Exhibit 1.1
BPH DRAFT
1/23/98
SCRIPTGEN PHARMACEUTICALS, INC.
3,000,000 Shares
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
, 1998
UNDERWRITING AGREEMENT
, 1998
SBC WARBURG DILLON READ INC.
XXXXX XXXXX XXXXXX & COMPANY, LLC
as Managing Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Scriptgen Pharmaceuticals, Inc., (the "Company") proposes to issue and
sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 3,000,000 shares (the "Firm Shares") of
Common Stock, $.01 par value (the "Common Stock"), of the Company. In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company
up to an additional 450,000 shares of Common Stock (the "Additional Shares").
The Firm Shares and the Additional Shares are hereinafter collectively
sometimes referred to as the Shares. The Shares are described in the
Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1, including a
prospectus, relating to the Shares. The Company has furnished to you, for use
by the Underwriters and by dealers, copies of one or more preliminary
prospectuses (each thereof being herein called a "Preliminary Prospectus")
relating to the Shares. Except where the context otherwise requires, the
registration statement, as amended when it becomes effective, including all
documents filed as a part thereof, and including any information contained in
a prospectus subsequently filed with the Commission pursuant to Rule 424(b)
under the Act and deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430(A) under the Act, is herein called the
"Registration Statement", and the prospectus, in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the Act or, if no
such filing is required, the form of final prospectus included in the
Registration Statement at the time it became effective, is herein called the
"Prospectus."
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the
Company agrees to sell to the
respective Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company the aggregate number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A attached
hereto in each case at a purchase price of $ per Share. The Company
is advised by you that the Underwriters intend (i) to make a public offering
of their respective portions of the Firm Shares as soon after the effective
date of the Registration Statement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations
and the other terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of Firm Shares to be purchased by each
of them, all or a portion of the Additional Shares as may be necessary to
cover over-allotments made in connection with the offering of the Firm
Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised at any time
(but not more than once) on or before the thirtieth day following the date
hereof, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being
exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time
of purchase); provided, however, that the additional time of purchase shall
not be earlier than the time of purchase (as defined below) nor earlier than
the second business day [FN1] after the date on which the option shall
have been exercised nor later than the tenth business day after the date on
which the option shall have been exercised. The number of Additional Shares to
be sold to each Underwriter shall be the number which bears the same proportion
to the aggregate number of Additional Shares being purchased as the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule A
hereto bears to the total number of Firm Shares (subject, in each case, to
such adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by wire transfer, in immediately
available funds, or certified or official bank check, in New York Clearing
House funds, at the office of SBC Warburg Dillon Read Inc. in New York City,
against delivery of the certificates for the Firm Shares to you for the
respective accounts of the Underwriters. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on , 1998 (unless another
time shall be agreed to by you and the Company or unless postponed in
accordance with the provisions of Section 8 hereof). The time at which such
payment and delivery are actually made is hereinafter sometimes called the
time of purchase. Certificates for the Firm Shares
------------------------
(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
time of purchase. For the purpose of expediting the checking of the
certificates for the Firm Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall
be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
additional time of purchase. For the purpose of expediting the checking of
the certificates for the Additional Shares by you, the Company agrees to make
such certificates available to you for such purpose at least one full
business day preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) when the Registration Statement becomes effective, the
Registration Statement and the Prospectus will fully comply in all
material respects with the provisions of the Act, and the Registration
Statement will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
warranty or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus;
(b) as of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase and the additional time
of purchase, as the case may be, the Company shall have an authorized
capitalization as set forth under the heading entitled "Pro Forma As
Adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization"; all of the issued and outstanding shares of
capital stock including Common Stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full power and authority to own its properties and conduct its
business
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as described in the Registration Statement and the Prospectus, to execute
and deliver this Agreement and to issue and sell the Shares as herein
contemplated;
