address furnished by
the European Representatives or, if sent to the Company, shall be mailed,
delivered or telegraphed and confirmed c/o Phytera, Inc. at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxx , Xxxxxxxxxxxxx 00000.
15. Successors. This Agreement shall inure to the benefit of and be binding
----------
upon the several European Managers, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person other
than the persons mentioned in the preceding sentence any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that
the representations, warranties, covenants, agreements and indemnities of
the Company contained in this Agreement shall also be for the benefit of
the person or persons, if any, who control any European Manager or European
Managers within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, and the indemnities of the several European
Managers shall also be for the benefit of each director of the Company,
each of its officers who has signed the Registration Statement and the
person or persons, if any, who control the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act.
16. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York.
17. Authority of the European Representatives. In connection with this
-----------------------------------------
Agreement, you will act for and on behalf of the several European Managers,
and any action taken under this Agreement by Xxxxx, as European
Representative, will be binding on all the European Managers.
18. Partial Unenforceability. The invalidity or unenforceability of any
------------------------
Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for
any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are
necessary to make it valid and enforceable.
26
19. General. This Agreement constitutes the entire agreement of the parties to
-------
this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof. In this Agreement, the masculine,
feminine and neuter genders and the singular and the plural include one
another. The section headings in this Agreement are for the convenience of
the parties only and will not affect the construction or interpretation of
this Agreement. This Agreement may be amended or modified, and the
observance of any term of this Agreement (other than the conditions set
forth in Section 9 which may be waived on behalf of the European Managers
solely by XX Xxxxx International L.P.) may be waived, only by a writing
signed by the Company and the European Representatives.
20. Counterparts. This Agreement may be signed in two or more counterparts,
------------
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
27
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
PHYTERA, INC.
By: _________________________________
President and Chief Executive Officer
Accepted and delivered as of
the date first above written.
XX XXXXX INTERNATIONAL X.X.
XXXXXXXX BANK A/S
BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL LTD.
Acting on their own behalf
and as Representatives of the several
European Managers referred to in the
foregoing Agreement.
By: XX XXXXX INTERNATIONAL L.P.
By: _________________________
Name:
Title:
28
SCHEDULE A
Number of European Number of European
Firm Shares to be Optional Shares to be
------------
Name Purchased Purchased
---- --------- ---------
XX Xxxxx International X.X.
Xxxxxxxx Bank A/S
BancBoston Xxxxxxxxx Xxxxxxxx
International Ltd.
-------- ---------
Total
======== =========
29
SCHEDULE B
Number of U.S. Firm Number of U.S.
Shares to be Optional Shares to be
Name Purchased Purchased
---- --------- ---------
XX Xxxxx Securities Corporation
Carnegie Inc.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
-------- ---------
Total
======== =========
30
SCHEDULE C
[DIRECTORS, OFFICERS AND SHAREHOLDERS EXECUTING LOCK-UP AGREEMENTS]
31
Exhibit I
Form of Opinion of Issuer's Counsel
____________, 1998
XX Xxxxx International X.X.
Xxxxxxxx Bank A/S
BancBoston Xxxxxxxxx Xxxxxxxx International Ltd.
As representatives of the several
European Managers named in Schedule A to
the Underwriting Agreement
c/o XX Xxxxx International L.P.
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Re: Phytera, Inc.
____ Shares of Common Stock
Dear Ladies and Gentlemen:
We have acted as counsel for Phytera, Inc., a Delaware corporation (the
"Company"), in connection with the sale by the Company and purchase of ____
shares of Common Stock, par value $0.01 per share, of the Company (the "European
Stock") by the several European Managers listed in Schedule A to the
Underwriting Agreement, dated _______,1999 among the Company, XX Xxxxx
International L.P., Carnegie Bank A/S and BancBoston Xxxxxxxxx Xxxxxxxx
International Ltd., as European Representatives of the several European Managers
named therein (the "European Underwriting Agreement"). This opinion is being
furnished pursuant to Section 9(g) of the European Underwriting Agreement. All
capitalized terms not defined herein shall have the meanings ascribed to them in
the U.S. Underwriting Agreement.
