EXHIBIT 1.01
CENTAUR PHARMACEUTICALS, INC.
Common Stock
(par value $0.001 per share)
-------------------------
Underwriting Agreement
-----------------
March 7, 2000
Bank Vontobel AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
Dear Sirs:
This agreement relates to the proposed offer and sale of up to 1,904,169 shares
of common stock, par value $0.001 per share (the "Common Stock") of Centaur
Pharmaceuticals, Inc., a Delaware corporation (the "Company") pursuant to the
issuance and sale by the Company of shares of Common Stock as follows (the
"Offering"):
(a) On December 14-15 and February 25, 2000, at meetings of the Board of
Directors and on March 7, 2000 at a meeting of the Pricing Committee of
the Company duly called and held at which quorum were present throughout,
the Board of Directors and the Pricing Committee duly adopted resolutions
which, among other things, authorized the issuance and sale of up to an
aggregate of 1,904,169 new shares (the "Offered Shares") of Common Stock
by the Company at a price of $11.50 per share.
(b) The Company proposes, subject to the terms and conditions stated herein, to
issue and sell the Offered Shares to Bank Vontobel AG (the "Manager") as
set out herein
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1. Sale, Underwriting and Purchase
-------------------------------
Subject to the terms and conditions herein set forth:
(a) The Company agrees to sell to the Manager the Offered Shares with
effect from the Closing Date (as defined in Section 4 hereof) at a
price of $11.50 per share (the "Offer Price"); and the Manager agrees
to purchase from the Company the Offered Shares at the Offer Price.
(b) In consideration of the agreement by the Manager to purchase the
Offered Shares as set forth above, the Company shall pay to the
Manager a commission of 5.5 per cent of the Offer Price for each
Offered Share purchased from it (the "Commission"). The Manager shall
be entitled to deduct the Commission from the Offer Price to be paid
for the Offered Shares pursuant to Section 4 of this Agreement.
(c) The Company understands that Bank Vontobel AG proposes to make a
placement of certain of the Offered Shares in Switzerland and
elsewhere outside the United States to a limited number of
institutions and private investors as soon as they deem advisable
after this Agreement has been executed and delivered. It is also
understood that, concurrently therewith, Vontobel Securities Ltd., New
York Branch and eMedsecurities, Inc. propose to make an offering of
the remaining Offered Shares in the United States. The Offered Shares
to be purchased by Bank Vontobel AG and offered and sold in
Switzerland and elsewhere outside the United States are referred to
herein as the "International Offered Shares" and the Offered Shares to
be purchased by Bank Vontobel AG and offered and sold in the United
States by Vontobel Securities Ltd., New York Branch and
eMedsecurities, Inc. are referred to herein as the "U.S. Offered
Shares."
(d) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-96053)
under the Securities Act of 1933, as amended (the "1933 Act") covering
the registration of the U.S. Offered Shares and any International
Offered Shares sold hereunder that are sold or resold in the United
States in transactions not exempt from registration under Section 4(1)
or 4(3) of the 1933 Act, including the related preliminary prospectus
or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus
in accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon
Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a
term sheet (a "Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b). The information included in such prospectus or
in such Term Sheet, as
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the case may be, that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule
434 Information." Each prospectus used before such registration
statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "Preliminary
Prospectus." Such registration statement, including the exhibits
thereto and schedules thereto at the time it became effective and
including the Rule 430A Information or the Rule 434 Information, as
applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Manager for use in
connection with the offering of the Offered Shares is herein called
the "Prospectus." If Rule 434 is relied on, the term "Prospectus"
shall refer to the Preliminary Prospectus together with the Term Sheet
and all references in this Agreement to the date of the Prospectus
dated February 24, 2000 shall mean the date of the Term Sheet. For
purposes of this Agreement, all references to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
The Company hereby confirms that it has authorized the use by the
Manager, Vontobel Securities Ltd., New York Branch and eMedsecurities,
Inc. of each Preliminary Prospectus (in each case until the date of a
Preliminary Prospectus of more recent date) and the Prospectus, as the
same may be amended or supplemented by the Company from time to time,
in connection with the offer and sale of the Offered Shares and by
underwriters and dealers for purposes of resales of shares of Common
Stock in the United States that are not exempt from Section 4(1) or
4(3) of the 1933 Act.