(c) the Company is duly qualified or licensed by and is in good
standing in each jurisdiction in which it conducts its business and in
which the failure, individually or in the aggregate, to be so licensed or
qualified would have, or would be reasonably likely to have, a material
adverse effect on the operations, business or condition (financial or
otherwise), properties or assets of the Company (a "Material Adverse
Effect"); the Company is in compliance in all material respects with the
laws, orders, rules, regulations and directives issued or administered by
such jurisdictions; and the Company has no subsidiaries;
(d) the Company is not in breach of, or in default under (nor has
any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), its respective charter or
by-laws or in the performance or observance of any obligation, agreement,
covenant or condition contained in any license, lease, indenture,
mortgage, deed of trust, bank loan or credit agreement or other agreement
or instrument to which the Company is a party or by which it is bound,
which breach or default would have, or would be reasonably likely to
have, a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, or result in any breach of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of, or default under),
any provisions of the charter or by-laws, of the Company or under any
provision of any license, lease, indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which the
Company is a party or by which it or its properties may be bound or
affected, or under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company;
(e) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriters as contemplated hereby,
will be validly issued, fully paid and non assessable, and are being
issued free and clear of any pledge, lien, encumbrance, security
interest, preemptive right or other claim or interest, except for any
pledge, lien, encumbrance, security interest, preemptive right or other
claim or interest created by the Underwriters;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in
the Registration Statement and Prospectus and the certificates for the
Shares are in due and proper form and the
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holders of the Shares will not be subject to personal liability by reason
of being such holders;
(h) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares as contemplated hereby other than
registration of the Shares under the Act, clearance of the sale of the
Shares by the National Association of Securities Dealers, Inc. (the
"NASD") and any necessary qualification under the securities or blue sky
laws of the various jurisdictions in which the Shares are being offered
by the Underwriters;
(i) except for rights which have been effectively waived in
writing, no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights,
rights of first refusal or other rights to purchase any of the Shares;
(j) the issuance and sale of Series D Preferred Stock to BioChem
Pharma Inc. ("BioChem") in the offering described in the Prospectus (the
"BioChem Offering") did not require registration under the Act;
(k) the issuance and sale of Common Stock to Hoeschst Xxxxxx
Xxxxxxx ("HMR") in the private placement described in the Prospectus (the
"HMR Private Placement") will not require registration under the Act.
(l) Price Waterhouse LLP, whose reports on the financial statements
of the Company are filed with the Commission as part of the Registration
Statement and Prospectus, are independent public accountants as required
by the Act and the applicable published rules and regulations thereunder;
(m) the Company has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under
any federal, state, local or foreign law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from other
persons, in order to conduct its business, other than licenses,
authorizations, consents, approvals and filings which, if the Company did
not have or failed to make or obtain, would not have, or would be
reasonably likely not to have, a Material Adverse Effect on the Company;
the Company is not in violation of, or in default under, any such
license, authorization, consent or approval or any federal, state, local
or foreign law, regulation or rule or any decree, order or judgment
applicable to the Company the effect of which would have, or would be
reasonably likely to have, a Material Adverse Effect;
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(n) all legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required;
(o) there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its
properties, at law or in equity, or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency which could result in a judgment, decree or order
which would have, or would be reasonably likely to have, a Material
Adverse Effect;
(p) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of the
Company as of the dates indicated and the results of operations and
changes in financial position of the Company for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has
not been (A) any material and unfavorable change, financial or otherwise,
in the business, properties, prospects, regulatory environment, results
of operations or condition (financial or otherwise), present or
prospective, of the Company, (B) any transaction, which is material to
the Company, contemplated or entered into by the Company or (C) any
obligation, contingent or otherwise, directly or indirectly incurred by
the Company which is material to the Company;
(r) the Company has obtained the agreement of each of its directors
and officers and certain stockholders designated by you not to offer,
sell, contract to sell, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock for a period of 180 days after the date
of the Prospectus, subject to certain exceptions.
