EXHIBIT 1.1
BIOMARIN PHARMACEUTICAL INC.
Common Stock
(par value $0.001 per share)
------------
U.S. Underwriting Agreement
------------
July_______, 1999
Bank X. Xxxxxxxx & Co AG
U.S. Bancorp Xxxxx Xxxxxxx Inc.
(the "Global Coordinators")
As representatives of the several
U.S. Underwriters and Vontobel
Securities Ltd.
c/o U.S. Bancorp
Xxxxx Xxxxxxx Inc.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
The Underwriters named in Schedule 1 hereto
(the "U.S. Underwriters") and Vontobel Securities Ltd.
Dear Sirs:
This agreement relates to the proposed offer and sale of up to 4,500,000 shares
of common stock, par value $0.001 per share (the "Common Stock") of Biomarin
Pharmaceutical Inc., a Delaware corporation (the "Company") pursuant to the
issuance and sale by the Company of shares of Common Stock, as follows (the
"Offering"):
(a) On April 22, 1999, at a meeting of the Board of Directors of the Company
duly called and held at which a quorum was present throughout, the Board of
Directors duly adopted resolutions authorizing the issuance and sale of an
aggregate of ______________ shares of Common Stock (the "U.S. New Shares")
by the Company.
(b) The Company proposes, subject to the terms and conditions stated herein, to
issue and sell the U.S. New Shares to the U.S. Underwriters as set out
herein.
(c) In addition, the Company proposes, subject to the terms and conditions
stated herein, to sell to the U.S. Underwriters, at the election of the
Global Coordinators, up to _____________ additional shares of Common Stock
(the "U.S. Greenshoe Shares"; and together with the U.S. New Shares, the
"U.S. Offered Shares").
(d) The total of the U.S. Offered Shares and the International Offered Shares
shall not exceed the 4,500,000 shares of Common Stock sold pursuant to the
Offering.
1. Sale, Underwriting, Purchase and Listing
----------------------------------------
Subject to the terms and conditions herein set forth:
(a) The Company agrees to sell to each U.S. Underwriter named in Schedule
1 hereto the U.S. New Shares with effect from the Closing Date (as
defined in Section 4 hereof) at a price to be agreed between the
Company and the Global Coordinators pursuant to a separate pricing
agreement (the "Offer Price"); and each such U.S. Underwriter agrees,
severally and not jointly, to purchase such number of U.S. New Shares
as is set forth for such U.S. Underwriter in Schedule 1 from the
Company at the Offer Price.
(b) The Company mandated Bank X. Xxxxxxxx & Co AG ("Bank Vontobel") to
make an application on its behalf for the shares of Common Stock of
the Company issued and outstanding from time to time to be listed for
trading with official quotation (Hauptsegment) on the SWX New Market;
and Bank Vontobel agreed to make such application and to use its best
efforts to obtain such listing as promptly as possible. The Company
agrees to provide Bank Vontobel in due time with all documents and
information requested by Bank Vontobel to enable Bank Vontobel to make
such an application with the SWX New Market.
3
(c) Greenshoe Shares
(i) To the extent that in connection with the Offering any
transactions are carried out for the purpose of covering over-
allotments in the sale of the U.S. New Shares or in
connection with bona fide stabilization activities in
accordance with local laws and regulations, and the Global
Coordinators determine on behalf of the U.S. Underwriters
that additional shares of Common Stock are needed in
connection with such transaction, the Company shall sell the
U.S. Greenshoe Shares to the Global Coordinators on behalf of
the U.S. Underwriters such number of U.S. Greenshoe Shares as
shall be requested by the Global Coordinators at the Offer
Price.
(ii) The Global Coordinators shall notify the Company no later
than 10.00 a.m. (Zurich time) on [____________ ___,] 1999
(the 30th day after the date of this Agreement) of the number
of U.S. Greenshoe Shares which will be required and the time
and date for payment for and delivery of such Greenshoe
Shares (which time and date shall not be less than two (2)
and not more than fifteen (15) business days after the
exercise of such option, nor in any event prior to the
Closing Date).
(iii) Each U.S. Underwriter agrees, severally and not jointly, that
such U.S. Underwriter will purchase its pro rata share (based
on its aggregate obligation to purchase New Shares) of any
U.S. Greenshoe Shares at the Offer Price, subject to such
adjustments as the Global Coordinators in their absolute
discretion shall determine.
(d) In consideration of the agreement by the U.S. Underwriters to purchase
the U.S. Offered Shares as set forth above, the Company shall pay to
the U.S. Underwriters aggregate management, selling and underwriting
commissions of ___ per cent of the Offer Price for each U.S. Offered
Share purchased from it (the "Managers' Commission"). The Global
Coordinators shall be entitled to deduct the Managers' Commission from
the Offer Price to be paid for the U.S. Offered Shares pursuant to
Section 4 of this Agreement.
(e) The Company understands that the U.S. Underwriters and Vontobel
Securities Ltd. propose to make a public offering of the U.S. Offered
Shares in the United States as soon as the Global Coordinators deem
advisable after this Agreement has been executed and delivered. Bank
Vontobel will sell U.S. Offered Shares only through its affiliate,
Vontobel Securities Ltd. Any U.S. Offered Shares so sold by Vontobel
Securities Ltd. will be purchased by Vontobel Securities Ltd. from
Bank Vontobel at
4
the Closing Date (or the Greenshoe Closing Date as the case may be)
at a per share purchase price equal to the Offer Price or such
Purchase Price less an amount to be mutually agreed upon by Vontobel
Securities Ltd. and Bank Vontobel which amount shall not be greater
than the Managers' Commission.
(f) It is also understood that the Company is concurrently entering into
an agreement dated the date hereof (the "International Underwriting
Agreement") providing for the sale by the Company of an aggregate of
____________ shares of Common Stock (the "International Offered
Shares"), including the overallotment option thereunder, through
arrangements with certain managers in Switzerland and elsewhere
outside the United States (the "International Managers") for whom Bank
Vontobel and U.S. Bancorp Xxxxx Xxxxxxx Inc. are acting as lead
managers and Global Coordinators. Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement
and the International Underwriting Agreement are hereby expressly made
conditional on one another. The U.S. Underwriters hereunder and the
International Managers are simultaneously entering into an Agreement
between International and U.S. Underwriting Syndicates (the "Agreement
between Syndicates") which provides, among other things, for the
transfer of shares of Common Stock between the two syndicates. Except
as the context may otherwise require, references hereunder to the
Offered Shares shall include all the shares of Common Stock which may
be sold pursuant to this Agreement or the International Underwriting
Agreement.
(g) In connection with the offer and sale of the International Offered
Shares, the Company has prepared a preliminary international
prospectus dated July 6, 1999 (the "Initial International
Prospectus"), and will prepare a final international prospectus,
expected to be dated ____________ ___, 1999 (the "International
Prospectus"), each in English, for use in connection with the offer
and sale of such shares. The Company hereby confirms that it has
authorized the use by the International Managers of the International
Preliminary Prospectus and the International Prospectus, as the same
may be amended or supplemented by the Company from time to time, in
connection with the offer and sale of such shares, for the period
during which a prospectus is required by applicable law to be
delivered in connection with sales of such shares.
(h) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-77701)
under the Securities Act of 1933, as amended (the "1933 Act") covering
the registration of the U.S. Offered Shares and any shares of Common
Stock sold hereunder that are sold or resold in the United States in
transactions not exempt from registration under Section
5
4(1) or 4(3) of the 1933 Act, including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of
this Agreement, the Company will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations") and paragraph (b) of Rule 424
("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company
has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement
at the time it became effective but that is deemed to be part of
such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before
such registration statement became effective, and any prospectus
that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to
the execution and delivery of this Agreement, is herein called a
"U.S. Preliminary Prospectus." Such registration statement,
including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information or the Rule
434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b)
of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the
U.S. Underwriters and Vontobel Securities Ltd. for use in connection
with the offering of the Offered Shares is herein called the "U.S.
Prospectus." If Rule 434 is relied on, the term "U.S. Prospectus"
shall refer to the U.S. Preliminary Prospectus dated ____________
___, 1999 together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the
Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any U.S. Preliminary 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"). The Company hereby confirms that it has
authorized the use by the U.S. Underwriters and Vontobel Securities
Ltd. of each U.S. Preliminary Prospectus and the U.S. Prospectus, as
the same may be amended or supplemented by the Company from time to
time, in connection with the offer and sale of the U.S. Offered
Shares and by underwriters and dealers for purposes of resales of
shares of Common Stock in the United States that are not exempt from
Section 4(1) or 4(3) of the Securities Act. The U.S. Prospectus and
the International
6
Prospectus are herein collectively called the "Prospectuses" and
individually each, a "Prospectus."