We are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as foreign corporation in the
Commonwealth of Massachusetts, and has all power and authority necessary to own
or hold its properties and conduct the businesses in which it is engaged;
2. The Company has an authorized capitalization as set forth in the
Prospectuses, 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 all of the shares of Stock to be issued and sold by the Company to the
European Managers pursuant to the European Underwriting Agreement have been duly
and validly authorized and, when issued and delivered against payment therefor
as provided for in the European Underwriting Agreement, shall be duly and
validly issued, fully paid and non-assessable; 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, non-assessable and are owned directly
or indirectly by the Company, free and clear of all liens,
32
encumbrances, equities or claims; and the only Subsidiaries of the Company are
the Subsidiaries listed on Exhibit 21 to the Registration Statement;
3. All of the shares of Stock conform to the description thereof contained in
the Prospectuses; the certificates for the shares of Stock are in due and proper
form and comply with all applicable statutory requirements, with any applicable
requirements of the Certificate of Incorporation and By-Laws of the Company and
the requirements of the CSE, the CBF and EASDAQ and no holders of shares of
Stock will be subject to personal liability solely as a result of being such a
holder;
4. There are no preemptive or other rights (contractual or statutory) to
subscribe for or to purchase or to convert or exchange any obligations or
capital stock into or for, nor any restriction upon the voting or transfer of,
any of the shares of Stock pursuant to the Company's Certificate of
Incorporation or By-Laws or any agreement or other instrument as to which the
Company is bound. Except as described in or contemplated by the Prospectuses,
to our knowledge, (a) there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and (b) there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such capital stock;
5. To the best of our knowledge without inquiry of court dockets, there are no
legal or governmental proceedings pending to which the Company or any of the
Subsidiaries is a party or of which any property or assets of the Company or any
of its Subsidiaries is the subject; and, to the best of our knowledge, no such
proceedings are threatened or contemplated by governmental authorities or other
third parties;
6. The Company and each of the Subsidiaries own or use under valid licenses all
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectuses as being owned by them or any of them or necessary
for the conduct of their respective businesses, and the Company is not aware of
any claim to the contrary or any challenge by any other person to the rights of
the Company or any of the Subsidiaries with respect to the foregoing. The
Company's business as now conducted and as proposed to be conducted does not and
will not infringe or conflict with any trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other intellectual property or franchise
right of any person;
7. The Company has, and the Company as of the Closing Dates will have, good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned or proposed to be owned by it which is
material to the business of the Company, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Prospectuses
or such as would in the aggregate not have a material adverse effect on the
Company and its subsidiaries considered as a whole; and any real property and
buildings held under lease by the Company or proposed to be leased after giving
effect to the transactions described in the Prospectuses are, or will be as of
each of the Closing Dates, held by it under valid, subsisting and enforceable
leases with such exceptions as would in the aggregate not have a material
adverse effect on the Company and its subsidiaries considered as a whole, in
each case except as are described in the Prospectuses;
8. The Company has full corporate power and authority to enter into the
European Underwriting Agreement and to perform its obligations thereunder
(including to issue, sell and deliver the shares of Stock), and the European
Underwriting Agreement has been duly and validly authorized, executed and
delivered by the Company;
9. To the best of our knowledge after due inquiry, the execution, delivery and
performance of the European Underwriting Agreement and the consummation of the
transactions therein contemplated do not and 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, note agreement or other
agreement or
33
instrument to which the Company is a party or by which it or any of its
properties is or may be bound, the Certificate of Incorporation, By-laws or
other organizational documents of the Company, or any law, order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties or result in the creation of a lien;
10. No consent, approval, authorization or order of any court or regulatory,
administrative or other governmental agency or body is required for the
consummation by the Company of the transactions contemplated by the European
Underwriting Agreement, except such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or under the Securities Act
or the securities or "Blue Sky" laws of any jurisdiction in connection with the
purchase and distribution of the Stock by the European Managers;
11. The Company is in compliance with, and conducts its businesses in
conformity with, all applicable United States federal, state and local laws,
rules and regulations, and the laws, rules and regulations of other applicable
jurisdictions including, but not limited to, those relating to the protection of
human health or the environment or imposing liability or requiring standards of
conduct concerning any Hazardous Materials (as defined in the European
Underwriting Agreement) and the regulations, decisions and rulings of any
governmental agency, court or tribunal; to the best of our knowledge, no
prospective change in any of such federal, state, local or foreign laws, rules
or regulations has been adopted which, when made effective, would have a
material adverse effect on the operations of the Company and its subsidiaries
considered as a whole;
12. The Registration Statement was declared effective under the Securities Act