(s) the Company has filed all federal or state income or franchise
tax returns required to be filed (after giving effect to all permissible
extensions) and has paid all taxes shown thereon as due, and there is no
tax deficiency which has been or may reasonably be asserted against the
Company which would have, or would be reasonably likely to have, a
Material Adverse Effect; and all known tax liabilities are adequately
provided for on the books of the Company;
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(t) the business, operations and facilities of the Company have
been and are being conducted in compliance with all applicable laws,
ordinances, rules, regulations, licenses, permits, approvals, plans,
authorizations or requirements relating to occupational safety and
health, pollution, protection of health or the environment, or
reclamation (including, without limitation, those relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants
or hazardous or toxic substances, materials or wastes into ambient air,
surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of chemical substances, pollutants, contaminants or hazardous or
toxic substances, materials or wastes, whether solid, gaseous or liquid
in nature) or otherwise relating to remediating real property in which
the Company has any interest, whether owned or leased, of any
governmental department, commission, board, bureau, agency or
instrumentality of the United States, any state or political subdivision
thereof or any other foreign jurisdiction and all applicable judicial or
administrative agency or regulatory decrees, awards, judgments and orders
relating thereto (collectively "Environmental Regulations"), except such
failures to comply as would not in the aggregate have a Material Adverse
Effect; and the Company has not received any notice from a governmental
instrumentality or any third party alleging any violation of any
Environmental Regulation or liability thereunder (including, without
limitation, liability for costs of investigating or remediating sites
containing hazardous substances or damages to natural resources) except
in such instances in which the alleged violation cited in any such
notices has been remedied or would not have a Material Adverse Effect;
(u) the Company is not and, upon the sale of the Shares to be
issued and sold in accordance herewith and the investment of the net
proceeds of such sale as set forth under the caption "Use of Proceeds" in
the Registration Statement and the Prospectus, will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), and is not, and will not
upon such sale be, subject to regulation under the Investment Company
Act;
(v) except as described in the Registration Statement and
Prospectus, the Company owns, or has obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights and trade secrets described in the Registration
Statement and Prospectus as being owned or licensed by it, which the
Company reasonably believes are necessary for the conduct of its business
(collectively, "Intellectual Property"). Except as described in the
Registration Statement and Prospectus, the Company (i) believes that
there are no third parties who have or will be able to establish any
rights to any of the Intellectual Property, except for the ownership
rights of the owners of the Intellectual Property which is licensed to
the Company; (ii) to the Company's knowledge there is no infringement by
third parties of
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any of the Intellectual Property; (iii) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any of the Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any Intellectual Property,
and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (v) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary right of others, and the
Company is unaware of any facts which would form a reasonable basis for
any such claim; (vi) to the Company's knowledge there is no patent or
patent application which contains claims that interfere with the issued
or pending claims of any of the patents or patent applications in the
Intellectual Property; and (vii) there is no prior art of which the
Company is aware that may render any patent application in the
Intellectual Property unpatentable which has not been disclosed to the
U.S. Patent and Trademark Office.
(w) As of the date of this Agreement, the Company is not and has
not been required to file any registrations, applications, licenses,
requests for exemptions, permits or other regulatory authorizations with
the U.S. Food and Drug Administration (the "FDA") or any similar state or
local regulatory body in order to conduct its business as it is described
in the Registration Statement and Prospectus;
(x) the animal studies and other preclinical tests conducted by or
on behalf of the Company or in which the Company has participated that
are described in the Registration Statement and Prospectus or the results
of which that are referred to in the Registration Statement or
Prospectus, were and, if still pending, are being conducted in all
material respects in accordance with experimental protocols, procedures
and controls generally used by qualified experts in the preclinical study
of new drugs or diagnostics as applied to comparable products to those
being developed by the Company; the description of the results of such
studies and tests contained in the Registration Statement and Prospectus
are accurate and complete in all material respects; and the Company has
not received any notices or correspondence from the FDA or any other
governmental agency requiring the termination, suspension or modification
(other than such modifications as are normal in the regulations, any such
modifications which are material have been disclosed to you) of any
animal studies or preclinical tests conducted by or on behalf of the
Company or in which the Company has participated that are described in
the Registration Statement or Prospectus or the results of which are
referred to in the Registration Statement or Prospectus;
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(y) To the knowledge of the Company, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or security holders.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such state (except service of process
with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto
after the effective date of the Registration Statement) as the
Underwriters may request for the purposes contemplated by the Act;
(c) to advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable
effort to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement
the Registration Statement or Prospectus and to file no such amendment or
supplement to which you shall object in writing;