2. Representations and Warranties
------------------------------
(a) The Company represents and warrants, as of the date hereof, to each
U.S. Underwriter and Vontobel Securities Ltd. that:
(i) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements
thereto complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did 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; any U.S. Prospectus, any
U.S. Preliminary Prospectus and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their
respective times of issuance and at the Closing Date (and, if any
Greenshoe Shares are purchased, at the Greenshoe Closing Date),
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
Neither any Prospectus nor any amendments or supplements thereto
(including any prospectus wrapper), at the time such Prospectus
or any such amendment or supplement was issued and at the Closing
Date (and, if any Greenshoe Shares are purchased, at the
Greenshoe Closing Date), included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with
the requirements of Rule 434 and the U.S. Prospectus shall not be
"materially different", as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time
it became
7
effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or any Prospectus made in reliance
upon and in conformity with information furnished to the
Company in writing by any U.S. Underwriter or Vontobel
Securities Ltd. through the Global Coordinators expressly for
use in the Registration Statement or any such Prospectus.
Each U.S. Preliminary Prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each U.S.
Preliminary Prospectus and the U.S. Prospectus delivered to
the U.S. Underwriters and Vontobel Securities Ltd. for use in
connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in each Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement
and the International Underwriting Agreement, pursuant to
employee benefit plans referred to in each Prospectus,
pursuant to the conversion of the Company's preferred stock
on the Closing Date as described in each Prospectus or
pursuant to the exercise of options or warrants referred to
in each Prospectus). The shares of issued and outstanding
capital stock of the Company, have been duly authorized and
validly issued, fully paid and non-assessable and have been
issued in compliance with all U.S. federal and state
securities laws; none of the outstanding shares of capital
stock of the Company, was issued in violation of the
preemptive or other similar rights of any security holder of
the Company and such security holders are not subject to
personal liability by reason of being such holders;
(iii) Upon delivery of the Offered Shares to be delivered to the
U.S. Underwriters pursuant to Section 4 of this Agreement and
to the International Managers pursuant to the International
Underwriting Agreement on the Closing Date or Greenshoe
Closing Date, respectively, and payment therefore as provided
herein and therein, it will have delivered good and valid
title thereto to the U.S. Underwriters and the International
Managers, free and clear of all liens, pledges, encumbrances,
equities and claims; and there exists no agreement or
8
arrangement with respect to the voting, sale or disposition
of the Offered Shares sold by it;
(iv) The Offered Shares to be purchased by the U.S. Underwriters
and the International Managers from the Company have been
duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and the International
Underwriting Agreement and, when issued and delivered by the
Company pursuant to this Agreement and the International
Underwriting Agreement against payment of the consideration
set forth herein and therein, will be validly issued and
fully paid and non-assessable; the Common Stock conforms to
all statements relating thereto contained in the Prospectuses
and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Offered
Shares will be subject to personal liability by reason of
being such a holder; and the issuance of the Offered Shares
is not subject to the preemptive or other similar rights of
any security holder of the Company;
(v) Except as described in each of the Prospectuses, (i) there
are no outstanding securities of the Company convertible into
or exchangeable for, or warrants, rights or options to
purchase from the Company, or obligations of the Company to
issue, the Common Stock or any other class of shares of the
Company; (ii) all of the issued and outstanding capital stock
of each subsidiary of the Company (each a "Subsidiary") has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or
indirectly, free and clear of any liens, pledges,
encumbrances, equities or claims; and (iii) none of the
outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of
any security holder of such Subsidiary. The Subsidiaries of
the Company other than Glyko, Inc., considered in the
aggregate as a single Subsidiary do not constitute a
"significant subsidiary" as defined in Rule 1-02 of
Regulation S-X;
(vi) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement
are independent public accountants as required by the 1933
Act and the 1933 Act Regulations;
(vii) Except as described in each of the Prospectuses, there has
been no action, suit, legal or arbitration proceeding by or
against the Company or any of its Subsidiaries within the
last two years and there is no such proceeding pending that
has had, and the Company does not believe that there are any
9
threatened legal or arbitration proceedings by or against it
or any of its Subsidiaries which would be reasonably likely,
singly or in the aggregate, to have a material adverse
effect on the business, financial condition or business
prospects of the Company and its Subsidiaries taken as a
whole a ("Material Adverse Effect");
(viii) Except as set forth in the Prospectus, the Company and its
Subsidiaries own or have had licensed to them or otherwise
have the benefit or use under the authority of the owners
thereof of all patents, patent rights, inventions,
trademarks, service marks, trade names and copyrights (in
each case, registered or not) which are necessary for the
conduct of the business of the Company and its Subsidiaries
as currently conducted as described in each Prospectus;
there are no unresolved claims that the Company or any of
its Subsidiaries has infringed the patents, patent rights,
inventions, trademark rights, service marks, trade names or
copyrights of others and, to the best knowledge of the
Company, no persons are infringing the patents, patent
rights, inventions, trademark rights, service marks, trade
names or copyrights of the Company or any of its
Subsidiaries, which would be reasonably likely to, singly or
in the aggregate, have a Material Adverse Effect;
(ix) Each of the Company and each of its Subsidiaries has all
material concessions, licenses, franchises, permits,
authorizations, approvals and orders of and from all
governmental regulatory officials and bodies that are
necessary to own or lease its properties and to conduct its
business as currently conducted;
(x) No material labor dispute with the employees of the Company
or any of its Subsidiaries exists or is threatened or
imminent;
(xi) The Company and each of its Subsidiaries has obtained any
permits, consents and authorizations required to be obtained
by it under laws or regulations relating to the protection
of the environment or concerning the handling, storage,
disposal or discharge of toxic materials (collectively
"Environmental Laws") in order to conduct their business as
described in the Prospectuses, and any such permits,
consents and authorizations remain in full force and effect.
The Company and each of its Subsidiaries is in compliance
with the Environmental Laws in all material respects, and
there is no pending or, to the Company's knowledge,
threatened, action or proceeding against the Company or any
or its Subsidiaries alleging violations of the Environmental
Laws;
10
(xii) The Company is not currently prohibited from paying any
dividends or from making any other distribution on the
Company's or such Subsidiary's capital stock, respectively,
out of positive retained earnings or from repaying to the
Company or its stockholders, respectively, any loans or
advances to such Subsidiary from the Company or to the
Company from such stockholders, as the case may be;
(xiii) Neither the Company nor any of its Subsidiaries is (A) in
violation of its charter or by-laws or (B) except as
described in each of the Prospectuses, in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any material
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any Subsidiary is
subject;
(xiv) Since the earlier of (i) the respective dates as of which
the information is given in the Registration Statement and
each Prospectus or (ii) March 31, 1999, (A) neither the
Company nor any of its Subsidiaries has sustained any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or
governmental action, order or decree, (B) there has not been
any change in the capital stock of the Company, or any
increase in long-term debt of the Company and its
Subsidiaries taken as a whole (except (i) as described in
each Prospectus, (ii) pursuant to this Agreement and the
International Underwriting Agreement, (iii) pursuant to
grants under employee benefit plans referred to in each
Prospectus, (iv) pursuant to the conversion of the Company's
preferred stock on the Closing Date as described in each
Prospectus or (v) pursuant to the exercise of options or
warrants referred to in each Prospectus) and (C) there has
not been any material adverse change, or any development
reasonably likely to result in a material adverse change, in
or affecting the condition (financial or otherwise),
business, business prospects, stockholders' equity or
results of operations of the Company and its Subsidiaries
taken as a whole;
(xv) The financial statements included in the Registration
Statement and each Prospectus, together with the related
schedules and notes, present fairly in all material respects
the financial position of (i) the Company and its
subsidiaries
11
and (ii) Glyko, Inc. at the dates indicated and the
statements of operations, stockholders' equity and cash
flows of (i) the Company and its subsidiaries and (ii)
Glyko, Inc. for the periods specified; said financial
statements have been prepared in conformity with United
States generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods
involved. No other financial statements or schedules are
required to be included in the Registration Statement and
each Prospectus. The supporting schedules included in the
Registration Statement present fairly in accordance with
GAAP the information required to be stated therein. The
selected financial data and the summary financial data
included in each Prospectus have been compiled on a basis
consistent with that of the audited financial statements
included in the Registration Statement;
(xvi) Each of the Company and its Subsidiaries has been duly
organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of
incorporation. The Company has full corporate power and
authority to enter into this Agreement and the International
Underwriting Agreement and consummate the transactions
contemplated herein and therein (in the case of the Company)
and to own its properties and conduct its business as
currently conducted, and has been duly qualified as a
foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction other
than its jurisdiction of incorporation in which it owns or
leases properties or conducts any business so as to require
such qualification, except where the failure to be so
qualified or to be in good standing would not, individually
or in the aggregate, be reasonably likely to have a Material
Adverse Effect;
(xvii) Each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered
by the Company and (other than the provisions of Section 10
hereof, as to which the Company makes no representation)
constitutes the legal, valid, binding and enforceable
obligation of the Company, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity;
(xviii) The execution, delivery and performance of this Agreement
and the International Underwriting Agreement by the Company
and the consummation of the transactions contemplated herein
(including the issuance and sale of the Offered Shares and
the use of the proceeds from the sale of the Offered Shares
as described in each Prospectus under the heading
12
"Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the International
Underwriting Agreement have been duly authorized by all
necessary corporate action and do not, whether with or
without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary
pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not, singly or in the aggregate, be
reasonably likely to result in a Material Adverse Effect or
impair the ability of the Company to consummate, or
otherwise materially adversely affect, the transactions
contemplated herein and in the International Underwriting
Agreement), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or
any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company or any Subsidiary;
(xix) Other than as may be required under the securities laws of
jurisdictions outside the United States, no filing with, or
authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency is necessary or required
for the performance by the Company of its obligations
hereunder or under the International Underwriting Agreement,
in connection with the offering, issuance or sale of the
Offered Shares hereunder or under the International
Underwriting Agreement or the consummation of the
transactions contemplated by this Agreement or the
International Underwriting Agreement, except (i) such as
have been already obtained and are in full force and effect
or as may be required under the 1933 Act or the 1933 Act
Regulations or United States state securities laws, (ii)
such as have been obtained from the National Association of
Securities Dealers Inc., (iii) such as
13
have been obtained under the laws and regulations of
jurisdictions outside the United States in which the Offered
Shares are offered, (iv) the approval for listing of the
Common Stock by the SWX New Market, or (v) as may be
required by the U.S. Securities and Exchange Commission for
the performance of the Company's obligations under Section
10 hereof;
(xx) There are no contracts or documents which are required to be
described in the Registration Statement or each Prospectus
or to be filed as exhibits to the Registration Statement
which have not been so described or filed as required;
(xxi) The Company is not, and upon the issuance and sale of the
Offered Shares as contemplated herein and in the
International Underwriting Agreement and the application of
the net proceeds therefrom as described in each Prospectus
will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended;
(xxii) There are no persons with registration rights or other
similar rights to have any securities of the Company
registered pursuant to the Registration Statement or, except
as described in each Prospectus, otherwise registered by the
Company under the 1933 Act;
(xxiii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified
as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder, or is exempt therefrom;
(xxiv) Except as disclosed in each Prospectus and except as may be
required by the laws of jurisdictions outside the United
States, no issue, stamp or other transactional duty or tax
is payable by or on behalf of any purchaser of Offered
Shares from the Company or the U.S. Underwriters or the
International Managers in connection with the sale and
delivery by it of Offered Shares to or for the respective
accounts of such purchaser or the U.S. Underwriters in the
manner contemplated by this Agreement or the International
Managers in the manner contemplated by the International
Underwriting Agreement;
(xxv) The Company and its Subsidiaries have good and marketable
title to all real property owned by the Company and its
Subsidiaries and good title to all other material properties
owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any
14
kind except such as (a) are described in each Prospectus
or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere
with the use made and proposed to be made of such
property by the Company or any of its Subsidiaries; and
all of the leases and subleases material to the business
of the Company and its Subsidiaries, considered as one
enterprise, and under which the Company or any of its
Subsidiaries holds properties described in each
Prospectus, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material
claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary
under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or
such Subsidiary to the continued possession of the leased
or subleased premises under any such lease or sublease;
(xxvi) The Company and its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns
required to be filed and are not in default in the
payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto, other
than any which the Company or any of its subsidiaries is
contesting in good faith. The Company has made adequate
charges, accruals and reserves in the applicable
financial statements referred to in subsection (xv) above
in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has
not been finally determined;
(xxvii) The Company has not distributed and will not distribute
any prospectus or other offering material in connection
with the offering and sale of the U.S. Offered Shares
other than any U.S. Preliminary Prospectus or the U.S.
Prospectuses or other materials permitted by the 1933 Act
to be distributed by the Company;
(xxviii) The U.S. Offered Shares have been conditionally approved
for inclusion on the Nasdaq National Market subject only
to official notice of issuance and, on the date the
Registration Statement became or becomes effective, the
Company's Registration Statement on Form 8-A or other
applicable form under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), became or will
become effective;
(xxix) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance
15
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;
(xxx) Other than as contemplated by this agreement, the Company
has not incurred any liability for any finder's or
broker's fee or agent's commission in connection with the
execution and delivery of this agreement or the
consummation of the transactions contemplated hereby;
(xxxi) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization
or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Common Stock;
(xxxii) There are no business relationships or related party
transactions involving the Company or any subsidiary or
any other person required to be described in the
Prospectus which have not been described as required;
(xxxiii) Neither the Company nor any of its subsidiaries nor, to
the best of the Company's knowledge, any employee or
agent of the Company or any subsidiary, has made any
contribution or other payment to any official of, or
candidate for, any federal, state or foreign office in
violation of any law or of the character required to be
disclosed in the Prospectus;
(xxxiv) The Company and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder
(collectively, "ERISA") established or maintained by the
Company, its subsidiaries or their "ERISA Affiliates" (as
defined below) are in compliance in all material respects
with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of
organizations described in Sections 414(b),(c),(m) or (o)
of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the
"Code") of which the Company or such subsidiary is a
member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with
respect to any "employee benefit plan"
16
established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No
"employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were
terminated, would have any "amount of unfunded benefit
liabilities" (as defined under ERISA). Neither the
Company, its subsidiaries nor any of their ERISA
Affiliates has incurred or reasonably expects to incur
any liability under (i) Title IV of ERISA with respect to
termination of or withdrawal from, any "employee benefit
plan" or (ii) Sections 412, 4971, 4975 or 4980B of the
Code. Each "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of
their ERISA Affiliates that is intended to be qualified
under Section 40 1 (a) of the Code is so qualified and
nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification;
and
(xxxv) Except as set forth in the Prospectus, the Company is
reviewing its computer systems, software products and
other business systems to evaluate whether they will
experience any error or interruption as a result of an
inability to properly recognize the Year 2000 (the "Year
2000 Problem") and is assessing whether the Company's
suppliers, providers, contractors and collaborators will
experience any Year 2000 Problems that will adversely
affect the Company. Except as disclosed in the
Prospectus, the Company is not aware that it will
experience any Year 2000 Problems or that any of its
suppliers, providers, contractors or collaborators will
experience any problems in connection with the Year 2000
Problem that will adversely affect the Company.
3. Offering by the U.S. Underwriters
---------------------------------
It is understood that the U.S. Underwriters and Vontobel Securities Ltd.
propose to offer the U.S. Offered Shares for sale to the public as set
forth in the U.S. Prospectus.
4. Delivery and Payment
--------------------
(a) The U.S. Offered Shares will be delivered by the Company to the U.S.
Underwriters against payment of the purchase price, in U.S. dollars,
therefor by certified or official bank check or other next day funds
payable to the order of the Company, at the offices of U.S. Bancorp
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable, at 9:00 a.m. Central time on the third (or if the U.S.
Offered Shares are priced, as contemplated by Rule 15c6-1(c) under the
Exchange Act, after 4:30 p.m. Eastern time,
17
the fourth) full business day following the date hereof, or at such
other time and date as you and the Company determine pursuant to
Rule 15c6-1(a) under the Exchange Act, such time and date of
delivery being herein referred to as the "Closing Date." If the
Global Coordinators so elect, delivery of the U.S. Offered Shares
may be made by credit through full fast transfer to the accounts at
The Depository Trust Company designated by the Global Coordinators.
Certificates representing the U.S. Offered Shares, in definitive
form and in such denominations and registered in such names as you
may request upon at least two business days' prior notice to the
Company, will be made available for checking and packaging not later
than 10:30 a.m., Central time, on the business day next preceding
the Closing Date at the offices of U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or
such other location as may be mutually acceptable.
(b) The U.S. Greenshoe Shares will be delivered by the Company, as
appropriate, to you for the accounts of the U.S. Underwriters against
payment of the purchase price therefor by certified or official bank
check or other next day funds payable to the order of the Company, as
appropriate, at the offices of U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such
other location as may be mutually acceptable at 9:00 a.m., Central
time, on the date and time, as determined by the Global Coordinators,
when the U.S. Greenshoe Shares are to be delivered (the "Greenshoe
Closing Date"). If the Global Coordinators so elect, delivery of the
Greenshoe Shares may be made by credit through full fast transfer to
the accounts at The Depository Trust Company designated by the Global
Coordinators. Certificates representing the Greenshoe Shares in
definitive form and in such denominations and registered in such names
as you have set forth in your notice of option exercise, will be made
available for checking and packaging not later than 10:30 a.m.,
Central time, on the business day next preceding the Second Closing
Date at the office of U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx Tower,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location
as may be mutually acceptable.
(c) It is understood that the Global Coordinators, individually and not as
representatives of the U.S. Underwriters, may (but shall not be
obligated to) make payment to the Company, on behalf of any U.S.
Underwriter for the U.S. Offered Shares to be purchased by such U.S.
Underwriter. Any such payment by the Global Coordinators shall not
relieve any such U.S. Underwriter of any of its obligations hereunder.
Nothing herein contained shall constitute any of the U.S. Underwriters
an unincorporated association or partner with the Company.
