Exhibit 1.1
782,608 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
July 26, 2004
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Immtech International, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to you as the underwriter (the "Underwriter"), an
aggregate of 782,608 shares (the "Firm Shares") of Common Stock, $0.01 par value
per share (the "Common Stock"), of the Company. In addition, solely for the
purpose of covering over-allotments, the Company proposes to grant to the
Underwriter the option to purchase from the Company up to an additional 117,391
shares of Common Stock (the "Additional Shares"). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred to as the
"Shares."
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-108278) for the
registration, under the Securities Act of 1933, as amended (the "Securities
Act," and the rules and regulations under the Securities Act, the "Securities
Act Regulations"), of Common Stock, and has filed with the Commission such
amendments thereof as may have been required to the date of this Agreement. The
Company proposes to file with the Commission pursuant to Rule 424 under the
Securities Act a supplement or supplements to the form of prospectus included in
such registration statement relating to the offering of the Shares (the
"Offering") and the plan of distribution thereof. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the "Registration Statement," such prospectus in the form in
which it appears in the Registration Statement is hereinafter called the "Base
Prospectus"; and such supplemented form of prospectus, in the form in which it
shall first be used to confirm sales of the Shares (including the Base
Prospectus as so supplemented) is hereinafter called the "Prospectus." If the
Company has filed an abbreviated Registration Statement pursuant to Rule 462(b)
under the Securities Act ("Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement. Any preliminary form of the Prospectus which has
heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Prospectus." Any reference herein to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 (the "Incorporated Documents") which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
or before the date of this Agreement, or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the issue
date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as
the case may be, deemed to be incorporated therein by reference; each
Preliminary Prospectus and the prospectuses 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 Securities Act, complied when so filed in all
material respects with the Securities Act and the rules thereunder and each
Preliminary Prospectus and the Prospectus delivered to the Underwriter for use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval ("XXXXX") system, except to the extent
permitted by Regulation S-T.
The Company and the Underwriter each agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriter and the Underwriter agrees to
purchase from the Company 782,608 Firm Shares and up to 117,391 Additional
Shares at a purchase price of $9.635 per Share. The Company is advised by you
that the Underwriter intends (i) to make a public offering of the Firm Shares as
soon after the effective date of the Registration Statement as in your judgment
is advisable and (ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus.
In addition, the Company hereby grants to the Underwriter the option
to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriter shall have
the right to purchase from the Company, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriter to the Company for the Firm Shares. This option may be exercised
by the Underwriter, at its sole discretion, at any time (but not more than once)
in whole or in part, on or before the thirtieth day following the date of the
Prospectus, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (such date
and time being herein referred to as the "additional time of purchase");
provided, however, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of The Depository Trust Company ("DTC") for the account of the Underwriter. Such
payment and delivery shall be made at 12:00 P.M., New York City time, on July
30, 2004 (unless another time shall be agreed to by you and the Company). The
time at which such payment and delivery are to be made is hereinafter sometimes
called "the time of purchase." Electronic transfer of the Firm Shares shall be
made to you at the time of purchase in such names and in such denominations as
you shall specify.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of Xxxxxx &
Xxxxxxx LLP at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, at 10:00
A.M., New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriter that as of the date
hereof and at the time of purchase and at the additional time of purchase, if
any:
(a) The Company is eligible to use Form S-3 under the
Securities Act for registration of the Shares. On its effective date, the
Registration Statement complied, and on the date of the Prospectus, the date on
which any post-effective amendment to the Registration Statement becomes
effective, the date on which any supplement or amendment to the Prospectus is
filed with the Commission and any Closing Date, the Registration Statement and
Prospectus (and any amendment thereof or supplement thereto) will comply, in all
material respects, with the provisions of the Securities Act and the Exchange
Act, and the rules and regulations of the Commission thereunder. As of the date
hereof, when the Prospectus is first filed or transmitted for filing pursuant to
Rule 424 under the Securities Act, when, prior to any Closing Date, any
amendment to the Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration Statement), when
any supplement to the Prospectus is filed with the Commission and at any Closing
Date, (i) the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Securities Act and the
Exchange Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Prospectus, as
amended or supplemented as of such time, will contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
Notwithstanding anything to the contrary in this Agreement, the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement, any Preliminary Prospectus or the Prospectus in
accordance with information provided in writing to the Company by or on behalf
of the Underwriter expressly for use in any Preliminary Prospectus, the
Registration Statement or the Prospectus, and the Company agrees that the only
information provided in writing by or on behalf of Underwriter to the Company
expressly for use in any Preliminary Prospectus, the Registration Statement or
the Prospectus is (i) the second paragraph of text following the table showing
the amount of the discount to be paid to the Underwriter by the Company under
the caption "Underwriting" in the Prospectus Supplement insofar as such
statements relate to amount of selling concession and reallowance, and (ii) the
fourth, fifth and sixth paragraphs of text following the table showing the
amount of the discount to be paid to the Underwriter by the Company under the
caption "Underwriting" in the Prospectus Supplement concerning short sales,
stabilizing transactions and purchases to cover positions created by short sales
by Underwriter.
(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Prospectus
or any Preliminary Prospectus has been issued and no proceedings for that
purpose have been instituted or are threatened under the Securities Act. Any
required filing of the Prospectus and any supplement thereto pursuant to Rule
424(b) under the Securities Act has been or will be made in the manner and
within the time period required by such Rule.