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(e) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company shall
send to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar form as may be designated by the Commission, and (iii) such other
information as you may reasonably request regarding the Company;
(f) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act which,
in the judgment of the Company, would require the making of any change in
the Prospectus then being used so that the Prospectus would not include
an untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such Prospectus
as may be necessary to reflect any such change and to furnish you a copy
of such proposed amendment or supplement before filing any such amendment
or supplement with the Commission;
(g) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement
but not later than , 1999, as soon as is reasonably
practicable after the termination of such twelve-month period;
(h) to furnish to you three signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto) and sufficient conformed copies
of the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(i) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest
available unaudited interim financial statements, if any, of the Company
which have been read by the Company's independent certified public
accountants, as stated in their letter to be furnished pursuant to
Section 6(b) of this Agreement;
(j) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(k) to pay all expenses, fees and taxes (other than any transfer
taxes and fees and disbursements of counsel for the Underwriters except
as set forth under
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Section 5 hereof and (iii) and (iv) below) in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto,
and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the issue, sale and delivery of the Shares, (iii) the word
processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Statements of Information and
Powers of Attorney and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Shares on any securities exchange or qualification
of the Shares for quotation on Nasdaq and any registration thereof under
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act"), (vi) any
filing for review of the public offering of the Shares by the NASD and
(vii) the performance of the Company's other obligations hereunder;
(l) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (f) above, a copy of any document proposed to be
filed pursuant to Sections 13, 14 or 15(d) of the Exchange Act;
(m) not to offer, sell, contract to sell, grant any option to sell
or otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock or permit the
registration under the Act of any shares of Common Stock, except for (i)
grants of stock options pursuant to the Company's 1997 Equity Incentive
Plan and Non-Employee Directors Stock Plan, (ii) the registration of the
Shares and the sales to the Underwriters pursuant to this Agreement and
(iii) the issuances of Common Stock to HMR pursuant to the HMR Private
Placement, to BioChem (or its tranferees) in accordance with the Stock
Purchase Agreement filed as Exhibit 10.23 to the Registration Statement,
and upon the exercise of outstanding options, warrants and debentures,
for a period of 180 days after the date hereof, without the prior written
consent of SBC Warburg Dillon Read Inc.; and
(n) to use its best efforts to cause the Common Stock to be listed
on the Nasdaq National Market System.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement
pursuant to the first two
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paragraphs of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time
of purchase (and the several obligations of the Underwriters at the
additional time of purchase are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof
and at the time of purchase (unless previously waived) and at the additional
time of purchase, as the case may be), the performance by the Company of its
obligations hereunder and to the following conditions:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of
Fulbright & Xxxxxxxx L.L.P., counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form satisfactory to Xxxxxxx, Phleger &
Xxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with full corporate power and authority to own
its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver
this Agreement and to issue, sell and deliver the Shares as herein
contemplated;
(ii) the Company is duly qualified to do business as a foreign
corporation, and is in good standing, in each jurisdiction in which
it conducts its business and in which the failure, individually or
in the aggregate, to be so qualified could have a material adverse
effect on the operations, business or condition of the Company;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Shares, when issued and delivered to and paid for by
the Underwriters, will be duly and validly authorized and issued and
will be fully paid and non-assessable;
(v) the Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; based on our
examination of the stock ledger and minute books of the Company and
an officer's certificate to
13
the effect that the consideration for all outstanding shares was
received by the Company in accordance with the applicable
resolutions of the Board, the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid, nonassessable and free of statutory preemptive rights
and, to such counsel's knowledge, other rights to purchase
securities; the Shares when issued will be free of statutory
preemptive rights and, to such counsel's knowledge, contractual
preemptive rights, rights of first refusal or other rights to
purchase any of the Shares; the certificates for the Shares are in
due and proper form under the Delaware General Corporation Law;
(vi) the authorized capital stock of the Company, including the
Shares, conforms as to legal matters in all material respects to the
description thereof contained in the Registration Statement and
Prospectus;
(vii) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) appear on their face to comply as to form in all
material respects with the requirements of the Act;
(viii) the Registration Statement has become effective under the
Act and, to such counsel's knowledge, no stop order proceedings with
respect thereto are pending or threatened under the Act;
(ix) to such counsel's knowledge no person has the right,
contractual or otherwise, which has not been waived, to cause the
Company to register pursuant to the Act, any shares of capital stock
of the Company upon the issue and sale of the Shares to the
Underwriters hereunder;
(x) the issuance and sale of Common Stock to HMR in the HMR
Private Placement did not require registration under the Act.