18
(d) The documents to be delivered on the Closing Date and the Greenshoe
Closing Date, respectively, by or on behalf of the parties hereto
pursuant to Section 7 hereof will be delivered at the offices of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, professional corporation, or at such
other location as the parties hereto may agree (the "Closing
Location") on the Closing Date or the Greenshoe Closing Date, as the
case may be.
5. Agreements
----------
(a) The Company agrees with each U.S. Underwriter and Vontobel Securities
Ltd. as follows:
(i) The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will
notify the Global Coordinators immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement
to the U.S. Prospectus or any amended U.S. Prospectus shall have
been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the U.S. Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Offered Shares for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(ii) The Company will give the Global Coordinators notice of its
intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it
became effective or to any Prospectus, will furnish the Global
Coordinators with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case
may be, and will not file or
19
use any such document to which the Global Coordinators or
counsel for the U.S. Underwriters and Vontobel Securities Ltd.
and the International Managers shall object in good faith.
(iii) The Company has furnished or will deliver to the U.S.
Underwriters and Vontobel Securities Ltd. and counsel for the
U.S. Underwriters and Vontobel Securities Ltd. and the
International Managers, without charge, signed copies of the
Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith) and
signed copies of all consents and certificates of experts,
and will also deliver to the U.S. Underwriters and Vontobel
Securities Ltd., without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the U.S.
Underwriters and Vontobel Securities Ltd. The copies of the
Registration Statement and each amendment thereto furnished
to the U.S. Underwriters and Vontobel Securities Ltd. will be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(iv) The Company has delivered to each U.S. Underwriter and
Vontobel Securities Ltd., without charge, as many copies of
each U.S. Preliminary Prospectus as such reasonably
requested, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company
will furnish to each U.S. Underwriter and Vontobel Securities
Ltd., without charge, during the period when the U.S.
Prospectus is required to be delivered under the 1933 Act,
such number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter or Vontobel Securities
Ltd. may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S.
Underwriters and Vontobel Securities Ltd. will be identical
to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T. The Company will furnish to each
U.S. Underwriter and Vontobel Securities Ltd., without
charge, such number of copies of the International Prospectus
(as amended or supplemented) as such U.S. Underwriter or
Vontobel Securities Ltd. may reasonably request.
(v) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the
distribution of the Offered Shares as contemplated in this
Agreement and the International Underwriting Agreement and in
the Prospectuses. If at any time when a prospectus is
20
required by applicable law to be delivered by the U.S.
Underwriters in connection with sales of the U.S. Offered
Shares, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of
counsel for the U.S. Underwriters and Vontobel Securities
Ltd. and the International Managers or for the Company, to
amend the Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any
untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements
therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such
counsel, at any such time to amend the Registration Statement
or amend or supplement any Prospectus in order to comply with
the requirements of applicable law, the Company will (i) with
respect to the U.S. Prospectus, promptly prepare and file
with the Commission, subject to Section 5(a)(ii), such
amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement
or the U.S. Prospectus comply with such requirements, (ii)
with respect the International Prospectus, supplement such
prospectus to correct such statement or omission and (iii)
the Company will furnish to the U.S. Underwriters and
Vontobel Securities Ltd. such number of copies of such
amendment or supplement as the U.S. Underwriters and Vontobel
Securities Ltd. may reasonably request.
(vi) The Company will use its best efforts, in cooperation with
the U.S. Underwriters and Vontobel Securities Ltd., to
qualify the Offered Shares for offering and sale under the
applicable securities laws of the United States and such
other jurisdictions (domestic or foreign) as the Global
Coordinators may designate and to maintain such
qualifications in effect for so long as may be required for
purposes of distribution of the Offered Shares; provided,
--------
however, that the Company shall not be obligated to
-------
file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Offered Shares have been so
qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction.
21
(vii) During a period of five years commencing with the date
hereof, the Company will furnish to the Global Coordinators,
and to each U.S. Underwriter who may so request in writing,
copies of all periodic and special reports furnished to the
stockholders of the Company and all information, documents
and reports filed with the Commission, the National
Association of Securities Dealers, Inc., NASDAQ or any
securities exchange.
(viii) The Company will make generally available to its
securityholders as soon as practicable, but in any event not
later than the forty-fifth (45th) day following the end of
the fiscal quarter first occurring after the first
anniversary of the effective date of the Registration
Statement, an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(ix) The Company will use the net proceeds received by it from the
sale of the Offered Shares in the manner specified in each
Prospectus under "Use of Proceeds".
(x) The Company, during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), will file all
documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934
Act and the rules and regulations of the Commission
thereunder.
(xi) The Company will file with the Commission such information on
Form 10-Q or Form 10-K as may be required pursuant to Rule
463 of the 1933 Act Regulations.
(xii) The Company will furnish to the SWX New Market, through Bank
Vontobel, any and all documents (including, without
limitation, an updated excerpt from the commercial register),
instruments, information and warranties that may be requested
by Bank Vontobel in order to obtain and maintain the listing
of the Common Stock for trading with official quotation on
the SWX New Market. The Company will sign the Initial
International Prospectus and the International Prospectus and
any other necessary documents to conform with the listing
requirements of the SWX New Market, and will deliver the same
to Bank Vontobel in due course to ensure the timely listing
of the Common Stock.
22
(xiii) It will bear and pay any issue, stamp or other transactional
duty or tax (including interest and penalties, if any)
payable in connection with the issue and sale of the Offered
Shares.
(xiv) So long as the Common Stock is listed on the SWX New Market,
the Company shall comply with the publicity guidelines of
the listing rules of the SWX New Market.
(xv) The Company will not without the prior written consent
(which consent may be withheld at the sole discretion of
U.S. Bancorp Xxxxx Xxxxxxx Inc. and Bank Vontobel) issue,
sell or otherwise transfer, or announce the intent to issue,
sell or otherwise transfer any shares of Common Stock or
other securities convertible or exchangeable into shares of
Common Stock or representing rights to subscribe for shares
of Common Stock, for a period from the date hereof until 180
days from the date of the commencement of the public
offering of the U.S. Offered Shares by the U.S. Underwriters
(other than (i) pursuant to the exercise of options and
warrants outstanding as of the date hereof or conversion of
convertible securities outstanding on the date hereof, (ii)
pursuant to the exercise of options granted, or the purchase
of shares, under the Company's stock plans existing on the
date hereof or (iii) to Genzyme Corporation as described in
the Prospectus).
(xvi) The Company either has caused to be delivered to you or will
cause to be delivered to you prior to the effective date of
the Registration Statement a letter from each of the
Company's directors, officers and greater than 1%
shareholders stating that such person agrees that he or she
will not, without your prior written consent, offer for
sale, sell, contract to sell or otherwise dispose of any
shares of Common Stock or rights to purchase Common Stock,
except to the U.S. Underwriters pursuant to this agreement,
for a period of 180 days after commencement of the public
offering of the U.S. Offered Shares by the U.S.
Underwriters.
(xvii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably
be expected to cause or result in, or which has constituted,
the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of
the Offered Shares, and has not effected any sales of Common
Stock which are required to be disclosed in response to Item
701 of Regulation S-K under the 1933 Act which have not been
so disclosed in the Registration Statement.
23
(xviii) The Company will not incur any liability for any finder's
or broker's fee or agent's commission in connection with
the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xix) The Company will inform the Florida Department of Banking
and Finance at any time prior to the consummation of the
distribution of the U.S. Offered Shares by the U.S.
Underwriters if it commences engaging in business with the
government of Cuba or with any person or affiliate located
in Cuba. Such information will be provided within 90 days
after the commencement thereof or after a change occurs
with respect to previously reported information.
(xx) The Company will list the Common Stock for quotation on the
Nasdaq National Market ("Nasdaq").
6. Payment of Expenses
-------------------
The Company covenants and agrees with the several U.S. Underwriters and
Vontobel Securities Ltd. that whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective or is terminated, in addition to its other obligations hereunder
and under the International Underwriting Agreement, it will bear the
following costs:
(a) such expenses and listing fees as required in connection with the
listing of the Common Stock on the SWX New Market and the cost of the
listing advertisement and the listing of the Common Stock on Nasdaq;
(b) all expenses in connection with the preparation, printing and filing
of each Preliminary Prospectus, and any Term Sheets and each
Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the U.S. Underwriters and the
International Managers;
(c) the out-of-pocket expenses (including fees and disbursements of legal
counsel to the U.S. Underwriters and Vontobel Securities Ltd. and the
International Managers) incurred by the Global Coordinators on behalf
of the U.S. Underwriters and Vontobel Securities Ltd. and the
International Managers in connection with the transactions
contemplated by this Agreement and the International Underwriting
Agreement;
(d) the cost and expenses of the Global Coordinators in connection with
"road show" presentations to be made to prospective investors;
24
(e) the cost of preparing certificates in definitive form representing
Offered Shares if required by the initial purchasers thereof in
connection with the Offering;
(f) all expenses in connection with the preparation, printing and filing
of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto;
(g) the fees and expenses of the Company's counsel, accountants and other
advisors;
(h) all expenses in connection with the qualification of the Offered
Shares under securities laws in accordance with the provisions of
Section 5(a)(vi) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the U.S. Underwriters and Vontobel
Securities Ltd. and the International Managers in connection therewith
and in connection with the preparation of the Blue Sky Survey and any
supplement thereto;
(i) all expenses in connection with the preparation, printing and delivery
to the U.S. Underwriters and Vontobel Securities Ltd. and the
International Managers of copies of the Blue Sky Survey and any
supplement thereto;
(j) the fees and expenses of any transfer agent or registrar for the
Offered Shares; and
(k) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the U.S. Underwriters and Vontobel
Securities Ltd. and the International Managers in connection with,
the review by the NASD of the terms of the sale of the Offered
Shares
provided, however, that the Company shall not bear the portion of such costs
that exceed, if at all, either (a) $400,000 if the aggregate offering price of
the Offered Shares equals or exceeds $40,000,000, or (b) $200,000 if the
aggregate offering price of the Offered Shares is less than $40,000,000.