(c) The Incorporated Documents, at the time they were filed
with the Commission or became effective, as the case may be, complied in all
material respects with the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations thereunder. No such document
when it was filed or became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
(d) All of the Company's issued and outstanding capital stock
has been duly authorized and validly issued and is fully paid and nonassessable,
and the Company's outstanding classes of capital stock, including, without
limitation, the Common Stock, and the capitalization (authorized and
outstanding) of the Company conform in all material respects to the descriptions
thereof and the statements made with respect thereto in the Prospectus as of the
date set forth therein. None of the issued and outstanding shares of the
Company's capital stock including the Common Stock, have been issued in
violation of any preemptive or other rights to subscribe for or purchase shares
of capital stock of the Company. Except as described in the Prospectus, there
are no outstanding securities convertible into or exchangeable for, and no
outstanding options, warrants or other rights to purchase, any shares of the
capital stock of the Company, nor any agreements or commitments to issue any of
the same, and there are no preemptive or other rights to subscribe for or to
purchase, and no restrictions upon the voting or transfer of, any capital stock
of the Company pursuant to the Company's certificate of incorporation or bylaws
or any agreement or other instrument to which the Company is a party. All offers
and sales of the Company's capital stock prior to the date hereof were at all
relevant times duly registered or exempt from the registration requirements of
the Securities Act, and were duly registered or the subject of an available
exemption from the registration requirements of the applicable state securities
or blue sky laws. The form of certificates for the Shares complies with the
requirements of the Delaware General Corporation Law.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus, to execute and deliver this Agreement and to issue, sell and
deliver the Shares as contemplated herein. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a material
adverse effect on the business, properties, assets, rights, condition (financial
or otherwise), results of operation or prospects of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole, whether or not occurring
in the ordinary course of business (a "Material Adverse Effect").
(f) The Company has no subsidiaries (as defined in the
Securities Act) other than Super Insight Limited, a British Virgin Island
company, Immtech Hong Kong Limited, a Hong Kong company, Immtech Therapeutics
Limited, a Hong Kong company, and Immtech Life Science Limited, a Hong Kong
company (each, a "Subsidiary" and collectively, the "Subsidiaries"). The Company
owns all of the issued and outstanding capital stock or other ownership
interests of each of the Subsidiaries, except for Immtech Therapeutics Limited,
of which the Company owns 51% of the equity interests. Other than the capital
stock of the Subsidiaries and the Company's 28% interest in NextEra
Therapeutics, Inc., the Company does not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, association or
other entity. Complete and correct copies of the articles of incorporation, the
bylaws of the Company and the other organizational documents of the Subsidiaries
and all amendments thereto have been delivered to you, and except as set forth
in the exhibits to the Registration Statement no changes therein will be made
subsequent to the date hereof and prior to the time of purchase or, if later,
the additional time of purchase. Each Subsidiary has been duly incorporated or
organized and is validly existing as a corporation, partnership, or other
entity, as the case may be, in good standing under the laws of the jurisdiction
of its incorporation or organization, with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus. Each Subsidiary is duly
qualified to do business as a foreign corporation or partnership and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. All of
the outstanding shares of capital stock or other ownership interests of each of
the Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Company subject to no security interest,
other encumbrance or adverse claims. Except for the option held by Xxx Xxxx
Pharmaceuticals Ltd. to purchase 5% of the equity of Immtech Therapeutics
Limited, no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into shares of
capital stock or ownership interests in the Subsidiaries are outstanding.
(g) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution with respect to such Subsidiary's capital stock or other equity
interests to the Company or a Subsidiary, as the case may be, from repaying to
the Company or a Subsidiary any loans or advances to such Subsidiary from the
Company or a Subsidiary or from transferring any of such Subsidiary's property
or assets to the Company or any Subsidiary.
(h) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights, resale rights, rights of first refusal and
similar rights.
(i) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in the
Registration Statement and the Prospectus and the certificates for the Shares
are in due and proper form and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(j) The Company has all corporate power, authority,
authorizations, approvals, orders, licenses, certificates and permits to enter
into this Agreement and to carry out the provisions and conditions hereof,
including, but not limited to, the issuance and delivery of the Shares to the
Underwriter as provided herein. This Agreement has been duly and validly
authorized by the Company and duly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity.
(k) Except as set forth in the Registration Statement and the
Prospectus and as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in any breach or
violation of, constitute a default under or give the holder of any indebtedness
(or a person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under)
its respective charter or bylaws, or any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their properties
may be bound or affected. The execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or violation of or
constitute a default under) the charter or bylaws of the Company or any of the
Subsidiaries, or any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may be
bound or affected, or any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the Company or any of the
Subsidiaries.
(l) No approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the issuance and
sale of the Shares or the consummation by the Company of the transactions
contemplated hereby other than registration of the Shares under the Securities
Act, which has been or will be effected, and any necessary qualification under
the securities or blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriter or under the rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD").
(m) Except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of capital stock of the Company,
including the Shares, or other equity interests of the Company, (ii) no person
has any preemptive rights, resale rights (other than as set forth in Section
4(o) below), rights of first refusal or other rights to purchase any shares of
capital stock of the Company, including the Shares, or other equity interests of
the Company, and (iii) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale of the
Shares, in the case of each of the foregoing clauses (i), (ii) and (iii),
whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise. No person has
the right, contractual or otherwise, to cause the Company to register under the
Securities Act any shares of capital stock or other equity interests of the
Company (other than as set forth in Section 4(o) below), or to include any such
shares or interests in the Registration Statement or the offering contemplated
thereby, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or otherwise.