as of __________, 1999, the Prospectuses were filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations on __________, 1999, and no stop
order or equivalent order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is pending or, to
the best of our knowledge, threatened by the Commission;
13. The Registration Statement and the Prospectuses and any amendments or
supplements thereto comply as to form in all respects with the requirements of
the Securities Act and the Rules and Regulations, and if Rule 434 has been
relied upon, the Prospectuses were not "materially different," as such term is
used in Rule 434, from the prospectuses included in the Registration Statement
at the time it became effective;
14. To the best of our knowledge, there are no contracts or other documents
which are required by the Securities Act or by the Rules and Regulations to be
described in the Prospectuses or filed as exhibits to the Registration Statement
which have not been described in the Prospectuses or filed as exhibits to the
Registration Statement;
15. To the best of our knowledge, other than as described in the Prospectuses,
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 file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act. To the best of our knowledge, no
person or entity has the right to require registration of shares of Common Stock
or other securities of the Company because of the filing or effectiveness of the
Registration Statement or otherwise, except for persons and entities who have
expressly waived such right or who have been given proper notice and have failed
to exercise such right within the time or times required under the terms and
conditions of such right;
16. The descriptions in the Registration Statement and Prospectuses of
statutes, rules, regulations, legal or governmental proceedings, contracts and
other documents are accurate and such descriptions fairly present the
information required to be disclosed; and to the best of our knowledge, there
are no legal or
34
governmental proceedings, statutes, rules or regulations, or any contracts or
documents of a character required to be described in the Registration Statement
or the Prospectuses or to be filed as exhibits to the Registration Statement
which are not described and filed as required;
17. The statements under the captions "Risk Factors Dependence on
Partnerships," "--Future Capital Needs; Uncertainty of Additional Funding," "--
Sourcing Agreements," "--Regulation," "Potential Liability Regarding Hazardous
Materials," "--Control by Management and Existing Stockholders," "--Dilutive
Effect of Series E Convertible Preferred stock Conversion Rate Provision," "--
Shares Eligible for Future Sale and Potential Adverse Effect on Market Price,"
"--Anti-Takeover Effect of Certain Charter and By-Law Provisions and Delaware
Law," "--Year 2000 Compliance," "Business - Corporate Partnerships," "--
Biodiversity Sourcing Agreements," "--Regulation," "--Litigation; Legal
Proceedings," "Management," "Certain Transactions," "Description of Capital
Stock," "Shares Eligible for Future Sale," and "Tax Considerations," to the
extent they reflect matters of federal law arising under the laws of the United
States or legal conclusions relating to such law, accurately summarize and
fairly present the legal and regulatory matters described therein; and
18. The Company and each of the Subsidiaries are not, nor will they be
immediately after receiving the proceeds from the sale of the Stock, 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 foregoing opinion is limited to matters governed by the Federal laws of the
United States of America, the general corporate law of the State of Delaware.
We have acted as counsel to the Company on a regular basis, have acted as
counsel to the Company in connection with previous financing transactions and
have acted as counsel to the Company in connection with the preparation and
filing of the Registration Statement and the Prospectuses, and based on the
foregoing, no facts have come to our attention which lead us to believe that the
Registration Statement or any amendment thereto, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectuses contained or contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Very truly yours,
35
Exhibit II
Form of Opinion of Issuer's U.S. Patent Counsel
____________, 1999
XX Xxxxx International X.X.
Xxxxxxxx Bank A/S
BancBoston Xxxxxxxxx Xxxxxxxx International Ltd.
As representatives of the several
European Managers named in Schedule A to
the Underwriting Agreement
c/o XX Xxxxx International L.P.
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Re: Phytera, Inc.
____ Shares of Common Stock
Dear Ladies and Gentlemen:
This opinion is being delivered pursuant to Section 9(i) of the European
Underwriting Agreement dated _________, 1999, among the Phytera, Inc., a
Delaware corporation (the "Company"), XX Xxxxx International L.P., Carnegie Bank
A/S and BancBoston Xxxxxxxxx Xxxxxxxx International Ltd., as representatives of
the several European Managers named therein (the "European Underwriting
Agreement").
We are of the opinion that:
1. The statements in the Prospectuses under the headings "Risk Factors
Dependence on Patents and Proprietary Rights" and "Business - Patents and
Proprietary Rights," "--In-Licensing Risk," in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein.
2. We do not know of any legal or government proceedings pending relating to
patents, patent applications or intellectual property rights covering
technology of the Company described in the Prospectuses to which the
Company is a party or to which any patents, patent applications or
intellectual property rights covering technology of the Company described
in the Prospectuses are subject, which, if adversely decided, would have a
material adverse effect on the business, financial condition or results of
the operations of the Company and its subsidiaries, taken as a whole, and
we do not know of any such proceedings which are threatened or contemplated
by governmental authorities or others.
36
3. We are unaware of any basis for a finding that the Company does not have
clear title or valid license rights to the patents or patent applications
referenced in the Prospectuses as being owned by or licensed to the Company
and covering the Company's technology, and we are of the opinion that any
such patents are valid and enforceable.
