[K&S DRAFT - 10/28/96]
TRIANGLE PHARMACEUTICALS, INC.
COMMON STOCK
($0.001 Par Value)
INTERNATIONAL UNDERWRITING AGREEMENT
October 31, 1996
INTERNATIONAL UNDERWRITING AGREEMENT
November , 1996
Xxxxxx, Read & Co. Inc.
Bear, Xxxxxxx International Limited
ING Baring Securities Limited
as representatives (the "International Representatives") of the several
underwriters listed on Schedule A hereto
c/x Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx x0000
Ladies and Gentlemen:
Triangle Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), proposes to sell to the several underwriters named in Schedule A
(the "Underwriters") an aggregate of 800,000 shares (the "International Shares")
of Common Stock, par value $0.001 per share (the "Common Stock"), of the
Company. The International Shares are described in the Prospectus that is
referred to below.
It is understood and agreed to by all parties that the Company is
concurrently entering into an underwriting agreement (the "U.S. Underwriting
Agreement") providing for the sale by the Company of an aggregate of 3,200,000
shares of Common Stock (the "U.S. Firm Shares" and, together with the
International Shares, the "Firm Shares"), and the granting of an over-allotment
option with respect to up to an aggregate of 600,000 additional shares
thereunder (the "Additional Shares" and, together with the U.S. Firm Shares, the
"U.S. Shares"), through certain underwriters in the United States and Canada
(the "U.S. Underwriters"), for whom Xxxxxx Read & Co. Inc. and Bear, Xxxxxxx &
Co. Inc. are acting as representatives (the "U.S. Representatives"). The U.S.
Shares and the International Shares are collectively referred to herein as the
"Shares". Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the U.S. Underwriting Agreement are
hereby expressly made conditional on one another.
The Underwriters hereunder and the U.S. Underwriters are
simultaneously entering into an Agreement Between U.S. and International
Underwriters (the "Agreement Between U.S. and International Underwriters") that
provides, among other things, for the transfer of shares of Common Stock between
the two syndicates and for consultation by the International Representatives
with the U.S. Representatives. Two forms of prospectus are to be used in
connection with the offering and sale of shares of Common Stock contemplated by
the foregoing, one relating to the International Shares and the other relating
to the U.S. Shares. The latter form of prospectus will be identical to the
former except for the outside front and back cover pages as included in the
registration statement and amendments thereto.
References herein to any Preliminary Prospectus or Prospectus (in each case as
hereinafter defined), whether amended or supplemented, shall include both the
international and U.S. versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including related definitions
of terms, which are also used elsewhere herein) and, for purposes of applying
the same, references (whether in these precise words or their equivalent) in the
incorporated provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares as defined above, to the
"International Shares" shall be to the "U.S. Shares", to "this Agreement",
"hereunder" or "hereof" (meaning therein in the U.S. Underwriting Agreement)
shall be to this Agreement (except where this Agreement is already referred to
or as the context otherwise may require) and to the "U.S. Representatives"
(except where the International Representatives are already referred to or as
the context may otherwise require) shall be to the addressees of this Agreement
and, in general, all such provisions and defined terms shall be applied MUTATIS
MUTANDIS as if the incorporated provisions were set forth in full herein having
regard to their context in this Agreement as opposed to the U.S. Underwriting
Agreement.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1, including prospectuses
relating to the International Shares and the U.S. Shares. The Company has
furnished to you, for use by the Underwriters and by dealers, copies of one or
more preliminary prospectuses (collectively, the "Preliminary Prospectus").
Except where the context otherwise requires, the registration statement as in
effect at the time of execution of this Agreement or, if the registration
statement is not yet effective, as amended when it becomes effective, including
all documents filed as a part thereof, and including any information contained
in a prospectus subsequently filed with the Commission pursuant to Rule 424(b)
or Rule 434(b) under the Act and deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Act and, if
applicable, any registration statement filed pursuant to Rule 462(b) under the
Act, and any "term sheet" described in Rule 434(b) under the Act that is deemed
to be a part of such registration statement pursuant to Rule 434(d) under the
Act (a "Term Sheet"), is herein called the "Registration Statement", and the
prospectus, any Term Sheet that, in addition to the related preliminary
prospectus, constitutes a part thereof pursuant to Rule 434(a) under the Act and
any prospectus required pursuant to Rule 434(b)(3) of the Act (the "Integrated
Prospectus"), each in the form filed by the Company with the Commission pursuant
to Rule 424(b) under the Act or, if none of such filings is required, in the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the "Prospectus". Any reference herein to
the "date" of a Prospectus that includes a Term Sheet shall mean the date of
such Term Sheet.