(n) The Company and each of the Subsidiaries have obtained all
permits, licenses, qualifications, clearances, registrations, consents,
exemptions, franchises, authorizations and other approvals (each, an
"Authorization"), have made all filings required under any federal, state, local
or foreign law, regulation or rule, and have given all notices to all
governmental and regulatory authorities and self-regulatory organizations and
all courts and other tribunals, in each case, as are necessary to own, lease,
license and operate their properties and to conduct their respective businesses,
except where the failure to have any such Authorization or to make or give any
such filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. Each such Authorization is valid and in full force and effect,
and the Company and each of the Subsidiaries are in compliance with all the
terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto; and
no event has occurred (including, without limitation, the receipt of any notice
from any authority or governing body) which allows or, after notice or lapse of
time or both, would allow, revocation, modification, suspension or termination
of any such Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the holder of any such
Authorization, except where such failure to be valid and in full force and
effect or to be in compliance, impairment or restriction would not, singly or in
the aggregate, have a Material Adverse Effect. Such Authorizations contain no
restrictions that are unduly burdensome to the Company or any of the
Subsidiaries.
(o) The Company has received all Authorizations from the U.S.
Food and Drug Administration ("FDA") and from similar foreign regulatory
commissions and ministries of health, in each case as necessary to conduct its
business as described in the Registration Statement and the Prospectus. All such
Authorizations have been duly and validly issued and are in full force and
effect and the Company is not in violation of any of the terms and conditions of
any such Authorizations. The Company has not received any notice of proceedings
relating to the revocation or modification of any such Authorization which, if
subject to an unfavorable ruling, decision or finding, would individually or in
the aggregate, reasonably be expected to have a Materially Adverse Effect. The
studies, tests and preclinical and clinical trials conducted by or on behalf of
the Company that are described in the Registration Statement and the Prospectus
were and, if still pending, are being, conducted in compliance with all
applicable current Good Laboratory Practices and Good Clinical Practices in all
material respects. The descriptions of the studies, tests and preclinical and
clinical trials, including the related results and regulatory status, contained
in the Registration Statements and Prospectus are accurate in all material
respects. Except as described in the Prospectus, the Company has not received
any notices, correspondence or other communication from the FDA or other
governmental agency requiring the termination or suspension of any clinical
trials conducted by, or on behalf of, the Company or in which the Company has
participated.
(p) All legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions, contracts, licenses, agreements,
leases or documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required.
(q) There are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Company's knowledge, contemplated
to which the Company or any of the Subsidiaries or any of their respective
directors or officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority or agency, except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect or preventing
consummation of the transactions contemplated hereby.
(r) Deloitte & Touche LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries is filed with the
Commission as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Securities Act and the rules
and regulations thereunder. Except as pre-approved in accordance with the
requirements set forth in Section 10A of the Exchange Act, Deloitte & Touche LLP
has not engaged in any "prohibited activities" (as defined in Section 10A of the
Exchange Act) on behalf of the Company.
(s) The financial statements included in the Registration
Statement and the Prospectus, together with the related notes and schedules,
present fairly the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the periods
specified and have been prepared in compliance with the requirements of the
Securities Act and in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis during the periods involved. Any pro
forma financial statements or data included in the Registration Statement and
the Prospectus comply with the requirements of Regulation S-X of the Securities
Act and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are
appropriate to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements and data and all
disclosures regarding non-GAAP Financial Measures (as such term is defined by
the rules and regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K. The other financial and statistical
data set forth in the Registration Statement and the Prospectus are accurately
presented and prepared on a basis consistent with the financial statements and
books and records of the Company. There are no financial statements (historical
or pro forma) that are required to be included in the Registration Statement and
the Prospectus that are not included as required. The Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet arrangements, as defined in Item 303
of Regulation S-K promulgated under the Securities Act), not disclosed in the
Registration Statement and the Prospectus.
(t) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries taken as
a whole, (ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or the
Subsidiaries, which is material to the Company and the Subsidiaries taken as a
whole, (iv) other than (x) the issuance of shares of Common Stock upon the
exercise of options or warrants or conversion of securities outstanding on the
date of this Agreement and (y) grants and issuances of shares of Common Stock or
options to acquire Common Stock pursuant to the Company's stock option plan, any
change in the capital stock or outstanding indebtedness of the Company or the
Subsidiaries or (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company.
(u) The Company has obtained for the benefit of the
Underwriter the agreement (a "Lock-Up Agreement"), in the form set forth as
Exhibit A hereto, of each of its directors and officers named in Exhibit A-1
hereto.
(v) Neither the Company nor any Subsidiary is, nor, after
giving effect to the offering and sale of the Shares, will any of them be, an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act") or a "passive foreign investment company" or a
"controlled foreign corporation" as such terms are defined in the Internal
Revenue Code.
(w) The Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement and in the Prospectus as being owned by each of them,
free and clear of all liens, claims, security interests or other encumbrances.
All the property described in the Registration Statement and the Prospectus as
being held under lease by the Company or a Subsidiary is held thereby under
valid, subsisting and enforceable leases.