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2. Representations and Warranties
------------------------------
(a) The Company represents and warrants, as of the date hereof, to the
Manager that:
(i) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements
thereto complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; any Prospectus, any
Preliminary Prospectus and any supplement thereto or prospectus
wrapper prepared in connection therewith, at their respective
times of issuance and (except with respect to any Preliminary
Prospectus) at the Closing Date, complied and will comply in all
material respects with the requirements of the 1933 Act, the 1933
Act Regulations and the applicable laws or regulations of
Switzerland, if any. Neither any Prospectus nor any amendments
or supplements thereto (including any prospectus wrapper), at the
time such Prospectus or any such amendment or supplement was
issued and (except with respect to any Preliminary Prospectus) at
the Closing Date, included or will include an untrue statement of
a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
No Preliminary Prospectus, at its time of issuance, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with
the requirements of Rule 434 and the Prospectus shall not be
"materially different", as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time
it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or any Prospectus made in
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reliance upon and in conformity with information furnished to the
Company in writing by the Manager expressly for use in the
Registration Statement or any such Prospectus.
Each Preliminary Prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the
1933 Act Regulations and each Preliminary Prospectus and the
Prospectus delivered to the Manager for use in connection with
this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement,
pursuant to employee benefit plans referred to in the Prospectus,
or pursuant to the exercise of options or warrants referred to in
the Prospectus). The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any security holder of
the Company;
(iii) Upon delivery of the Offered Shares to be delivered to the
Manager pursuant to Section 4 of this Agreement, and payment
therefore as provided herein and therein, it will have delivered
good and valid title thereto to the Manager, free and clear of
all liens, pledges, encumbrances, equities and claims; and there
exists no agreement or arrangement with respect to the voting,
sale or disposition of the Offered Shares sold by it;
(iv) The Offered Shares to be purchased by the Manager from the
Company have been duly authorized for issuance and sale to the
Manager pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein and therein, will be validly
issued and fully paid and non-assessable; the Common Stock
conforms to all descriptions thereof contained in the Prospectus
and such descriptions conform to the rights set forth in the
instruments defining the same; no holder of the Offered Shares
will be subject to personal liability by reason of being such a
holder; and the issuance of the Offered Shares is not subject to
the preemptive or other similar rights of any security holder of
the Company;
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(v) Except as described in the Prospectus, (i) there are no
outstanding securities of the Company convertible into or
exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, the Common
Stock or any other class of shares of the Company; (ii) all of
the issued and outstanding capital stock of each subsidiary of
the Company (each a "Subsidiary") has been duly authorized and
validly issued, is fully paid and non-assessable and such shares
of capital stock that is owned by the Company is owned directly
or indirectly, free and clear of any liens, pledges,
encumbrances, equities or claims; and (iii) none of the
outstanding shares of capital stock of any Subsidiary was issued
in violation of the preemptive or similar rights of any security
holder of such Subsidiary. The Subsidiaries of the Company,
considered in the aggregate as a single Subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. To the extent any of the representations of the
Company in Section 2 of this Agreement relate to any Subsidiary
or Subsidiaries of the Company, such representation shall not be
deemed breached or to be incorrect as a result of any facts or
circumstances relating to such Subsidiary or Subsidiaries that
would not be reasonable likely to, singly or in the aggregate,
have a Material Adverse Effect (as hereinafter defined).