7. Conditions Precedent
--------------------
(a) The obligations of the several U.S. Underwriters to purchase and pay
for the U.S. Offered Shares are subject to the satisfaction of the
following conditions precedent:
(i) the Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing
Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for
25
additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters
and Vontobel Securities Ltd. and the International Managers. A
prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information
shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b);
(ii) each of the representations and warranties of the Company
contained herein shall be true and correct in all material
respects at the Closing Date and, with respect to the U.S.
Greenshoe Shares, at the Greenshoe Closing Date, as if made at
the Closing Date and, with respect to the U.S. Greenshoe
Shares, at the Greenshoe Closing Date, and all covenants and
agreements herein contained to be performed on the part of the
Company and all conditions herein contained to be fulfilled or
complied with by the Company at or prior to the Closing Date
and, with respect to the U.S. Greenshoe Shares, at or prior to
the Greenshoe Closing Date shall have been performed,
fulfilled or complied with in all material respects;
(iii) approval by the Admission Board (Zulassungsstelle) of the SWX
New Market of the application for the Common Stock to be
listed for trading with official quotation on the SWX New
Market and approval by Nasdaq of the application for the
Common Stock to be listed for quotation on Nasdaq;
(iv) delivery to the U.S. Underwriters, except to the extent waived
by the Global Coordinators in writing (x) on the Closing Date
and (y) on the Greenshoe Closing Date (except items A(dd),
B(bb)) and D):
(A) legal opinions from (aa) Wilson, Sonsini, Xxxxxxxx & Xxxxxx,
Professional Corporation, U.S. counsel to the Company,
substantially in the form attached hereto as Schedule 4,
(bb) Xxxxxx & Simon, patent counsel to the Company,
substantially in the form attached hereto as Schedule 5,
(cc) Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional
Corporation, counsel to the Company, regarding regulatory
matters substantially in the form attached hereto as
Schedule 6, and (dd) Xxxxxx Godward LLP, U.S. counsel to the
U.S. Underwriters with respect to the formation of the
Company, the validity of the securities, the Registration
Statement, the U.S. Prospectus, and other related matters as
may reasonably be requested
26
and such counsel shall have received such papers and
information as they request to enable them to pass upon
such matters.
(B) a certificate addressed to the U.S. Underwriters and
Vontobel Securities Ltd. signed by the Company and dated the
Closing Date (or the Greenshoe Closing Date with respect to
the Greenshoe Shares) to the effect stated in Section
7(a)(i) and (ii) and to the effect that the signers of said
certificate have carefully examined the Registration
Statement and the Prospectuses, and any amendments thereof
or supplements thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), and (A)
such documents contain all statements and information
required to be included therein, other than statements and
information required to be included therein under the laws
of jurisdictions outside the United States, the Registration
Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and the
Prospectuses, as amended or supplemented, do not include any
untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amended or supplemented prospectus which has not
been so set forth, (C) subsequent to the respective dates as
of which information is given in the Registration Statement
and the U.S. Prospectus and the International Prospectus,
neither the Company nor any of its subsidiaries has incurred
any material liabilities or obligations, direct or
contingent, or entered into any material transactions, not
in the ordinary course of business, or declared or paid any
dividends or made any distribution of any kind with respect
to its capital stock, and except as disclosed in the
Prospectuses, there has not been any change, in the capital
stock (other than a change in the number of outstanding
shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or' warrants), or any
material change in the short-term or long-term debt, or any
issuance of options, warrants, convertible securities or
other rights to purchase the capital stock of the Company
(other than options granted since May 31, 1999 under the
Company's option plans described in the Prospectus to
purchase up to ______ shares of common stock of the
27
Company) or any of its subsidiaries, or any material adverse
change or any development involving a prospective material
adverse change (whether or not arising in the ordinary
course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Company
and its subsidiaries, taken as a whole, and (D) except as
stated in the Registration Statement and the Prospectuses,
there is not pending, or, to the knowledge of the Company,
threatened or contemplated, any action, suit or proceeding
to which the Company or any of its subsidiaries is a party
before or by any court or governmental agency, authority or
body, or any arbitrator, which might result in any material
adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company
and its subsidiaries, taken as a whole;
(C) a comfort letter from the auditors of the Company
substantially in the agreed form;
(D) a copy of the Company's Certificate of Incorporation,
certified by the Secretary of State of the State of Delaware
as of the Closing Date or a date as near thereto as possible
and a copy of the Company's Bylaws in effect as of the
Closing Date, certified by the Secretary of the Company;
(v) delivery of the resolutions of the Board of Directors of the
Company authorizing and approving the Offering and all
actions taken or to be taken in connection therewith
including, without limitation, the execution and delivery of
this Agreement and the International Underwriting Agreement
and the implementation of all transactions contemplated
hereby and thereby, certified by the Secretary of the
Company;
(vi) each of the persons listed on Schedule 2 hereto (consisting
of the executive officers and directors of the Company and
all 1% or greater stockholders other than those stockholders
listed on Schedule 3.1 hereto) shall have executed and
delivered a lock-up letter substantially in the form attached
hereto as Schedule 3;
(vii) execution and delivery of a pricing agreement between the
Company and the Global Coordinators substantially in the
agreed form;
28
(viii) neither a U.S. Underwriter nor Vontobel Securities Ltd.
shall have advised the Company that the Registration
Statement or the Prospectuses, or any amendment thereof or
supplement thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), contains
an untrue statement of fact which, in their opinion, is
material, or omits to state a fact which, in their opinion,
is material and is required to be stated therein or
necessary to make the statements therein not misleading; and
(ix) except as contemplated in the Prospectuses, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectuses, neither the
Company nor any of its subsidiaries shall have incurred any
material liabilities or obligations, direct or contingent,
or entered into any material transactions, or declared or
paid any dividends or made any distribution of any kind with
respect to its capital stock; and there shall not have been
any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options
or warrants), or any material change in the short-term or
long-term debt of the Company, or any issuance of options,
warrants, convertible securities or other rights to purchase
the capital stock of the Company (other than options granted
since May 31, 1999 under the Company's option plans
described in the Prospectus to purchase up to ______ shares
of common stock of the Company) or any of its subsidiaries,
or any material adverse change or any development involving
a prospective material adverse change (whether or not
arising in the ordinary course of business), in the general
affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a
whole, that, in the judgment of the U.S. Underwriters or
Vontobel Securities Ltd., makes it impractical or
inadvisable to offer or deliver the Offered Shares on the
terms and in the manner contemplated in the Prospectuses.
Documents in the agreed form means documents in the form signed for
identification on the date hereof by Xxxxxx Godward LLP.
(b) If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in
the case of any condition to the purchase of the U.S. Greenshoe
Shares on the Greenshoe Closing Date, the obligations of the several
U.S. Underwriters to purchase the U.S. Greenshoe Shares, may be
terminated by the Global Coordinators by notice to the Company at
any time at or prior to the Closing Date or the Greenshoe Closing
Date, as the case may be,
29
and such termination shall be without liability of any party
to any other party except that (i) any liability (including as to
indemnification) as a result of any prior breach of the provisions of
this Agreement or the International Underwriting Agreement shall
continue in full force and effect; and (ii) the obligations of the
Company to pay to the Global Coordinators the costs, charges and
expenses, to the extent incurred, as provided for in Section 6 shall
continue in full force and effect.
8. Effective Date of this Agreement This agreement shall become effective at
--------------------------------
10:00 a.m., Central time, on the first full business day following the
effective date of the Registration Statement, or at such earlier time after
the effective time of the Registration Statement as the U.S. Underwriters
and Vontobel Securities Ltd. in their discretion shall first release the
U.S. Offered Shares for sale to the public; provided, that if the
Registration Statement is effective at the time this Agreement is executed,
this Agreement shall become effective at such time as the U.S. Underwriters
and Vontobel Securities Ltd. in their discretion shall first release the
U.S. Offered Shares for sale to the public. For the purpose of this
Section, the U.S. Offered Shares shall be deemed to have been released for
sale to the public upon release by the U.S. Underwriters and Vontobel
Securities Ltd. of the publication of a newspaper advertisement relating
thereto or upon release by the U.S. Underwriters and Vontobel Securities
Ltd. of telexes offering the U.S. Offered Shares for sale to securities
dealers, whichever shall first occur.