(x) The Company and each Subsidiary owns, or has obtained
valid and enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, patent rights, trademarks (both registered and
unregistered), service marks, tradenames, copyrights, trade secrets, know-how
(including trade secrets and other unpatented and unpatentable proprietary and
confidential information or procedures) and other rights described in the
Registration Statement and the Prospectus as being owned or licensed by them or
which are necessary for the conduct of their respective businesses
(collectively, "Intellectual Property"). Except as described in the Registration
Statement and the Prospectus, (i) there are no third parties who have or, to the
Company's knowledge, will be able to establish rights to any Intellectual
Property, except for the ownership rights of the owners of the Intellectual
Property which is licensed to the Company; (ii) to the Company's knowledge,
there is no infringement by third parties of any Intellectual Property; (iii)
there is no pending or threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual Property, and the
Company is unaware of any facts which could form a reasonable basis for any such
claim; (iv) there is no pending or threatened action, suit, proceeding or claim
by others challenging the validity or scope of any Intellectual Property, and
the Company is unaware of any facts which could form a reasonable basis for any
such claim; (v) there is no pending or threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any facts which could form a reasonable basis for any
such claim; (vi) to the Company's knowledge, there is no patent or patent
application that contains claims that interfere with the issued or pending
claims of any of the Intellectual Property; and (vii) there is no prior art that
may render any patent application owned by the Company of the Intellectual
Property unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office.
(y) Neither the Company nor any Subsidiary is engaged in any
unfair labor practice. There is (i) no unfair labor practice complaint pending
or, to the Company's knowledge, threatened against the Company or any of the
Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or threatened, (ii) no strike, labor dispute, slowdown or stoppage
pending or, to the Company's knowledge, threatened against the Company or any of
the Subsidiaries and (iii) no union representation dispute currently existing
concerning the employees of the Company or any of the Subsidiaries. To the
Company's knowledge, (A) no union organizing activities are currently taking
place concerning the employees of the Company or any of the Subsidiaries and (B)
there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any applicable
wage or hour laws or any provision of the Employee Retirement Income Security
Act of 1974 ("ERISA") or the rules and regulations promulgated thereunder
concerning the employees of the Company or any of the Subsidiaries.
(z) The Company and the Subsidiaries and their properties,
assets and operations are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as defined
below), except to the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. There are no past,
present or, to the Company's knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions or plans
that could reasonably be expected to give rise to any material costs or
liabilities to the Company or the Subsidiaries under, or to interfere with or
prevent compliance by the Company or the Subsidiaries with, Environmental Laws.
Neither the Company nor any of the Subsidiaries (i) is, to the Company's
knowledge, the subject of any investigation, (ii) has received any notice or
claim, (iii) is a party to or, to the Company's knowledge, affected by any
pending or threatened action, suit or proceeding, (iv) is bound by any judgment,
decree or order or (v) has entered into any agreement, in each case relating to
any alleged violation of any Environmental Law or any actual or alleged release
or threatened release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, "Environmental Law" means any federal, state,
local or foreign law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the protection,
cleanup or restoration of the environment or natural resources, including those
relating to the distribution, processing, generation, treatment, storage,
disposal, transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous Materials" means any material (including,
without limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law).
(aa) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization relating to matters covered by
Environmental Laws, in each case as currently in effect, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(bb) All tax returns required to be filed by the Company and
each of the Subsidiaries have been filed, and all taxes and other assessments of
a similar nature (whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or claimed to be
due from such entities have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(cc) The Company and each of the Subsidiaries maintains
insurance issued by insurers of nationally recognized financial responsibility
and covering its properties, operations, personnel and businesses as the Company
deems adequate. Such insurance insures against such losses and risks to an
extent which is adequate in accordance with customary industry practice to
protect the Company and the Subsidiaries and their businesses, including,
without limitation, product liability claims. All such insurance is fully in
force on the date hereof and will be fully in force at the time of purchase and
any additional time of purchase. None of the Company or any Subsidiary has been
refused any insurance coverage sought or applied for; and none of the Company or
any Subsidiary has reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers, as may be necessary to continue its
business at a cost that could not reasonably be expected to have a Material
Adverse Effect. All such insurance is outstanding and duly in force on the date
hereof.
(dd) Neither the Company nor any of the Subsidiaries has
sustained since the date of the last audited financial statements included in
the Registration Statement and the Prospectus any loss or interference with its
respective 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.
(ee) There are no contracts, agreements or other documents
which are of a character required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the
Securities Act Regulations which have not been described in the Prospectus or
filed as exhibits to the Registration Statement as required by the Securities
Act Regulations. The contracts so described or otherwise described in the
Prospectus or filed as exhibits to the Registration Statement are in full force
and effect on the date hereof, and neither the Company or any Subsidiary nor, to
the Company's knowledge, except as described in the Prospectus, any other party
is in material breach of or default under any of such contracts. The Company has
not received any written notice of such material default or breach. The
descriptions of such contracts in the Prospectus and the Registration Statement
are accurate summaries thereof and fairly represent, in all material respects,
the information purported to be summarized. All such agreements to which the
Company or any of its Subsidiaries is a party have been duly authorized,
executed and delivered by the Company or a Subsidiary, constitute valid and
binding agreements of the Company or a Subsidiary, and are enforceable against
the Company or a Subsidiary in accordance with the terms thereof, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, or by general equitable principles.
(ff) The Company and each Subsidiary maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(gg) The Company has established and maintains "disclosure
controls and procedures" (as such term is defined in Rule 13a-15 under the
Exchange Act), and such disclosure controls and procedures are effective to
perform the functions for which they were established. Since the date of the
filing of the Company's Annual Report or Form 10-K for the year ended March 31,
2004 (the "10-K Filing Date"), the Company's auditors and the audit committee of
the board of directors of the Company (or persons fulfilling the equivalent
function) have not been advised of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize, and report financial data nor
any material weaknesses in internal controls; and (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal controls. Since the 10-K Filing Date, there has
been no change in internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting, including any corrective actions with regard
to significant deficiencies and material weaknesses. The principal executive
officers (or their equivalents) and principal financial officers (or their
equivalents) of the Company have made all certifications required by the
Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act") and any related rules and
regulations promulgated by the Commission, and the statements contained in any
such certification are complete and correct as of the date such certifications
were made. The Company is otherwise in compliance in all material respects with
all applicable effective provisions of the Xxxxxxxx-Xxxxx Act.