(vi) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and
the 1933 Act Regulations;
(vii) Except as described in the Prospectus, there has been no
action, suit, legal or arbitration proceeding by or against the
Company or any of its Subsidiaries within the last two years and
there is no such proceeding pending that has had, and the Company
does not believe that there are any threatened legal or
arbitration proceedings by or against it or any of its
Subsidiaries which would be reasonably likely, singly or in the
aggregate, to have a material adverse effect on the business or
financial condition of the Company and its Subsidiaries taken as
a whole a ("Material Adverse Effect");
(viii) Except as described in the Prospectus, (A) the Company and its
Subsidiaries own or have had licensed to them or otherwise have
the benefit or use under the authority of the owners thereof of
all patents, patent rights, inventions, trademarks, service
marks, trade names and copyrights (in each case, registered or
not) which are necessary for the conduct of the business of the
Company and its Subsidiaries as currently conducted as described
in the Prospectus; (B) there are no material unresolved claims
that the Company or any of its Subsidiaries has infringed the
patents, patent rights, inventions,
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trademark rights, service marks, trade names or copyrights of
others and, to the best knowledge of the Company, no persons are
infringing the patents, patent rights, inventions, trademark
rights, service marks, trade names or copyrights of the Company
or any of its Subsidiaries, in each case in this clause (B) which
would be reasonably likely to, singly or in the aggregate, have a
Material Adverse Effect;
(ix) The Company and each of its Subsidiaries has all material
concessions, licenses, franchises, permits, authorizations,
approvals and orders of and from all governmental regulatory
officials and bodies that are necessary to own or lease its
properties and to conduct its business as currently conducted;
(x) No material labour dispute with the employees of the Company or
any of its Subsidiaries exists or is threatened or imminent;
(xi) The Company and each of its Subsidiaries has obtained any
permits, consents and authorizations required to be obtained by
it under laws or regulations relating to the protection of the
environment or concerning the handling, storage, disposal or
discharge of toxic materials (collectively "Environmental Laws")
in order to conduct their business as described in the
Prospectuses, and any such permits, consents and authorizations
remain in full force and effect. The Company and each of its
Subsidiaries is in compliance with the Environmental Laws in all
material respects, and there is no pending or, to the Company's
knowledge, threatened, action or proceeding against the Company
or any or its Subsidiaries alleging violations of the
Environmental Laws;
(xii) Except as described in the Prospectus, neither the Company nor
any of its Subsidiaries is currently prohibited from paying any
dividends or from making any other distribution on the Company's
or such Subsidiary's capital stock, respectively, out of positive
retained earnings or from repaying to the Company or its
stockholders, respectively, any loans or advances to such
Subsidiary from the Company or to the Company from such
stockholders, as the case may be;
(xiii) Neither the Company nor any of its Subsidiaries is (A) in
violation of its charter or by-laws or (B) except as described
in the Prospectus, in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its Subsidiaries is
a
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party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is
subject;
(xiv) Since the earlier of (i) the respective dates as of which the
information is given in the Registration Statement, the
Prospectus or (ii) December 31, 1999, (A) neither the Company nor
any of its Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
(B) there has not been any change in the capital stock of the
Company, or any increase in long-term debt of the Company and its
Subsidiaries taken as a whole (except (i) as described in the
Prospectus, (ii) pursuant to this Agreement, (iii) pursuant to
grants under employee benefit plans referred to in the
Prospectus, or (iv) pursuant to the exercise of options or
warrants referred to in the Prospectus), (C) there has not been
any significant change, when compared to the comparable period in
the prior year, in net loss or net loss per share of the Company
and its Subsidiaries taken as a whole (except as contemplated by
the Prospectus), and (D) there has not been any material adverse
change, or any development reasonably likely to result in a
material adverse change, in or affecting the condition (financial
or otherwise), business, stockholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole;
(xv) The financial statements included in the Registration Statement
and the Prospectus, together with the related schedules and
notes, present fairly in all material respects the financial
position of the Company at the dates indicated and the statements
of operations, stockholders' equity and cash flows of the Company
for the periods specified; said financial statements have been
prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules
included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
data included in each Prospectus have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement;
(xvi) The Company and each of its Subsidiaries has been duly
organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with full corporate power and authority to enter into this
Agreement and consummate the transactions contemplated herein and
therein (in the case of the Company) and to own its properties
and conduct its business as currently conducted, and has been