(xi) the statements under the captions "Risk Factors --
Availability of Preferred Stock for Issuance; Anti-Takeover
Provisions," Business -- Collaborative Arrangements," "Description
of Capital Stock" and in Item 14 of Part II of the Registration
Statement insofar as such statements constitute a summary of
documents referred to therein or matters of law fairly summarize in
all material respects the information called for with respect to
such documents.
(xii) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the
13
Shares as contemplated hereby other than registration of the Shares
under the Act (except such counsel need express no opinion as to any
necessary qualification under the state securities or blue sky laws
of the various jurisdictions in which the Shares are being offered
by the Underwriters or the clearance of the issuance and sale of the
Shares with the NASD);
(xiii) the execution, delivery and performance of this Agreement
by the Company will not conflict with, or result in any breach of,
or constitute a default under (nor constitute any event which with
notice, lapse of time, or both, would constitute a breach of or
default under), any provisions of the charter or by-laws of the
Company or under any provision of any license, lease, indenture,
mortgage, deed of trust, bank loan, credit agreement or other
agreement or instrument to which the Company is a party or by which
its properties may be bound or affected which is filed as an exhibit
to the Registration Statement, or, to such counsel's knowledge,
under any law, regulation, rule, decree, judgment or order
applicable to the Company;
(xiv) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to
be described in the Prospectus which have not been so filed or
described;
(xv) to such counsel's knowledge, there are no actions, suits
or proceedings pending or threatened against the Company or its
properties, at law or in equity or before or by any commission,
board, body, authority or agency which are required to be described
in the Prospectus but are not so described; and
(xvi) such counsel have participated in conferences with
officers and other representatives of the Company (including other
counsel to the Company), representatives of the independent public
accountants of the Company and representatives of the Underwriters
at which the contents of the Registration Statement and Prospectus
were discussed and, although such counsel is not passing upon and
does not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement
or Prospectus (except as and to the extent stated in subparagraph
(vi) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and
other representatives of the Company) nothing has come to the
attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such
supplement,
14
and at all times up to and including the time of purchase or
additional time of purchase, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express
no opinion with respect to the financial statements and schedules
and other financial and statistical data included in the
Registration Statement or Prospectus).
(b) You shall have received from Price Waterhouse LLP, letters
dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by the Managing Underwriters.
(c) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of
Xxxxxx, XxXxxxxxx & Fish, LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, and in a form satisfactory to Xxxxxxx,
Phleger & Xxxxxxxx LLP, counsel for the Underwriters, stating that the
issuance and sale of the Series D Preferred Stock to BioChem in the
BioChem Offering did not require registration under the Act.
(d) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxx
& Xxxxx, patent counsel for the Company, addressed to the Underwriters,
and dated the time of purchase or the additional time of purchase, as the
case may be, and in a form reasonably satisfactory to Xxxxxxx, Phleger &
Xxxxxxxx LLP, counsel for the Underwriters, substantially in the form and
substance of the draft opinions discussed with the Managing Underwriters
and their counsel.
(e) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxx,
Xxxxxx & XxXxxxxx, P.C., regulatory counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, and in a form reasonably satisfactory to
Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Underwriters,
substantially in the form and substance of the draft opinions discussed
with the Managing Underwriters and their counsel.
(f) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Underwriters, dated the
time of purchase or the
15
additional time of purchase, as the case may be, as to the matters
referred to in subparagraphs (iii), (iv) and (viii) of paragraph (a) of
this Section 6.
In addition, such counsel shall state that such counsel have participated
in conferences with officers and other representatives of the Company,
counsel for the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at which
the contents of the Registration Statement and Prospectus and related matters
were discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus (except as
to matters referred to under subparagraph (vii) of paragraph (a) of this
Section 6), on the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and other representatives of the
Company), no facts have come to the attention of such counsel which lead them
to believe that the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date or any supplement thereto as
of its date contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no comment
with respect to the financial statements and schedules and other financial
and statistical data included in the Registration Statement or Prospectus).