(hh) The Company has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in the form of
a personal loan made, directly or indirectly, by the Company to any director or
executive officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company. Since July 30, 2002, the Company
has not, directly or indirectly, including through any subsidiary: (i) extended
credit, arranged to extend credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer of the
Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (ii) made any material modification,
including any renewal thereof, to any term of any personal loan to any director
or executive officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on July 30, 2002.
(ii) Any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources to the
extent required.
(jj) Neither the Company nor any of the Subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of the Subsidiaries, has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; or (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(kk) Neither the Company nor any of the Subsidiaries nor any
of their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted or
might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(ll) The Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and is listed on the American Stock Exchange ("AMEX"), and
the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from AMEX, nor has the Company received any
notification that the Commission or AMEX is contemplating terminating such
registration or listing.
(mm) The Shares have been approved for listing on AMEX,
subject to notice of issuance.
(nn) The Company's board of directors has validly appointed an
audit committee whose composition satisfies the requirements of the listing
rules of AMEX (the "AMEX Rules") and the board of directors and/or the audit
committee has adopted a charter that satisfies the requirements of the AMEX
Rules. The audit committee has reviewed the adequacy of its charter within the
past twelve months.
(oo) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or 5% or greater securityholders.
(pp) There are no claims, payments, issuances, arrangements or
understandings, whether oral or written, for services in the nature of a
finder's, consulting or origination fee with respect to the sale of the Shares
hereunder or any other arrangements, agreements, understandings, payments or
issuances with respect to the Company or any Subsidiary, or any of their
respective officers, directors, stockholders, partners, employees or affiliates
on behalf of the Company or any Subsidiary that may affect the Underwriter's
compensation, as determined by the NASD, other than as described in the
Prospectus.
In addition, any certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriter or counsel for the
Underwriter in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company or Subsidiary, as the case may be,
as to matters covered thereby, to the Underwriter.
4. Covenants of the Company. The Company hereby agrees with the
Underwriter as follows:
(a) To furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you may
designate and to maintain such qualifications in effect so long as you may
request for the distribution of the Shares; provided that the Company shall not
be required to qualify as a foreign corporation or to consent to the service of
process under the laws of any such jurisdiction (except service of process with
respect to the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(b) To make available to the Underwriter in New York City, as
soon as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriter, as many copies of
the Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective date
of the Registration Statement) as the Underwriter may request for the purposes
contemplated by the Securities Act.
(c) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective amendment
thereto to be declared effective before the Shares maybe sold, the Company will
endeavor to cause the Registration Statement or such post-effective amendment to
become effective as soon as possible and the Company will advise you promptly
and, if requested by you, will confirm such advice in writing, (i) when the
Registration Statement and any such post-effective amendment thereto has become
effective, and (ii) if Rule 430A under the Securities Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Securities Act (which the Company agrees to file in a timely manner under such
Rule).
(d) To advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the entry of
a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending use of any
Prospectus, to use its best efforts to obtain the lifting or removal of such
order as soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, including by filing any
documents that would be incorporated therein by reference, and to provide you
and Underwriter's counsel copies of any such documents for review and comment a
reasonable amount of time prior to any proposed filing and to file no such
amendment or supplement to which you shall object in writing.
(e) Subject to Section 4(d) hereof, to file promptly all
reports and any definitive proxy or information statement required to be filed
by the Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Shares;
and to provide you with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the
Exchange Act during such period a reasonable amount of time prior to any
proposed filing, and to promptly notify you of such filing.
(f) If necessary or appropriate, to file a Rule 462
Registration Statement.
(g) To advise the Underwriter promptly of the happening of any
event within the time during which a prospectus relating to the Shares is
required to be delivered under the Securities Act which could require the making
of any change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, and, during such time, subject to
Section 4(d) hereof, to prepare and furnish, at the Company's expense, to the
Underwriter promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change.
(h) To make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Securities Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Securities Act) as soon as is reasonably
practicable after the termination of such twelve-month period.
(i) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a consolidated
balance sheet and statements of income, shareholders' equity and cash flow of
the Company and the Subsidiaries for such fiscal year, accompanied by a copy of
the certificate or report thereon of nationally recognized independent certified
public accountants).
(j) To furnish to you two copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein).
(k) To furnish to you promptly for a period of five years from
the date of this Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its shareholders or shall from
time to time publish or publicly disseminate, (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission, (iii)
copies of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such other
information as you may reasonably request regarding the Company or the
Subsidiaries.
(l) To furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case may be, but
not later than two business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any, of the
Company and the Subsidiaries which have been read by the Company's independent
certified public accountants, as stated in their letter to be furnished pursuant
to Section 6(e) hereof.