duly qualified as a
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foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction other than its
jurisdiction of incorporation in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or to
be in good standing would not, individually or in the aggregate,
be reasonably likely to have a Material Adverse Effect;
(xvii) This Agreement has been duly authorized, executed and
delivered by the Company and (other than the provisions of
Section 9 hereof, as to which the Company makes no
representation) constitutes the legal, valid, binding and
enforceable obligation of the Company, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and subject, as to enforceability, to general
principles of equity;
(xviii) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
herein (including the issuance and sale of the Offered Shares and
the use of the proceeds from the sale of the Offered Shares as
described in the Prospectus under the heading "Use of Proceeds")
and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do
not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary pursuant
to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any Subsidiary is subject
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not, singly or in the
aggregate, be reasonably likely to result in a Material Adverse
Effect or impair the ability of the Company to consummate, or
otherwise materially adversely affect, the transactions
contemplated herein), nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
assets, properties or operations (except, with respect to foreign
jurisdictions, for actions taken with the actual knowledge or
prior consent of the Manager). As used herein, a "Repayment
Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to
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require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary;
(xix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Offered
Shares hereunder or the consummation of the transactions
contemplated by this Agreement, except (i) such as have been
already obtained and are in full force and effect or as may be
required under the 1933 Act or the 1933 Act Regulations or United
States state securities laws, (ii) such as have been obtained
under the laws and regulations of jurisdictions outside the
United States in which the Offered Shares are offered, or (iii)
as may be required by the U.S. Securities and Exchange Commission
for the performance of the Company's obligations under Section 9
hereof; provided that no representation is made as to the
compliance of the Offering with the securities laws, other than
antifraud provisions thereof, of jurisdictions other than the
United States;
(xx) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not
been so described or filed as required;
(xxi) The Company is not, and upon the issuance and sale of the
Offered Shares as contemplated herein and the application of the
net proceeds therefrom as described in the Prospectus will not
be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended;
(xxii) Except as described in the Prospectus, there are no persons
with registration rights or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933
Act;
(xxiii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and
regulations thereunder, or is exempt therefrom;
(xxiv) Except as disclosed in the Prospectus, no issue, stamp or
other transactional duty or tax is payable by or on behalf of any
purchaser of Offered Shares from the Company or the Manager in
connection with the sale and delivery
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by it of Offered Shares to or for the respective accounts of such
purchaser or the Manager in the manner contemplated by this
Agreement; and
(xxv) The Company and its Subsidiaries have good and marketable title
to all real property owned by the Company and its Subsidiaries
and good title to all other material properties owned by them, in
each case free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do
not, singly or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company or any of its
Subsidiaries; and all of the leases and subleases material to the
business of the Company and its Subsidiaries, considered as one
enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any Subsidiary
has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
Subsidiary under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company or such
Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
3. Offering and Placement by the Manager
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(a) International Offered Shares. It is understood that the Manager
----------------------------
proposes to sell the International Offered Shares to a limited number
of institutional and private investors as set forth in the Preliminary
Prospectus prepared in connection with the currently contemplated
placement and the Prospectus and the Manager hereby represents and
warrants to, and agrees with the Company that:
(i) (A) The International Offered Shares may not be initially
offered or sold by it within the United States or to any
dealer who does not so agree. The International Offered
Shares have been registered in the United States solely for
purposes of the subsequent sale or resale of the
International Offered Shares in the United States in
transactions not exempt from registration under Section 4(1)
or 4(3) of the 1933 Act. It will not distribute any
prospectus (as defined in the 0000 Xxx) relating to the
Common Stock or the Offering in the United States or to any
dealer who does not so agree (except as contemplated by
clause (ii) below). "United States" means the United States
of America (including the States and the District of
Columbia), its territories, possessions and other areas
subject to its jurisdiction.