30
9. Termination
-----------
(a) The Global Coordinators (on behalf of the U.S. Underwriters and
Vontobel Securities Ltd.) may, by notice to the Company, terminate
this Agreement at any time whereupon the obligation of the U.S.
Underwriters to purchase and pay for the U.S. Offered Shares and to
procure investors shall terminate if, in the opinion of the Global
Coordinators, (i) there has been, since the time of execution of this
Agreement, any material adverse change in the financial condition,
earnings or business affairs of the Company and its Subsidiaries
considered as one enterprise or (ii) there has occurred any material
adverse change in the financial markets in the United Kingdom, the
United States, Switzerland or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions
in the United Kingdom, the United States or Switzerland and the effect
of any such material adverse change, outbreak, escalation, calamity,
crisis, change or development is such as to make it impossible or
impracticable to market the Offered Shares or to enforce contracts for
the sale of the Offered Shares, or (iii) trading generally on either
the SWX New Market, the London Stock Exchange or the New York Stock
Exchange or Nasdaq has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by any of said exchanges or
by such system or by order of the United States Securities and
Exchange Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) a banking moratorium
has been declared by the United States, New York State, Switzerland or
the United Kingdom, or (v) there has been a material change, or an
official announcement by a competent authority of a prospective
material change, in Swiss, United Kingdom or United States taxation
affecting the transfer of the Common Stock, or (vi) there has been any
material adverse change in currency rates between the U.S. dollar and
the Swiss franc, or (vii) additional exchange controls are imposed by
Switzerland or the United States.
(b) In the event that a pricing agreement is not entered into by _______
__, 1999, the Global Coordinators (on behalf of the U.S. Underwriters
and Vontobel Securities Ltd.) may, by notice to the Company, terminate
this Agreement.
(c) In the event that the Company shall fail at the Closing Date to sell
and deliver the number of Offered Shares which it is obligated to sell
hereunder, then this Agreement shall terminate without any liability
on the part of any non-defaulting party.
31
(d) In the event that this Agreement is terminated pursuant to this
Section 9, the parties to this Agreement shall be released and
discharged from their respective obligations hereunder except for any
liability (including as to indemnification) of any party hereto as a
result of any prior breach by it of this Agreement and except that the
Company shall pay to the Global Coordinators on the costs, charges and
expenses, to the extent incurred, as provided for in Section 6.
10. Indemnification
---------------
(a) The Company will indemnify and hold harmless each U.S. Underwriter and
Vontobel Securities Ltd. against any losses, claims, damages or
liabilities, joint or several, to which such U.S. Underwriter or
Vontobel Securities Ltd. may become subject, under Swiss law, the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or any Prospectus, including any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or any Prospectus,
including any amendment or supplement thereto, 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 or (iii) any breach by the Company of its representations,
warranties or obligations under this Agreement or the International
Underwriting Agreement, and will reimburse each U.S. Underwriter and
Vontobel Securities Ltd. for any legal or other expenses reasonably
incurred by such U.S. Underwriter or Vontobel Securities Ltd. in
connection with defending or investigating any such action or claim as
such expenses are incurred;
In addition to its other obligations under this Section 10(a), 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 any statement or omission, or any alleged statement
or omission, described in this Section 10(a), it will reimburse each
U.S. Underwriter and Vontobel Securities Ltd. on a monthly basis for
all reasonable legal fees 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 propriety and enforceability of the Company's
obligation to reimburse the U.S. Underwriters and Vontobel Securities
Ltd. 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 U.S. Underwriters or
Vontobel Securities Ltd. that received such
32
payment 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 time by ____________________
(the "Prime Rate"). Any such interim reimbursement payments which
are not made to an U.S. Underwriter or Vontobel Securities Ltd.
within 30 days of a request for reimbursement shall bear interest at
the Prime Rate from the date of such request. This indemnity
agreement shall be in addition to any liabilities which the Company
may otherwise have.
(b) Each U.S. Underwriter and Vontobel Securities Ltd. will, severally and
not jointly, indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company, may
become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) (A) an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or any Prospectus, including
any amendment or supplement thereto or (B) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or any Prospectus, including any amendment or supplement
thereto, 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or any Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such U.S. Underwriter or Vontobel
Securities Ltd. through the Global Coordinators expressly for use
therein, or (ii) any breach by such U.S. Underwriter or Vontobel
Securities Ltd. of its representations, warranties or obligations in
this Agreement or the International Underwriting Agreement, and will
reimburse the Company, for any legal or other expenses reasonably
incurred by the Company, in connection with defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than under this Agreement. In
case any such action shall be brought against any indemnified
33
party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall have the option to participate
in and to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof
including the employment of legal advisors approved by the
indemnified party (such approval not to be unreasonably withheld),
subject to the payment by the indemnifying party of all expenses;
provided, however, that if in the sole judgment of the Global
Coordinators it is advisable for the U.S. Underwriters and Vontobel
Securities, Ltd. to be represented as a group by separate counsel,
the Global Coordinators shall have the right to employ a single
counsel to represent the U.S. Underwriters and Vontobel Securities,
Ltd. in connection with any liability arising from any claim in
respect of which indemnity may be sought by the U.S. Underwriters
and Vontobel Securities, Ltd. under subsection (a) of this Section
10, in which event the reasonable fees and expenses of such separate
counsel shall be borne by the indemnifying party of parties and
reimbursed to the U.S. Underwriters and Vontobel Securities, Ltd. as
incurred (in accordance with the provisions of the second paragraph
of subsection (a) above). The indemnifying party shall not be liable
to indemnify any indemnified party for any settlement of any claim,
action or demand made without its consent (such consent not to be
unreasonably withheld), unless the indemnifying party fails to
assume the defense thereof and to employ legal advisors as aforesaid
for such purpose.
(d) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (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 U.S. Underwriters and Vontobel
Securities Ltd. on the other from the offering of the U.S. Offered
Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(d) above, 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 U.S.
Underwriters and Vontobel Securities Ltd. on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities (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 U.S.
Underwriters and Vontobel Securities Ltd. on the other shall be deemed
to be in the same proportion as the total net proceeds from
34
the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
the U.S. Underwriters and Vontobel Securities Ltd., 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 on the one hand or
the U.S. Underwriters and Vontobel Securities, Ltd. on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, the U.S. Underwriters and Vontobel Securities Ltd. agree
that it would not be just and equitable if contributions pursuant to
this subsection (d) were determined by pro rata allocation (even if
the U.S. Underwriters and Vontobel Securities Ltd. 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 in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), neither any
U.S. Underwriter nor Vontobel Securities Ltd. shall be required to
contribute any amount in excess of the amount by which the total
price at which the U.S. Offered Shares underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such U.S. Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The U.S. Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not
joint.
(e) The obligations of the Company under this Section 10 shall be in
addition to any liability which any of them may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of each U.S. Underwriter or Vontobel Securities Ltd. and to
each person, if any, who controls, is controlled by or is under common
control with any U.S. Underwriter or Vontobel Securities Ltd.; and the
obligations of the U.S. Underwriters and Vontobel Securities Ltd.
under this Section 10 shall be in addition to any liability which the
respective U.S. Underwriters and Vontobel Securities Ltd. may
otherwise have and shall extend, upon the same terms and conditions,
to each officer, director and stockholder of the Company, to the
35
extent applicable and to each person, if any, who controls, is
controlled by or is under common control with any of the foregoing (to
the extent applicable).
11. Representations and Indemnities to Survive
------------------------------------------
The respective indemnities, agreements, warranties and other statements of
the Company, and the several U.S. Underwriters and Vontobel Securities
Ltd., as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statements as to the
results thereof) made by or on behalf of any U.S. Underwriter or Vontobel
Securities Ltd. or any officer or director of any U.S. Underwriter or
Vontobel Securities Ltd. or any person who controls, is controlled by or is
under common control with any U.S. Underwriter or Vontobel Securities Ltd.,
or made by or on behalf of the Company, or any officer or director of any
of the foregoing or any person who controls, is controlled by or is under
common control with the Company, and shall remain in full force and effect
regardless of any investigation made by or on behalf of any U.S.
Underwriter or Vontobel Securities Ltd. or any controlling person thereof
or the Company or any of its officers, directors or controlling persons and
shall survive delivery of and payment for the Offered Shares.
12. Reimbursement on Termination or Default
---------------------------------------
If for any reason (other than the default of a U.S. Underwriter in respect
of its obligation to purchase any Offered Shares, in which case the Company
shall be under no further liability to such U.S. Underwriter) any Offered
Shares are not delivered by or on behalf of the Company when and as
required herein, the Company will reimburse the U.S. Underwriters and
Vontobel Securities Ltd. through the Global Coordinators for all out-of-
pocket expenses approved by the Global Coordinators, including fees and
disbursements of counsel, reasonably incurred by the U.S. Underwriters and
Vontobel Securities Ltd. in making preparations for the purchase, sale and
delivery of the Offered Shares not so delivered by the Company, as the case
may be, but the Company shall then be under no further liability to any
U.S. Underwriter and Vontobel Securities Ltd. in respect of such Offered
Shares, except as provided in Sections 6 and 10 hereof.