(g) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(h) The Registration Statement shall have become effective not
later than 5:00 P.M., New York City Time or, in the case of a
registration statement filed pursuant to Rule 462(b) under the Act, not
later than 10:00 P.M., New York City Time, on the date of this Agreement;
if the filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b) under the Act, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act, at or
before 5:00 P.M., New York City Time, on the second full business day
after the date of this Agreement; provided, however, that the Company and
you and any group of Underwriters, including you, who have agreed
hereunder to purchase in the aggregate at least 50% of the Firm Shares
may from time to time agree on a later date.
(i) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section
16
8(d) or 8(e) of the Act; (ii) the Registration Statement and all
amendments thereto, or modifications thereof, if any, shall not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and (iii) the Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
(j) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material and unfavorable change, financial or otherwise (other than as
referred to in the Registration Statement and Prospectus), in the
business, condition or prospects of the Company shall occur or become
known and (ii) no transaction which is material and unfavorable to the
Company shall have been entered into by the Company.
(k) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of two of its
executive officers to the effect that the representations and warranties
of the Company as set forth in this Agreement and the conditions set
forth in paragraph (i) and paragraph (j) have been met and that they are
true and correct as of each such date.
(l) You shall have received the signed agreements described in
Section 3(r) of this Agreement.
(m) The Company shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in
the Registration Statement and the Prospectus as of the time of purchase
and the additional time of purchase, as the case may be, as you may
reasonably request.
(n) The Company shall have performed such of its obligations under
this Agreement as are to be performed by the terms hereof at or before
the time of purchase and at or before the additional time of purchase, as
the case may be.
(o) The Shares shall have been approved for listing on the Nasdaq
National Market System, subject only to notice of issuance at or prior to
the time of purchase.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall
have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties
hereto have executed and delivered this Agreement.
17
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and Prospectus, (y) there has been any material adverse and unfavorable change,
financial or otherwise (other than as referred to in the Registration Statement
and Prospectus), in the business, condition or prospects of the Company, which
would, in your judgment or in the judgment of such group of Underwriters, make
it impracticable to market the Shares, or (z) if, at any time prior to the time
of purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange, or if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets of the United
States as, in your judgment or in the judgment of such group of Underwriters, to
make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this agreement as
provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(k), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. If any Underwriter shall
default in its obligation to take up and pay for the Firm Shares to be
purchased by it hereunder and if the number of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay
for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Shares they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the consent
of each Underwriter so designated or, in the event no such designation is
made, such Shares shall be taken up and paid for by all non-defaulting
Underwriters pro rata in
18
proportion to the aggregate number of Firm Shares set opposite the names
of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it
will not sell any Firm Shares hereunder unless all of the Firm Shares are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the Underwriters
or by the Company for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Company or you shall have the right to
postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and include
any Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
9. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its directors and officers, and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any loss, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act or otherwise insofar as such loss, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company)
or in a Prospectus (the term Prospectus for the purpose of this Section 9
being deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required
to be stated in either such Registration Statement or Prospectus or necessary
to make the statements made therein not misleading, except insofar as any
such loss, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by any Underwriter
through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or arises out
of or is based upon any omission or alleged omission to state a material fact
in connection with such information required to be stated in either such
Registration Statement or Prospectus or necessary to make such information
not misleading, provided, however, that the indemnity agreement contained in
this subsection (a) with respect to any Preliminary Prospectus or amended
Preliminary Prospectus shall not inure
19
to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
expense, liability or claim purchased the Shares which is the subject thereof
if the Prospectus corrected any such alleged untrue statement or omission and
if such Underwriter failed to send or give a copy of the Prospectus to such
person at or prior to the written confirmation of the sale of such Shares to
such person.
If any action is brought against an Underwriter or any such person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly notify
the Company in writing of the institution of such action and the Company
shall assume the defense of such action, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses, provided, however, that the omission to so notify the Company shall
not relieve the Company from any liability which they may have to any
Underwriter or any such person or otherwise. Such Underwriter or such person
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense
of such action or the Company shall not have employed counsel to have charge
of the defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the Company and paid as incurred (it
being understood, however, that the Company shall not be liable for the
expenses of more than one separate counsel in any one action or series of
related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). The Company shall not be liable for any
settlement of any such claim or action effected without its written consent
but if settled with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Underwriter and any such person from and
against any loss or liability by reason of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any loss, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Act or otherwise, insofar
as such loss, expense, liability or claim arises out of or is based upon any
20
untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use with reference
to such Underwriter in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company)
or in a Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated either in such Registration Statement or Prospectus or
necessary to make such information not misleading.