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(B) It will comply with prospectus delivery requirements in the
United States with respect to offers and sales of the Common
Stock by Vontobel Securities Ltd., New York Branch,
including, to the extent applicable, delivery of a copy of
the Prospectus to any purchaser or offeree within the United
States contacted by Vontobel Securities Ltd., New York
Branch with respect to any transaction that is part of this
distribution or that occurs within 365 days after the
effective date of the Registration Statement.
(ii) (A) It has not offered or sold and will not offer or sell any
International Offered Shares in the United Kingdom except in
circumstances which do not constitute an offer to the public
within the meaning of the Public Offer of Securities
Regulations 1995 (the "Regulations");
(B) It has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 and the
Regulations with respect to anything done by it in relation
to the International Offered Shares in, from or otherwise
involving the United Kingdom; and
(C) It has only issued or passed on, and will only issue or pass
on, in the United Kingdom, any Preliminary Prospectus, the
Prospectus or any other document received by it in
connection with the offering of the Offered Shares to a
person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996 (as amended) or is a person to whom
any Preliminary Prospectus, the Prospectus or the relevant
document may otherwise lawfully be issued or passed on;
(iii) No action has been or will be taken in any jurisdiction by the
Manager that would constitute a public offering of the
International Offered Shares or permit possession or distribution
of any Preliminary Prospectus, the Prospectus or any other
offering or publicity material relating to the International
Offered Shares in any country or jurisdiction where action for
that purpose is required, especially in Canada and Japan. The
Manager will comply with all applicable laws and regulations in
each jurisdiction in which it acquires, offers, sells or delivers
the Offered Shares or has in its possession or distributes a
Preliminary Prospectus, the Prospectus or any such other
material. The Manager will obtain any consent, approval or
permission required by it for, the acquisition, offer, sale or
delivery by it of the International Offered Shares under the laws
and regulations in force in any jurisdiction to which it is
subject or in or from which it makes any acquisition, offer,
sale, or delivery. The Manager is not authorized to make
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any representation or use any information in connection with the
issue and sale of the Offered Shares other than as contained in a
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto;
(iv) It has complied and will comply with all applicable Swiss laws
(including, without limitation, the Swiss Code of Obligations
(Schweizerisches Obligationenrecht) and the Swiss Stock Exchange
Act (Schweizerisches Borsen-und-Effektenhandelsgesetz) as in
effect from time to time), rules, regulations and governmental
and Stock Exchange orders, if any;
(b) U.S. Offered Shares.
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It is understood that the Manager proposes to offer the U.S. Offered
Shares for sale to the public in the United States through Vontobel
Securities Ltd., New York Branch and eMedsecurities, Inc. as set forth
in the Prospectus. The Manager will only offer and sell shares of Common
Stock in the United States to or through either Vontobel Securities
Ltd., New York Branch, or eMedsecurities, Inc. in each case pursuant to
an agreement in which such party agrees to offer and sell such shares
only in the United States and to comply with the prospectus delivery
requirements of the 1933 Act and the applicable securities laws of any
state in which such offers and sales are made.
4. Delivery and Payment
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(a) At the latest on March 8, 2000, the Manager shall have received
confirmation from ChaseMellon Shareholder Services, the Company's
transfer agent that the Offered Shares shall be available for closing
on March 10, 2000.
(b) On or before the Business Day immediately preceding the Closing Date,
the Manager, shall give instructions to SIS, as to the number of Offered
Shares to be settled on the Closing Date through the facilities of SIS,
together with the details of such accounts. As used in this Agreement,
"Business Day" means each day on which the Swiss Exchange ("Swiss
Exchange") is open for dealings.
(c) By 3:00 p.m. (local time in Zurich) on March 10, 2000 or at such other
time and date as the Company and the Manager may agree (the "Closing
Date"), the Manager shall pay to the Company in U.S. dollars the Offer
Price less the Commission for the Offered Shares and such amounts as are
separately agreed in writing with the Company.