The Company and the Underwriters agree as follows:
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1. SALE AND PURCHASE. On the basis of the representations and
warranties and the other terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters the International Shares and each
of the Underwriters, severally and not jointly, agrees to purchase from the
Company the number of International Shares set forth opposite the name of such
Underwriter on Schedule A, at a purchase price of $______ per Share. You may
release the International Firm Shares for public sale promptly after this
Agreement becomes effective. You may from time to time increase or decrease the
public offering price after the initial public offering to such extent as you
may determine
2. PAYMENT AND DELIVERY. Payment of the purchase price for the
International Shares shall be made to the Company, at the Company's election
(which shall be made in writing at least two business days prior to the time of
purchase (as hereinafter defined)), by wire transfer to an account designated by
the Company, or by certified or official bank check, in New York Clearing House
funds, at the office of Xxxxxx, Read & Co. Inc. in New York City, against
delivery of the International Shares for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 a.m., New York
City time, on November __, 1996 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8). The time at which such payment and delivery are actually made is called the
"time of purchase". The International Shares shall be delivered in such name
and in such denominations as you shall specify on the second business day(1)
preceding the time of purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company makes
to each of the Underwriters the same respective representations and warranties
made by the Company in Section 3 of the U.S. Underwriting Agreement, which
Section is incorporated herein by reference.
4. CERTAIN COVENANTS OF THE COMPANY. The Company makes to the
Underwriters the same respective covenants made by the Company in Section 4 of
the U.S. Underwriting Agreement, which Section is incorporated herein by
reference.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this (i) Agreement
pursuant to the first two paragraphs of Section 8, (ii) the termination of this
Agreement as a result of the failure of the closing of the purchase and sale of
the U.S. Shares concurrently with the closing of the purchase and sale of the
International Shares hereunder if such failure is a result of the termination of
the U.S. Underwriting Agreement pursuant to the first two paragraphs of
Section 8 thereof or the default by one or more of the U.S. Underwriters in its
or their respective obligations thereunder or (iii) the default by one or more
of the Underwriters in its
_______________________
(1) As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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or their respective obligations hereunder, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase, the performance by the Company of its obligations hereunder and to
conditions identical to those set forth in Section 6 of the U.S. Underwriting
Agreement, which Section is incorporated herein by reference.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if neither Rule 430A nor Rule 434 under the Act is used,
when you shall have received notification of the effectiveness of the
Registration Statement, or (ii) if either Rule 430A or Rule 434 under the Act is
used, when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in your absolute discretion if, at any time prior to the time of
purchase, trading in securities generally on the New York Stock Exchange shall
have been suspended or minimum prices shall have been established on the New
York Stock Exchange, or if a general banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any material outbreak or escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on, or any material adverse change in, any financial market which, in
each case, in your judgment makes it impracticable to market the International
Shares or the U.S. Shares.
If you elect to terminate this Agreement as provided in this Section
7, the Company and each other Underwriter shall be notified promptly by written
notice transmitted by facsimile and confirmed by written notice sent by
registered mail, return receipt requested.
If the sale to the Underwriters of the International Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company shall be unable to comply with any of the terms of this Agreement,
the Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 5 and 9), and the Underwriters shall
be under no obligation or liability to the Company under this Agreement (except
to the extent provided in Section 9).
8. INCREASE IN UNDERWRITERS' COMMITMENTS. If any Underwriter shall
default in its obligation to take up and pay for the International Shares to be
purchased by it hereunder and if the number of International Shares that all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the total number of
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International Shares, the non-defaulting Underwriters shall take up and pay for
(in addition to the aggregate principal amount of International Shares they are
obligated to purchase pursuant to Section 1) the number of International Shares
agreed to be purchased by all such defaulting Underwriters as hereinafter
provided. Such International Shares shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such International Shares shall be taken up and paid
for by all non-defaulting Underwriters pro rata in proportion to the aggregate
number of International Shares set opposite the names of such non-defaulting
Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any International Shares hereunder unless all of the International
Shares are purchased by the Underwriters (or by substituted underwriters
selected by you with the approval of the Company or selected by the Company with
your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary change in the Registration Statement and the
Prospectus our other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
9. INDEMNITY BY THE COMPANY AND THE UNDERWRITERS.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, each person that controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (collectively, the
"Underwriter indemnified parties") from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including the reasonable fees and
expenses of counsel and other reasonable expenses in connection with
investigating, defending or settling any such action or claim) as they are
incurred (and regardless of whether the Underwriter indemnified party is a party
to the litigation, if any) that, jointly or severally, any such Underwriter
indemnified party may incur under the Act, the Exchange Act, or otherwise,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, judgments, liabilities or expenses arise out of or are
based upon any such untrue statement or alleged untrue statement contained in
and in conformity with information with respect to any
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Underwriter furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use therein with reference to such Underwriter or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
either such Registration Statement or Prospectus or necessary to make such
information not misleading; PROVIDED, HOWEVER, that the indemnity agreement with
respect to any Preliminary Prospectus or the Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, to the extent and only to the extent that the
delivery of the Prospectus (as so amended or supplemented) would have eliminated
any such loss, claim, damage or liability. This indemnity agreement will be in
addition to any liability the Company otherwise may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Underwriter indemnified party with respect to which indemnity may be sought