If any action is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Company or such person shall promptly notify
such Underwriter in writing of the institution of such action and such
Underwriter shall assume the defense of such action, including the employment
of counsel reasonably satisfactory to such indemnified party and payment of
all fees and expenses, provided, however, that the omission to so notify such
Underwriter shall not relieve such Underwriter, from any liability which they
may have to the Company or any such person or otherwise. The Company or such
person shall have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the Company
or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of
such action or such Underwriter shall not have employed counsel to have
charge of the defense of such action or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to such
Underwriter (in which case such Underwriter shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events such fees and expenses
shall be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more
than one separate counsel in any one action or series of related actions in
the same jurisdiction representing the indemnified parties who are parties to
such action). No Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of such Underwriter but
if settled with the written consent of such Underwriter, such Underwriter
agrees to indemnify and hold harmless the Company and any such person from
and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(c) If the indemnification provided for in this Section 9 is unavailable to
an indemnified party under subsections (a) and (b) of this Section 9 in respect
of any losses,
21
expenses, liabilities or claims referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the Company on the one hand and of
the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information supplied
by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the losses, expenses, liabilities and claims referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
(d) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriter's
obligations to contribute pursuant to this Section 9 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section 9
and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its directors or
officers or any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act,
22
or by or on behalf of the Company, its directors and officers or any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Company, against
any of the Company's officers and directors in connection with the issuance
and sale of the Shares, or in connection with the Registration Statement or
Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if
to the Underwriters, shall be sufficient in all respects if delivered or sent
to SBC Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
Attention: Syndicate Department and, if to the Company, shall be sufficient
in all respects if delivered or sent to the Company at the offices of the
Company at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx
X. Xxxxxx, President and Chief Executive Officer.
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York. The Section headings in
this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.
12. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and the
controlling persons, directors and officers referred to in Section 9 hereof,
and their respective successors, assigns, executors and administrators. No
other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any
right under or by virtue of this Agreement.
13. Counterparts. This agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
14. Miscellaneous. SBC Warburg Dillon Read Inc., an indirect, wholly
owned subsidiary of Swiss Bank Corporation, is not a bank and is separate
from any affiliated bank, including any U.S. branch or agency of Swiss Bank
Corporation. Because SBC Warburg Dillon Read Inc. is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by SBC
Warburg Dillon Read Inc. are not deposits, are not insured by the Federal
Deposit Insurance Corporation, are not guaranteed by a branch or agency, and
are not otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of SBC Warburg Dillon Read Inc. may have lending
relationships with issuers of securities underwritten or privately placed by
SBC Warburg
23
Xxxxxx Read Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by SBC Warburg Dillon Read Inc. will disclose the existence
of any such lending relationships and whether the proceeds of the issue will
be used to repay debts owed to affiliates of SBC Warburg Dillon Read Inc.
Without your prior written approval, the U.S. branches and agencies of
Swiss Bank Corporation will not share with SBC Warburg Dillon Read Inc. any
non-public information concerning you, and SBC Warburg Dillon Read Inc. will
not share any non-public information received from you with any of such U.S.
branches and agencies of Swiss Bank Corporation.
24
If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Company and the Underwriters, severally.
Very truly yours,
SCRIPTGEN PHARMACEUTICALS, INC.
By
-----------------------------
Title:
Accepted and agreed to as of the
date first above written, on
behalf of themselves and the other
several Underwriters named in
Schedule A
SBC WARBURG DILLON READ INC.
XXXXX XXXXX XXXXXX & COMPANY, LLC
By: SBC WARBURG DILLON READ INC.
By:
-----------------------------
Title:
By:
-----------------------------
Title
25
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
----------- -----------
SBC WARBURG DILLON READ INC.
XXXXX XXXXX XXXXXX & COMPANY, LLC
---------
Total.......... 3,000,000
---------
---------