(d) The documents to be delivered on the Closing Date, by or on behalf of
the parties hereto pursuant to Section 7 hereof will be delivered at the
offices of the Manager in Zurich or at such other location as the
parties hereto may agree (the "Closing
14
Location") on the Closing Date.
5. Agreements
----------
(a) The Company agrees with the Manager as follows:
(i) The Company, subject to clause (ii) below, will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will
notify the Manager immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of
any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Offered Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(ii) The Company will give the Manager notice of its intention to file
or prepare any amendment to the Registration Statement (including
any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to any
Prospectus, will furnish the Manager with copies of any such
documents a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file or use any such
document to which the Manager or counsel for the Manager shall
object in good faith.
(iii) The Company has furnished or will deliver to the Manager and
counsel for the Manager, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith) and signed copies of
all consents and certificates of experts, and will also deliver to
the Manager, without charge, a conformed copy of the
15
Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration
Statement and each amendment thereto furnished to the Manager
will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(iv) The Company will furnish to the Manager, without charge, during
the period when the Prospectus is required to be delivered under
the 1933 Act or under applicable foreign securities laws, such
number of copies of the Prospectus (as amended or supplemented)
as the Manager may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Manager will
be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(v) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution of
the Offered Shares as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by
applicable law to be delivered by the Manager in connection with
sales of the Offered Shares, any event shall occur or condition
shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Manager or for the Company,
to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of applicable law, the
Company will (i) promptly prepare and file with the Commission,
subject to Section 5(a)(ii), such amendment or supplement as may
be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements and (ii) furnish to the Manager such number of
copies of such amendment or supplement as the Manager may
reasonably request.
(vi) The Company will use its reasonable efforts, in cooperation with
the Manager, to qualify the Offered Shares for offering and sale
under the applicable securities laws of such United States states
and such other jurisdictions (domestic or foreign) as the
Manager may reasonably designate and to maintain such
qualifications in effect for a period of one year from the later
of the effective date of the Registration Statement and any Rule
462(b)
16
Registration Statement (or such lesser period as may be
required under applicable law); provided, however, that the
-------- -------
Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Offered Shares have
been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of one year
from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement (or such lesser period as may
be required under applicable law).
(vii) The Company will make generally available to its securityholders
as soon as practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last paragraph
of Section 11(a) of the 1933 Act.
(viii) The Company will use the net proceeds received by it from the
sale of the Offered Shares in the manner specified in the
Prospectus under "Use of Proceeds".
(ix) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the Securities Exchange Act of
1934 (the "1934 Act"), will file all documents required to be
filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(x) The Company will file with the Commission such information on
Form 10-Q or Form 10-K as may be required pursuant to Rule 463 of
the 1933 Act Regulations.
(xi) If the Company raises at least $40 million before December 31,
2000 in an initial public offering, in which its Common Stock is
listed or designated for listing on notice of issuance, on the
Swiss New Market, the NASDAQ National Market or the Neuer Market,
the Company will not issue shares of Common Stock or other
securities convertible or exchangeable into shares of Common
Stock or representing rights to subscribe for shares of Common
Stock, for a period of two years from the date of such initial
public offering other than (i) pursuant to the exercise of
options and warrants outstanding as of the date thereof or
conversion of convertible securities outstanding on the date
thereof, (ii) pursuant to the exercise of options granted, or the
purchase of shares, under the Company's employee benefit plans or
directors' plans existing on the date thereof, (iii) in
connection with any acquisition of a
17
company, technology or product, or any research, development,
manufacturing or marketing collaboration, or any other
transaction where the primary consideration for the issuance of
the shares is other than cash, (iv) up to 100,000 shares for
miscellaneous purposes or (v) pursuant to this Agreement, unless
(A) the issuance is approved by the Manager (which approval may
not be unreasonably be withheld), (B) the issuance is approved by
a majority of the Company's stockholders present, in person or by
proxy, at a stockholder meeting at which a quorum is present, or
by the written consent of holders of a majority of the Company's
outstanding Common Stock, (C) the Common Stock is then listed, or
designated for listing on notice of issuance, on the Swiss New
Market, the Nasdaq National Market or the Neuer Market or (D) the
Company's stockholders are provided with the right to purchase
their pro rata share of the issuance.