against the Company pursuant to this Section 9, such Underwriter indemnified
party shall promptly notify the Company in writing, and the Company shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to the Underwriter indemnified party and payment of all fees and expenses. An
Underwriter indemnified party shall have the right to employ separate counsel in
any such action or proceeding and to assume the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Underwriter
indemnified party unless (i) the employment of such counsel has been authorized
in writing by the Company, (ii) the Company has failed promptly after receipt of
such notice to assume the defense and employ counsel reasonably satisfactory to
the Underwriter indemnified party, or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both one or more
Underwriter indemnified parties and the Company, and such Underwriter
indemnified parties shall have reasonably concluded that there may be one or
more legal defenses available to it that are different from or additional to
those available to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Underwriter
indemnified parties), in any of which events such fees and expenses shall be
borne by the Company, and reimbursed as they are incurred (it being understood
that the Company shall not be liable for the fees and expenses of more than one
separate law firm (in addition to any local counsel) for all Underwriter
indemnified parties in any one action or series of related transactions in the
same jurisdiction). The Company shall not be liable for any settlement of any
such action effected without the written consent of the Company (which consent
shall not be unreasonably withheld or delayed), but if settled with the written
consent of the Company, or if there is a final judgment with respect thereto,
the Company agrees to indemnify and hold harmless each Underwriter indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
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(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
and any person that controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (collectively, the "Company indemnified
parties") from and against any losses, claims, damages, judgments, liabilities
and expenses to the same extent as the foregoing indemnity from the Company to
the Underwriter indemnified parties, but only with respect to information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with respect to such
Underwriter in the Registration Statement, any Preliminary Prospectus or the
Prospectus. In case any action shall be brought against any Company indemnified
party based on the Registration Statement, any Preliminary Prospectus or the
Prospectus and in respect of which indemnity may be sought against any
Underwriter pursuant to this Section 9(c), such Underwriter shall have the
rights and duties given to the Company by Section 9(b) (except that if the
Company shall have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof; PROVIDED that the fees and expenses of such separate
counsel shall be at the expense of such Underwriter), and the Company
indemnified parties shall have the rights and duties given to the Underwriter
indemnified parties by Section 9(b).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless any Underwriter indemnified
party or any Company indemnified party, then the party required to indemnify
such indemnified party under this Section 9, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, judgments,
liabilities and expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages, judgments, liabilities
or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand shall be deemed to be in the same proportion as the total
proceeds from the offering of the Shares (net of underwriting discounts and
commissions but before deducting expenses) received by the Company bears to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, judgments, liabilities and expenses referred
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to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any claim or action.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation or by any other method of allocation (even if the Underwriters
were treated as one entity for such purpose) that does not take account of the
equitable considerations referred to in this Section 9(d). Notwithstanding the
provisions of this Section 9(d), no Underwriter indemnified party shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter indemnified party and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter indemnified party otherwise has been required to
pay by reason of such untrue statement or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to their respective underwriting commitments and are not joint.
The Company hereby acknowledges and agrees with the Underwriters that
the statements set forth in the last paragraph on the cover page of the
Prospectus, the paragraph in boldface type on the inside cover of the
Prospectus relating to stabilization, the list of Underwriters and U.S.
Underwriters under the caption "Underwriting" in the Prospectus and the
statements relating to the selling concession and reallowance in the third
paragraph below the tables under the caption "Underwriting" in the Prospectus
constitute the only information furnished to the Company in writing by the
Underwriters expressly for use in the Registration statement, any Preliminary
Prospectus or the Prospectus.
(e) The indemnity and contribution agreements contained in this
Section 9 and the representations, warranties and covenants of the Company
contained in this Agreement shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter indemnified party or
by or on behalf of any Company indemnified party, and shall survive any
termination of this Agreement or the issuance and delivery of the International
Shares. Subject to the provisions of Section 9(b) and Section 9(c), the Company
and each Underwriter agree promptly to notify the other of the commencement of
any litigation or proceeding against it in connection with the issuance and sale
of the International Shares or in connection with the Registration Statement or
the Prospectus.
10. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department; and if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the Company
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at Triangle Pharmaceuticals, Inc., 0 Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxxx Xxxxx.
11. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE
BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS
AGREEMENT.
12. PARTIES AT INTEREST. The agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company, the Underwriter
indemnified parties and the Company indemnified parties and their respective
successors, assigns, executors and administrators. No other person,
partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
13. COUNTERPARTS. This Agreement may be signed by the parties in
counterparts, which together shall constitute one and the same agreement among
the parties.
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If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
such purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
TRIANGLE PHARMACEUTICALS, INC.
By:
---------------------------
Accepted and agreed to as of the date first
above written, on behalf of themselves
and the other several Underwriters
named in Schedule A
XXXXXX, READ & CO. INC.
BEAR, XXXXXXX INTERNATIONAL LIMITED
ING BARING SECURITIES LIMITED
By: XXXXXX, READ & CO. INC.
By:
----------------------------------
Name:
Title:
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SCHEDULE A
Underwriters Number of International Shares
Xxxxxx, Read & Co. Inc.......................... [ ]
Bear, Xxxxxxx International Limited.......... [ ]
ING Baring Securities Limited.................... [ ]
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