36
13. Stabilization
-------------
The Global Coordinators may, to the extent permitted by, and in accordance
with, applicable laws and regulations, overallot and effect transactions on
the Nasdaq National Market or SWX New Market or otherwise in connection
with the offer and sale of the Offered Shares with a view to establishing
or maintaining the market price of the Offered Shares at levels which might
not otherwise prevail but, in doing so, the Global Coordinators shall act
as agent of the U.S. Underwriters and Vontobel Securities Ltd. (as
principals) and not as agent of the Company and any profit or loss
resulting from such overallotment and stabilization shall be retained or
borne (as the case may be) by the U.S. Underwriters and Vontobel Securities
Ltd. The Company shall not as a result of any action taken by the Global
Coordinators under this Section 13 be obliged to sell to the U.S.
Underwriters or Vontobel Securities Ltd. any shares of Common Stock in
excess of the number of Offered Shares to be sold as set forth in Section 1
of this Agreement.
14. Notices
-------
All statements, requests, notices and agreements, hereunder shall be in
writing with copies to each of the Global Coordinators, and the Company,
and (i) if to the U.S. Underwriters or Vontobel Securities Ltd. shall be
delivered or sent by international courier, telex or facsimile transmission
care of U.S. Bancorp Xxxxx Xxxxxxx, Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, facsimile transmission no.
_______________; and (ii) if to the Company shall be delivered or sent by
international courier or facsimile transmission to Biomarin Pharmaceutical
Inc., 00 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, 00000, Attention: Xxxxx X.
Xxxxxxx, Xx., facsimile transmission no. _______________. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
15. Successors
----------
This Agreement shall be binding upon, and inure solely to the benefit of,
the U.S. Underwriters, Vontobel Securities Ltd. and the Company and, to the
extent provided in Section 10 hereof, the officers, directors and
stockholders of, and each person who controls, is controlled by or is under
common control with the Company or any U.S. Underwriter or Vontobel
Securities Ltd., and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Shares from any U.S.
Underwriter or Vontobel Securities Ltd. shall be deemed a successor or
assign by reason merely of such purchase.
37
16. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
substantive law of the State of New York.
17. Submission to Jurisdiction
--------------------------
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by any U.S. Underwriter or Vontobel
Securities Ltd. or by any officer or director of any U.S. Underwriter or
Vontobel Securities Ltd. or by any person who controls, is controlled by or
is under common control with any U.S. Underwriter or Vontobel Securities
Ltd. arising out of or based upon this Agreement or the International
Underwriting Agreement or the transactions contemplated herein or therein
shall be brought in New York, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such court in any such suit, action or proceeding.
18. Counterparts
------------
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
19. Severability
------------
Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be unenforceable or invalid under
applicable law, such provision shall be ineffective only to the extent of
such unenforceability or invalidity and be replaced by such valid and
enforceable provision which the parties bona fide consider to match as
closely as possible the invalid or unenforceable provision, attaining the
same or a similar economic effect. The remaining provisions of this
Agreement shall under all circumstances continue to be binding and in full
force and effect.
38
If the foregoing is in accordance with your understanding, please sign and
return to us __ counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the U.S. Underwriters and Vontobel Securities Ltd., this
letter and such acceptance hereof shall constitute a binding agreement between
each of the U.S. Underwriters, Vontobel Securities Ltd. and the Company.
Very truly yours,
BIOMARIN PHARMACEUTICAL INC.
By:
-----------------------------------------
Name:
Title:
Accepted as of the date hereof:
BANK X. XXXXXXXX & CO AG
U.S. BANCORP XXXXX XXXXXXX INC.
For themselves and as representatives of the U.S.
Underwriters named in Schedule 1 hereto and
Vontobel Securities Ltd.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
SCHEDULE 1
----------
U.S. Underwriters
New Shares Greenshoe Shares
-------------------------------------------------------------------------------
U.S. Bancorp Xxxxx Xxxxxxx Inc.
-------------------------------------------------------------------------------
Shroders & Co. Inc.
-------------------------------------------------------------------------------
Leerink Xxxxx & Company
-------------------------------------------------------------------------------
Total
-------------------------------------------------------------------------------
SCHEDULE 2
----------
Executive Officers, Directors and 1% and Greater Stockholders
BioMarin Pharmaceutical Inc. Directors and Officers and 1% or more Stockholders
who executed the Lock-up Agreement and NASD Questionnaire
1. Xxxxxxxx, Xxxxxxx X.
2. Banca Del Gottardo
3. BB BioVentures L.P.
4. Cardigan Inc.
5. Danske & Co.
6. Xxxxxxx, Xxxxx X. Xx.
7. Xxxxxxx, Xxxxxxx
8. Genzyme Corporation
9. Glyko Biomedical Ltd.
10. Grosvenor Fund, L.P.
11. Xxxxxx, Xxxx
12. Xxxxx, Xxxx X.
13. XxXxxx Asset Management S.A.
14. Royal Bank of Canada Trust Company (Jersey) Limited
15. Xxx, Blass & Cie
16. Xxxxx, Xxxxx
17. Xxxxx, Xxxxxxxxxxx
18. Xxxxxxxx, Xxxxx X.
-----------
(1) The lock-up agreement and NASD questionnaire were executed by Xxxxxxx
Xxxxxxxxxxxx on behalf of BankInvest Biotechnologi who is the beneficial owner
of the 333,500 shares of BioMarin Pharmaceutical Inc. Common Stock registered
under Danske & Co. This information was furnished to us by Xxxxxx Xxxxxxx of
Xxxxx Xxxxxxx & Xxxxxxx, attorney for the investors during the 1998 Common
Stock Financing.
SCHEDULE 3
----------
Form of Lock-up Letter
BIOMARIN PHARMACEUTICAL, INC.
LOCK-UP AGREEMENT
April ___, 1999
U.S. Bancorp Xxxxx Xxxxxxx
Bank X. XxxXxxxx & Co. AG
Schroders & Co., Inc.
Leerink Xxxxx & Company
as Representatives of the several Underwriters
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Re: BioMarin Pharmaceutical, Inc. Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives") of the several underwriters (the "Underwriters"), propose to
enter into an Underwriting Agreement with BioMarin Pharmaceutical, Inc. (the
"Company") providing for the public offering (the "Public Offering") by the
Underwriters, including yourselves, of shares of common stock of the Company
(the "Common Stock") pursuant to a Registration Statement (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission (the "Commission").
In consideration of the Underwriters' agreement to purchase and undertake
the Public Offering of the Company's Common Stock, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
undersigned hereby agrees that, without the prior written consent of U.S.
Bancorp Xxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
final prospectus for the Public Offering (the "Lock-Up Period"), (1) offer,
pledge, sell, lend, contract to sell (including, without limitation, any short
sale), sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, establish an open "put
equivalent position" within the meaning of Rule 16a-1(h) under the Securities
Exchange Act of 1934, as amended, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock owned directly by the undersigned
or with respect to which the undersigned has or acquires beneficial ownership
within the meaning of the rules and regulations of the Commission (collectively
the "Shares") (whether such shares or any such securities are now owned by the
undersigned or are hereafter acquired), or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (1) above or this clause (2) is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise, or (3) publicly
announce the undersigned's intention to do any of the foregoing. The foregoing
sentence shall not apply to transactions relating to Shares acquired in the
Public Offering by the Underwriters.
Notwithstanding the foregoing, if the undersigned is an individual, he or
she may transfer any securities of the Company either during his or her lifetime
or on death by gift, will or intestacy to his or her immediate family or to a
trust, the beneficiaries of which are exclusively the undersigned, and/or a
member or members of his or her immediate family; provided, however, that in
each such case described in this paragraph the transferee enters into a lock-up
agreement in substantially the form hereof covering the remainder of the Lock-Up
Period under this Agreement. For purposes of this Agreement, "immediate family"
shall mean spouse, lineal descendant, father mother, brother or sister of the
transferor.
The undersigned now has and except as contemplated by the preceding
paragraph, for the duration of the Lock-Up Period will have, good and marketable
title to the Shares, free and clear of all liens, claims and encumbrances.
In addition, the undersigned agrees that, without the prior written consent
of U.S. Bancorp Xxxxx Xxxxxxx on behalf of the Underwriters, it will not, during
the Lock-Up Period make any demand for or exercise any right with respect to,
the registration of any such Shares or any security convertible into or
exercisable or exchangeable for such Shares and hereby waives any rights to
receive notice of the Public Offering.
The undersigned confirms that the agreements of the undersigned are
irrevocable and shall be binding upon the undersigned's legal representatives
successors and assigns. The undersigned agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent against the transfer of
any Shares held by the undersigned except in compliance with the terms and
condition of this Agreement. The undersigned also understands that the Company
and the Underwriters will proceed with the Public Offering in reliance on this
Agreement.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
agreement between the Company and the Underwriters. Notwithstanding anything
else herein, in the event the Registration Statement is not declared effective
by the Commission on or prior to April 30, 2000, the terms and provisions of
this Agreement shall be of no further force or effect.