4. Other than as described in the Prospectuses, based upon a review of the
third party rights made known to us and discussions with Company scientific
personnel, we are not aware of any United States patent containing any
valid claim that is or would be infringed, either literally or under the
doctrine of equivalents, by the current or proposed activities of the
Company in the use of any of the technology described in the Prospectuses,
including, without limitation, __________ and _________.
Very truly yours,
37
Exhibit III
Form of Opinion of Issuer's Danish Patent Counsel
____________, 1999
XX Xxxxx International X.X.
Xxxxxxxx Bank A/S
BancBoston Xxxxxxxxx Xxxxxxxx International Ltd.
As representatives of the several
European Managers named in Schedule A to
the Underwriting Agreement
c/o XX Xxxxx International L.P.
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Re: Phytera, Inc.
____ Shares of Common Stock
Dear Ladies and Gentlemen:
This opinion is being delivered pursuant to Section 9(i) of the European
Underwriting Agreement dated _________, 1999, among the Phytera, Inc., a
Delaware corporation (the "Company"), XX Xxxxx International L.P., Carnegie Bank
A/S and BancBoston Xxxxxxxxx Xxxxxxxx International Ltd., as representatives of
the several European Managers named therein (the "European Underwriting
Agreement").
We are of the opinion that:
1. The statements in the Prospectuses under the headings "Risk Factors
Dependence on Patents and Proprietary Rights," "--In-Licensing Risk," and
"Business - Patents and", in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings in
Denmark or with respect to Danish law referred to therein, fairly present
the information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein.
2. We do not know of any legal or government proceedings in Denmark or with
respect to Danish law pending relating to patents, patent applications or
intellectual property rights covering technology of the Company described
in the Prospectuses to which the Company is a party or to which any
patents, patent applications or intellectual property rights covering
technology of the Company described in the Prospectuses are subject, which,
if adversely decided, would have a material adverse effect on the business,
financial condition or results of the operations of the Company and its
subsidiaries, taken as a whole, and we do not know of any such proceedings
which are threatened or contemplated by governmental authorities or others.
38
3. We are unaware of any basis for a finding that the Company does not have
clear title or valid license rights to the Danish patents or patent
applications referenced in the Prospectuses as being owned by or licensed
to the Company and covering the Company's technology, and we are of the
opinion that any such patents are valid and enforceable in Denmark.
4. Other than as described in the Prospectuses, based upon a review of the
third party rights made known to us and discussions with Company scientific
personnel, we are not aware of any Danish patent containing any valid claim
that is or would be infringed, either literally or under the doctrine of
equivalents, by the current or proposed activities of the Company in the
use of any of the technology described in the Prospectuses, including,
without limitation, __________ and _________.
Very truly yours,
39
Exhibit IV
Form of Lock-Up Agreement
______________, 1998
XX Xxxxx Securities Corporation
Carnegie Inc.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
As representatives of the
several U.S. Underwriters
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Phytera, Inc.
__________ Shares of Common Stock
Dear Ladies and Gentlemen:
In order to induce you and your affiliates to enter into certain underwriting
agreements with Phytera, Inc., a Delaware corporation (the "Company"), with
respect to the public offering of shares of the Company's Common Stock, par
value $0.01 per share ( the "Common Stock"), the undersigned hereby agrees that
for a period of 180 days following the date of the final prospectus filed by the
Company with the Securities and Exchange Commission in connection with such
public offering, the undersigned will not, without the prior written consent of
XX Xxxxx Securities Corporation, directly or indirectly, offer, sell, assign,
transfer, encumber, pledge, contract to sell, grant an option to purchase or
otherwise dispose of, other than by operation of law, any shares of the Common
Stock or securities convertible into or exchangeable or exercisable for shares
of the Common Stock, including, without limitation, options, warrants and the
like, which are owned of record or which may be deemed to be beneficially owned
by the undersigned in accordance with the rules and regulations promulgated
under the United States Securities Act of 1933, as the same may be amended or
supplemented from time to time (collectively, the "Securities").
Anything contained herein to the contrary notwithstanding, any person to whom
Securities are transferred from the undersigned shall be bound by the terms of
this Agreement.
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the one-year period following the date of the Company's final
prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of any shares of the Common Stock that are
registered in the name of the undersigned or that may be beneficially owned by
the undersigned.
In order to enable the aforesaid covenants to be enforced, the undersigned
hereby consents to the placing of legends and/or stop-transfer orders with the
transfer agent of the Common Stock with respect to any Securities.
By: _________________________________
Name:
Title:
40