(m) To apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(n) Regardless of whether the Offering contemplated by this
Agreement and the Prospectus is consummated, to pay all costs, fees and expenses
incurred in connection with or incident to the proposed Offering, including,
without limitation, (i) all expenses and taxes incident to the authorization,
issuance, sale and delivery of the Shares to be sold by the Company to the
Representative, (ii) all expenses incident to the registration of the Shares
under the Securities Act, (iii) all costs of preparing stock certificates,
including printing and engraving costs, (iv) all fees and expenses of the
registrar and transfer agent of the Shares, (v) without limiting clause (i)
above, all necessary, transfer and other stamp taxes in connection with the
issuance and sale of the Shares to be sold by the Company to the Underwriter,
(vi) all fees and expenses of the Company's counsel, the Company's independent
accountants and any other experts or consultants retained by or on behalf of the
Company in connection with the Offering, (vii) all costs and expenses incurred
in connection with the preparation, printing, filing, shipping and distribution
of the Registration Statement, each Preliminary Prospectus and the Prospectus,
including all exhibits and financial statements, and all amendments and
supplements provided for herein, including, without limitation, any
post-effective amendments, the blue sky memoranda, this Agreement, the Agreement
among Underwriter, the Underwriter's Questionnaire and Power of Attorney, (viii)
the filing fees and expenses incurred by the Company or the Underwriter in
connection with exemptions from qualifying or registering (or obtaining
qualification or registration of) all or any part of the Shares for offer and
sale and determination of eligibility for investment under the blue sky or other
securities laws of such jurisdictions as the Representative may designate
(including related fees and expenses of counsel to the Underwriter), (ix) the
fees paid or incurred in connection with filings made with the NASD (including
related fees and expenses of counsel to the Underwriter), (x) all travel and
lodging fees and expenses incurred by or on behalf of officers and
representatives of the Company in connection with presentations to prospective
purchasers of the Shares, (xi) all word processing charges, messenger and
duplicating services, facsimile expenses and other customary expenses of the
Company related to the proposed Offering, (xii) the costs and expenses relating
to preparation and delivery to the Underwriter of five closing binders, (xiii)
all applicable listing or other fees relating to the Shares, including, without
limitation, the fees relating to the listing of the Common Stock on AMEX, (xiv)
all other costs and expenses incident to the performance by the Company of its
obligations under this Agreement and (xv) all fees, disbursements and
out-of-pocket expenses incurred by the Underwriter in connection with its
services to be rendered hereunder (including without limitation, the fees and
expenses of Underwriter's counsel, travel and lodging expenses, word processing
charges, messenger and duplicating services, facsimile expenses and other
customary expenditures).
(o) Not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, any Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or warrants or
other rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or file or cause to be declared
effective a registration statement under the Securities Act relating to the
offer and sale of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar to
Common Stock for a period of 90 days after the date hereof (the "Lock-Up
Period"), without the prior written consent of the Underwriter, except for (i)
the registration of the Shares and the sales to the Underwriter pursuant to this
Agreement, (ii) issuances of Common Stock upon the exercise of options or
warrants disclosed as outstanding in the Registration Statement and the
Prospectus, (iii) the issuance of employee stock options not exercisable during
the Lock-Up Period pursuant to stock option plans described in the Registration
Statement and the Prospectus and (iv) the filing of a registration statement on
Form S-3 with respect to up to 755,540 shares of Common Stock issuable upon
conversion of outstanding shares of Series D Preferred Stock of the Company and
exercise of related warrants covering 200,000 shares of common stock.
(p) To cause the Shares to be listed on AMEX.
(q) To take such steps as shall be necessary to ensure that
neither the Company nor any of the Subsidiaries shall become an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended.
5. [Intentionally Omitted]
6. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof, at the time of
purchase and, if applicable, at the additional time of purchase, the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of
Cadwalader, Xxxxxxxxxx and Xxxx LLP, counsel for the Company, addressed to the
Underwriter, and dated the time of purchase or the additional time of purchase,
as the case may be, in the form set forth in Annex A hereto.
(b) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of Xxxxxx
Xxxxxx White & XxXxxxxxx, Solicitors and International Lawyers, special counsel
for the Company with respect to the Subsidiaries, Immtech Hong Kong Limited,
Immtech Life Science Limited and Immtech Therapeutics Limited, addressed to the
Underwriter, and dated the time of purchase or the additional time of purchase,
as the case may be, in the form set forth in Annex B hereto.
(c) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of Xxxxxxx,
Xxxx & Xxxxxxx, special counsel for the Company with respect to the Subsidiary,
Super Insight Limited, addressed to the Underwriter, and dated the time of
purchase or the additional time of purchase, as the case may be, in the form set
forth in Annex C hereto.
(d) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Xxxxxx & Xxxxxxx
LLP, counsel for the Underwriter, dated the time of purchase or the additional
time of purchase, as the case may be, as to such matters as may be reasonably
requested by the Underwriter.
(e) At the time of execution of this Agreement, the
Underwriter shall have received from Deloitte & Touche LLP a letter, in form and
substance satisfactory to the Underwriter, addressed to the Underwriter and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Underwriter concurrently with
the execution of this Agreement (the "initial letter"), Deloitte & Touche LLP
shall have furnished to the Underwriter a letter (the "bring-down letter") of
such accountants, addressed to the Underwriter and dated as of the time of
purchase or additional time of purchase, as the case may be, (i) confirming that
they are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial letter.
(f) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus, including documents deemed to be
incorporated by reference therein, shall have been filed to which you object in
writing.
(g) The Registration Statement shall become effective not
later than 5:30 P.M. New York City time, on the date of this Agreement and, if
Rule 430A under the Securities Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act at or
before 5:30 P.M., New York City time, on the second full business day after the
date of this Agreement and any Rule 462 Registration Statement required in
connection with the offering and sale of the Shares shall have been filed and
become effective no later than 10:00 p.m., New York City time, on the date of
this Agreement.
(h) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the effectiveness
of the Registration Statement shall have been issued under the Securities Act or
proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(i) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may be, no
material adverse change or any development involving a prospective material
adverse change in the business, properties, prospects, management, financial
condition or results of operations of the Company and the Subsidiaries taken as
a whole shall occur or become known.