(xii) It will bear and pay any issue, stamp or other transactional
duty or tax (including interest and penalties, if any) payable
in connection with the issue of the Offered Shares.
6. Payment of Expenses
-------------------
The Company covenants and agrees with the Manager that, in addition to its
other obligations hereunder upon the purchase by the Manager of the Offered
Shares, the Company will pay or cause to be paid the following costs and
expenses:
(a) all expenses in connection with the preparation, printing, publication
and filing of the Registration Statement, each Preliminary Prospectus,
any Term Sheets and each Prospectus and any amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Manager and all other addressees;
(b) all costs related to the audit procedures of the Company's independent
accountants;
(c) the cost of preparing certificates in definitive form representing
Offered Shares if required by the initial purchasers thereof in
connection with the Offering;
(d) the Company's public relations expenses;
(e) the Company's SEC-filing and other fees and expenses;
(f) the fees and expenses of the Company's counsel and other advisors; and
(g) the fees and expenses of any transfer agent or registrar for the
Offered Shares.
18
(h) all expenses in connection with the qualification of the Offered
Shares for offering and sale under state securities laws, including
the fees and disbursements of counsel for the Manager in connection
with such qualification and in connection with the Blue Sky survey;
and
(i) the filing fees incident to, and the fees and disbursements of counsel
for the Manager in connection with, securing any required review by
the National Association of Securities Dealers, Inc. of the terms of
the sale of the Offered Shares.
In addition, the Company covenants and agrees with the Manager that, in
addition to their other obligations hereunder, it will reimburse the
Manager for all fees and disbursements incurred in connection with this
Offering by Shearman & Sterling, Burns, Doane, Xxxxxxx & Xxxxxx and
Kleinfeld, Xxxxxx and Xxxxxx.
It is agreed that eMedsecurities, Inc. will be responsible for any and all
costs and expenses incurred in connection with acquiring the necessary
qualification or authorization to offer and sell the Offered Shares in any
state where such qualification or authorization is required, including the
fees and disbursements of counsel for the Manager in connection with such
qualification or authorization.
7. Conditions Precedent
--------------------
(a) The obligations of the Manager to purchase and pay for the Offered
Shares are subject to the satisfaction of the following conditions
precedent:
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing
Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Manager. A prospectus
containing the Rule 430A Information shall have been filed with
the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements
of Rule 430A) or, if the Company has elected to rely upon Rule
434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b);
(ii) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material
respects at the Closing Date, as if made at the Closing Date,
and all covenants and agreements herein contained
19
to be performed on the part of the Company and all conditions
herein contained to be fulfilled or complied with by the Company
at or prior to the Closing Date shall have been performed,
fulfilled or complied with in all material respects;
(iii) delivery to the Manager, except to the extent waived by the
Manager in writing on the Closing Date:
(A) legal opinions, substantially in the agreed form, from (aa)
Fenwick & West LLP, U.S. counsel to the Company, (bb) Burns,
Doane, Xxxxxxx & Xxxxxx, patent counsel to the Company, (cc)
Kleinfeld, Xxxxxx and Xxxxxx, regulatory counsel to the
Company and (dd) Shearman & Sterling, counsel to the
Manager;
(B) a certificate addressed to the Manager signed by the Company
and dated the Closing Date to the effect stated in Section
7(a)(ii);
(C) a comfort letter from the auditors of the Company
substantially in the agreed form; and
(D) a copy of the Company's Certificate of Incorporation,
certified by the Secretary of State of the State of Delaware
as of the Closing Date or a date as near thereto as
possible;
(iv) the resolutions of the Board of Directors of the Company
authorizing and approving the Offering and all actions taken or
to be taken in connection therewith including, without
limitation, the execution and delivery of this Agreement and the
implementation of all transactions contemplated hereby and
thereby, certified by the Secretary of the Company.