Very truly yours,
____________________________________________
(Print name)
____________________________________________
(Signature)
By:_________________________________________
(Name and title of signatory, if stockholder
is an entity)
____________________________________________
(Address)
____________________________________________
SCHEDULE 3.1
------------
BioMarin Pharmaceutical Inc. Stockholders who did not turn in the lock-up
agreement and NASD questionnaire
1. Argentiere Holdings Ltd.
2. Clariden Biotechnology Equity Fund
3. Fondation Limbau, Vaduz
4. Xxxxxxx & Company
5. Xxxx X. Xxxxx
6. Xxxx & Co.
7. Swiss Bank Corporation
8. X. Xxxxxx & June X. Xxxxx Irrevokable Trust Dated October 21, 1995,
Xxxxx X. Xxxxxxxxxx, Trustee
SCHEDULE 4
-----------
Company Counsel form of Opinion
(i) Each of the Company and Glyko, Inc. has been duly organized and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and Glyko, Inc. has full
corporate power and authority to own its properties and conduct its business
as currently being carried on and as described in the Registration Statement
and Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which, whether by reason of
the ownership of property or the conduct of business, the conduct of its
business makes such qualification necessary and in which the failure to so
qualify would have a material adverse effect upon the business, condition
(financial or otherwise) or properties of the Company and Glyko, Inc., taken
as a whole.
(ii) The capital stock of the Company conforms as to legal matters to the
description thereof contained in the Prospectus under the caption "Description
of Capital Stock." The description of the Company's stock option, stock bonus
and other stock plans or arrangements, and the options or other rights granted
and exercised thereunder, set forth in the Prospectus accurately and fairly
presents the information required to be shown with respect to such plans,
arrangements, options and rights. All of the issued and outstanding shares of
the capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable and have been issued in compliance with the
registration and qualification requirements of federal and state securities
laws. The Securities to be issued and sold by the Company hereunder have been
duly authorized and, when issued, delivered and paid for in accordance with the
terms of this Agreement, will have been validly issued and will be fully paid
and nonassessable. Except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other rights to subscribe for or
to purchase, or any restriction upon the voting or transfer of, any shares of
Common Stock pursuant to the Company's charter, by-law's or any agreement or
other instrument known to such counsel to which the Company is a party or by
which the Company is bound. Except as otherwise stated in the Registration
Statement and Prospectus, to the best of such counsel's knowledge, neither, the
filing of the Registration Statement nor the offering or sale of the Securities
as contemplated by this Agreement gives rise to any rights for or relating to
the registration of any shares of Common Stock or other securities of the
Company.
(iii) All of the issued and outstanding shares of capital stock of each of
the Company's subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable, and, to the best of such counsel's knowledge,
except as otherwise described in the Registration Statement and Prospectus, the
Company owns of record and beneficially, free and clear of any security
interests, claims, liens, proxies, equities or other encumbrances, all of the
issued and
outstanding shares of such stock. To the best of such counsel's knowledge,
except, as described in the Registration Statement and Prospectus, there are
no options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from any shares of the capital stock of the Company or any
subsidiary of the Company.
(iv) The Registration Statement has become effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of such counsel,
contemplated or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
(v) The statements (A) in the Prospectus: (i) relating to the agreements
and joint venture with Genzyme; (ii) relating to the convertible promissory
notes issued by the Company (iii) under the captions "Risk Factors--Anti-
takeover provisions in out charter documents and under Delaware law any make an
acquisition of us, which may be beneficial to our stockholders, more difficult";
"Shares eligible for future sale: the sale of a substantial number of shares of
common stock could cause the market price of our common stock to decline";
"Business--Corporate Collaborations"; "Business--Legal Proceedings";
"Management--1998 Director Option Plan"; "Management--Employment Agreements";
"Management--Employee Benefit Plans"; "Certain Transactions"; "Description of
Capital Stock"; "Shares Eligible for Future Sale"; and (B) in the Registration
Statement in Items 14 and 15, 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 are fair summaries of such legal matters,
documents or proceedings. To the best of such counsel's knowledge, no
contracts or documents required to be included as exhibits to the Registration
Statement that are not included as required.
(vi) The Company has full corporate power and authority to enter into this
Agreement, and this Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid, legal and binding obligation of the
Company enforceable in accordance with its terms (except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity); the execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, rule or regulation, any agreement or instrument
known to such counsel to which the Company is a party or by which it is bound or
to which any of its property is subject, the Company's charter or by-laws, or
any order or decree known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its respective properties;
and no consent, approval, authorization or order of, or filing with, any court
or
governmental agency or body in the United States is required for the
execution, delivery and performance of this Agreement or for the consummation
of the transactions contemplated hereby, including the issuance or sale of the
Securities by the Company, except such as may be required under the 1933 Act
or state securities laws.
(viii) To the best of such counsel's knowledge, neither the Company nor
any of its subsidiaries is in violation of its respective charter or by-laws.
(ix) The Registration Statement and the Prospectus, and any amendment
thereof or supplement thereto, comply as to form in all material respects with
the requirements of the 1933 Act and the Rules and Regulations. That while such
counsel have not independently verified the accuracy or completeness of the
Registration Statement, such counsel have no reason to believe that the
Registration Statement (except the financial statements and schedules and other
financial and statistical data contained therein and derived from the Company's
financial statements or financial records, as to which such counsel need express
no opinion or belief) at 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 to make the statements therein not misleading, or that the
Prospectus (except the financial statements and schedules and other financial
and statistical data contained therein and derived from the Company's financial
statements or financial records, as to which such counsel need express no
opinion or belief) as of its date or at the Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters of law
other than the General Corporation Law of the State of Delaware, the General
Corporation Law of the State of California or federal law, upon the opinion or
opinions of local counsel provided that the extent of such reliance is specified
in such opinion and that such counsel shall state that such opinion or opinions
of local counsel are satisfactory to them and that they believe they and you are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of officers of the Company and its
subsidiaries provided that the extent of such reliance is specified in such
opinion.
SCHEDULE 5
-----------
Patent Counsel Form of Opinion
(i) Such patent counsel has no reason to believe that the Registration
Statement or the Prospectus (A) contains any untrue statement of a material fact
with respect to Intellectual Property Rights owned or used by the Company, or
the manner of the manner of use of such Intellectual Property Rights, or any
allegation on the part of any person that the Company is infringing any
Intellectual Property Rights of another or (B) omits to state any material fact
with respect to Intellectual Property Rights owned or used by the Company, or
the manner of its use thereof, or any allegation on the part of any person that
the Company is infringing any Intellectual Property Rights of such person, that
is required to be stated therein or necessary to make the statements therein not
misleading.
(ii) Except as disclosed in the Prospectus, to the best of such patent
counsel's knowledge, the Company is not under any obligation to pay to any third
party royalties or fees of any kind whatsoever with respect to the Intellectual
Property Rights developed, employed, or used in the Company's business as
currently conducted and as proposed to be conducted as disclosed in the
Prospectus.
(iii) To the best of such patent counsel's knowledge, there are no legal
or governmental proceedings pending with respect to the Company's Intellectual
Property Rights, and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
others.
(iv) To the best of such patent counsel's knowledge, the Company is not
infringing or otherwise violating any Intellectual Property Rights of others,
and, to the best of such patent counsel's knowledge, there are no infringements
by others of the Company's Intellectual Property Rights.
(v) Such patent counsel does not know of any material contracts or other
documents relating to the Company's Intellectual Property Rights that are not
described in the Registration Statement.
SCHEDULE 6
-----------
Regulatory Counsel Form of Opinion
(i) The statements of federal law or regulation contained in the Prospectus
under the captions "Risk Factors--If we fail to obtain regulatory approval to
commercially manufacture or sell any of our future drug products, or if approval
is delayed, we will be unable to generate revenue from the sale of our
products"; "Risk Factors--If we fail to obtain orphan drug exclusivity for our
products, our competitors may sell products to treat the same conditions and our
revenues may be reduced"; "Business--Products Under Development"; "Business--
Government Regulation" and other references in the Registration Statement and
Prospectus to regulatory matters are, in all material respects, correct and
accurate statements or summaries of applicable federal law and regulation, and
fairly present the information disclosed therein.
(ii) Such regulatory counsel has no reason to believe that the Registration
Statement or the Prospectus contains any untrue statement of a material fact
with respect to government regulation or regulations concerning clinical trials.
(iii) To the best of such regulatory counsel's actual knowledge without
further investigation, the Company's business, as currently conducted and as
described in the Registration Statement and Prospectus, does not violate the
Federal Food, Drug and Cosmetic Act or any Food and Drug Administration ("FDA")
rule or regulation, and, to the best of such regulatory counsel's knowledge,
there are no FDA or judicial administration proceedings pending or threatened
against the Company.