(j) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a certificate of
its Chief Executive Officer and its Chief Financial Officer in the form attached
as Exhibit B hereto.
(k) You shall have received signed Lock-up Agreements referred
to in Section 3(u) hereof.
(l) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Prospectus as of the time of purchase and,
if applicable, the additional time of purchase, as you may reasonably request.
(m) The Shares shall have been approved for listing on AMEX,
subject only to notice of issuance at or prior to the time of purchase or the
additional time of purchase, as the case may be.
(n) The Company will at the time of purchase deliver to the
Underwriter a warrant to purchase 200,000 shares of the Company's Common Stock.
Such warrant shall have an exercise price per share equal to $10.25.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Securities Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Securities Act is used, when the
parties hereto have executed and delivered this Agreement.
The obligations of the Underwriter hereunder shall be subject to
termination in the absolute discretion of the Underwriter, if (A) since the time
of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
been any material adverse change or any development involving a prospective
material adverse change in the business, properties, prospects, management,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, which would, in the Underwriter's judgment, make it
impracticable or inadvisable to proceed with the Offering or the delivery of the
Shares on the terms and in the manner contemplated in the Registration Statement
and the Prospectus; (B) since the time of execution of this Agreement, there
shall have occurred: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, AMEX or the Nasdaq National
Market; (ii) a suspension or material limitation in trading in the Company's
securities on AMEX; (iii) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a
national emergency or war; or (v) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in the
Underwriter's judgment makes it impracticable or inadvisable to proceed with the
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus; (C) since the
time of execution of this Agreement, there shall have occurred any downgrading,
or any notice or announcement shall have been given or made of (i) any intended
or potential downgrading or (ii) any watch, review or possible change that does
not indicate an affirmation or improvement in the rating accorded any securities
of or guaranteed by the Company or any Subsidiary by any "nationally recognized
statistical rating organization," as that term is defined in Rule 436(g)(2)
under the Securities Act; or (D) since the time of execution of this Agreement,
there shall have occurred any development involving any court or legislative or
other governmental or administrative investigation, action, order or decree,
which is not set forth or fully described in the Registration Statement and the
Prospectus and which would have a Material Adverse Effect, if in the
Underwriter's judgment such development makes it impracticable or inadvisable to
proceed with the Offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus.
If the Underwriter elects to terminate this Agreement as provided in
this Section 7, the Company shall be notified promptly in writing.
If the sale to the Underwriter of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriter for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(n), 5 and 8 hereof), and the Underwriter shall
be under no obligation or liability to the Company under this Agreement (except
to the extent provided in Section 8 hereof).
8. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
the Underwriter, its partners, directors, officers, counsel, employees and
agents, and any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, the
respective agents, employees, officers, managers, directors, partners, counsel,
members and shareholders of such persons, and the successors and assigns of all
of the foregoing persons, from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation) which the Underwriter
or any such person may incur under the Securities Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
8 being deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or such Prospectus or necessary
to make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information concerning such Underwriter furnished in writing
by or on behalf of such Underwriter through you to the Company expressly for use
in such Registration Statement or such Prospectus or arises out of or is based
upon any omission or alleged omission to state a material fact in connection
with such information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading, (ii) any
untrue statement or alleged untrue statement made by the Company in Section 3
hereof or the failure by the Company to perform when and as required any
agreement or covenant contained herein, or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or on
behalf of the Company including, without limitation, slides, videos, films or
tape recordings used in connection with the marketing of the Shares.
If any action, suit or proceeding (each, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, such Underwriter
or such person shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify the Company shall not relieve the Company from any liability which
the Company may have to any Underwriter or any such person or otherwise. Such
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless any Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have fully reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(b) The Underwriter agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Securities Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading.
If any Proceeding is brought against the Company or any such person
in respect of which indemnity may be sought against the Underwriter pursuant to
the foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to defend such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Underwriter shall not be liable for any settlement of any such Proceeding
effected without the written consent of such Underwriter but if settled with the
written consent of such Underwriter, such Underwriter agrees to indemnify and
hold harmless the Company and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 8 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriter, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriter on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriter was treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 8, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by the Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which the Underwriter has
otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in
this Section 8 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of the Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls the Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the
Company, its directors or officers or any person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and Underwriter agree promptly to notify
each other of the commencement of any Proceeding against it and, in the case of
the Company, against any of the Company's officers or directors in connection
with the issuance and sale of the Shares, or in connection with the Registration
Statement or the Prospectus.
9. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing and, if to the Underwriter,
shall be sufficient in all respects if delivered to Jefferies & Company, Inc.,
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Syndicate
Department and, if to the Company, shall be sufficient in all respects if
delivered to the Company at the offices of the Company at 000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxxx, XX 00000, Attention: T. Xxxxxxx Xxxxxxxx, President and
Chief Executive Officer with a copy to Xxxxxxx Xxxxxx, Esq., General Counsel,
Immtech International, Inc., Xxx Xxxxx Xxx Xxxxxx, Xxx Xxxx, XX 00000.
10. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
11. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against the Underwriter or any
indemnified party. Each of the Underwriter and the Company (on its behalf and,
to the extent permitted by applicable law, on behalf of its shareholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
12. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriter and the Company and to the
extent provided in Section 8 hereof the controlling persons, partners, directors
and officers referred to in such section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from the Underwriter) shall acquire or have any right under or
by virtue of this Agreement.
13. Counterparts. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
14. Successors and Assigns. This Agreement shall be binding upon the
Underwriter and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and the Underwriter's
businesses and/or assets.
If the foregoing correctly sets forth the understanding between the
Company and the Underwriter, please so indicate in the space provided below for
that purpose, whereupon this agreement and your acceptance shall constitute a
binding agreement between the Company and the Underwriter.
Very truly yours,
Immtech International, Inc.
By:
----------------------------------
Name: T. Xxxxxxx Xxxxxxxx
Title: President and CEO
Accepted and agreed to as of the
date first above written
JEFFERIES & COMPANY, INC.
By:
--------------------------
Name:
Title:
EXHIBIT A
Immtech International, Inc.
Common Stock
July 9, 2004
Jefferies & Company, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in
connection with the proposed Underwriting Agreement (the "Underwriting
Agreement") to be entered into by Immtech International, Inc. (the "Company")
and you, the Underwriter named therein, with respect to the public offering (the
"Offering") of Common Stock of the Company (the "Common Stock").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that for a period from the date hereof until the end of a
period of 90 days after the date of the final prospectus relating to the
Offering the undersigned will not, without the prior written consent of
Jefferies & Company, Inc. ("Jefferies"), (i) sell, offer to sell, contract or
agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities and
Exchange Commission (the "Commission") in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
with respect to, any Common Stock of the Company or any securities convertible
into or exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock, (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, whether any such transaction is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise, or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) the registration of or sale to the
Underwriter of any Common Stock pursuant to the Offering and the Underwriting
Agreement, (b) bona fide gifts, provided the recipient thereof agrees in writing
with the Underwriter to be bound by the terms of this Lock-Up Letter Agreement
or (c) dispositions to any trust for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, provided that such
trust agrees in writing with the Underwriter to be bound by the terms of this
Lock-Up Letter Agreement.
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, for a period from the date hereof until the end of a period
of 90 days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of Jefferies, make any
demand for, or exercise any right with respect to, the registration of Common
Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock.
If (i) the Company notifies you in writing that it does not intend
to proceed with the Offering, (ii) the registration statement filed with the
Securities and Exchange Commission with respect to the Offering is withdrawn or
(iii) for any reason the Underwriting Agreement shall be terminated prior to the
time of purchase (as defined in the Underwriting Agreement), this Lock-Up Letter
Agreement shall be terminated and the undersigned shall be released from its
obligations hereunder.
Yours very truly,
---------------------------------
Name:
EXHIBIT A-1
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
Name Position(s)
1. T. Xxxxxxx Xxxxxxxx President, Chief Executive Officer and Director
2. Xxxxxxx Xxxx Director and Executive Vice President
3. Xxxx X. Xxxxx Treasurer, Secretary and Chief Financial Officer
4. Xxxxx X Xxxxxxxx, Ph.D. Vice President, Licensing and Development
5. Xxxxxx X. Xxxxxx, M.D. Director
6. Xxxx Xxx Director
7. Levi X.X. Xxx, M.D. Director
8. Xxxx X. Xxxxxx Director
9. Xxxxxxxxx X. Xxxxxxxx Director
EXHIBIT B
OFFICERS' CERTIFICATE
IMMTECH INTERNATIONAL, INC.
We, T. Xxxxxxx Xxxxxxxx, President and Chief Executive Officer, and
Xxxx X. Xxxxx, Treasurer, Secretary and Chief Financial Officer, of Immtech
International, Inc., a Delaware corporation (the "Company"), do hereby deliver
this certificate pursuant to Section 6(_) of the Underwriting Agreement dated
______________, 2004 (the "Underwriting Agreement") by and among the Company and
Jefferies & Company, Inc. (the "Underwriter"), providing for the sale to the
Underwriter of up to ______________ shares of the Company's common stock, par
value $_____ per share (the "Common Stock"), including ___________ shares
subject to the Underwriter's over-allotment option; and do hereby certify as
follows:
(i) the representations and warranties of the Company in the
Underwriting Agreement are true and correct on and as of the date hereof
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be preformed or satisfied hereunder or
thereunder;
(ii) the conditions set forth in Sections 6(__) and 6(__) of the
Underwriting Agreement have been fulfilled and no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the Company's
knowledge, threatened by the Commission;
(iii) since the date of the Underwriting Agreement, there has not
been any downgrading, or any notice given of any intended or potential
downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded any of the
Company's securities by a "national recognized statistical rating
organization," as such terms is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(iv) we have reviewed the Registration Statement and the Prospectus,
and since the date of the most recent financial statements included in the
Prospectus (exclusive of any further supplements thereto), there has been
no material adverse change, or any development that would be reasonably
likely to result in a material adverse change, in the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any further supplements thereto).
Capitalized terms used in this certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Underwriting
Agreement. Xxxxxx & Xxxxxxx LLP is entitled to rely on this certificate in
connection with the opinion such firm is rendering pursuant to the Underwriting
Agreement.
Dated:
---------------
By:
--------------------------------
Name: T. Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
By:
--------------------------------
Name: Xxxx X. Xxxxx
Title: Treasurer, Secretary and Chief
Financial Officer
Annex A
Matters to be Covered in the Opinion of
of Cadwalader, Xxxxxxxxxx and Xxxx,
Counsel for the Company
Annex B
Matters to be Covered in the Opinion of
of Xxxxxx Xxxxxx White & XxXxxxxxx,
Solicitors and International Lawyers, Hong Kong
Counsel for the Company
Annex C
Matters to be Covered in the Opinion of
of Xxxxxxx, Xxxx & Xxxxxxx, British Virgin Islands
Counsel for the Company