(v) The Company shall have used its best efforts to take such
actions as may be requested by the Manager to obtain agreements
from holders of shares sold in this Offering that they will
not, for a period of 180 days following the effective date of
the IPO Registration Statement, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise
dispose of, any shares of the Company acquired in this Offering
or any other shares of Common Stock or securities convertible
into or exchangeable for any such shares then beneficially
owned by such holder.
Documents in the agreed form means documents in the form signed for
identification on the date hereof by Shearman & Sterling.
20
(b) If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Manager by notice to the Company at any time at or
prior to the Closing Date, and, subject to Sections 6 and 11 hereof,
such termination shall be without liability of any party to any other
party except that any liability (including as to indemnification) as a
result of any prior breach of the provisions of this Agreement shall
continue in full force and effect.
8. Termination
-----------
(a) The Manager may, by notice to the Company, terminate this Agreement at
any time whereupon the obligation of the Manager to purchase and pay
for the Offered Shares and to procure investors shall terminate if, in
the opinion of the Manager, (i) there has been, since the time of
execution of this Agreement, any material adverse change in the
financial condition, earnings or business affairs of the Company and
its Subsidiaries considered as one enterprise or (ii) there has
occurred any material adverse change in the financial markets in the
United Kingdom, the United States, Switzerland or the international
financial markets, any outbreak of hostilities or escalation thereof
or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial
or economic conditions in the United Kingdom, the United States or
Switzerland and the effect of any such material adverse change,
outbreak, escalation, calamity, crisis, change or development is such
as to make it impossible or impracticable to market the Offered Shares
or to enforce contracts for the sale of the Offered Shares, or (iii)
trading generally on either the Swiss Exchange, the London Stock
Exchange, the New York Stock Exchange or the Nasdaq National Market
has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities
have been required, by any of said exchanges or by such system or by
order of the United States Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) a banking moratorium has been declared
by the United States, New York State, Switzerland or the United
Kingdom, or (v) there has been a material change, or an official
announcement by a competent authority of a prospective material
change, in Swiss, United Kingdom or United States taxation affecting
the transfer of the Common Stock, or (vi) there has been any material
adverse change in currency rates between the U.S. dollar and the Swiss
franc, or (vii) additional exchange controls are imposed by
Switzerland or the United States.
(b) In the event that this Agreement is terminated pursuant to this
Section 8, the parties to this Agreement shall be released and
discharged from their respective obligations hereunder except for any
liability (including as to indemnification) of any party hereto as a
result of any prior breach by it of this Agreement. In such event any
costs, charges and expenses shall be paid as provided for in Section
6.
21
9. Indemnification
---------------
(a) The Company will indemnify and hold harmless the Manager against any
losses, claims, damages or liabilities, joint or several, to which the
Manager may become subject, under Swiss law, the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
any Prospectus, including any amendment or supplement thereto, (ii)
the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or any Prospectus, including
any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein in light of
the circumstances under which they were made not misleading or (iii)
any breach by the Company of its representations, warranties or
obligations under this Agreement, and will reimburse the Manager for
any legal or other expenses reasonably incurred by the Manager in
connection with defending any such action or claim as such expenses
are incurred; provided that the Company shall not be liable to the
Manager under this subsection (a) with respect to any Preliminary
Prospectus to the extent that any loss, claim, damage or liability of
the Manager results from the fact that the Manager sold Offered Shares
to a person to whom there was not given or sent, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented, if the Company had previously furnished
copies thereof to the Manager and the loss, claim, damage or liability
of the Manager results from an untrue statement or omission of a
material fact contained in a Preliminary Prospectus that was corrected
in the Prospectus (as amended or supplemented).
(b) The Manager will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become
subject, under Swiss law, the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) (A) an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or any Prospectus, including
any amendment or supplement thereto or (B) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or any Prospectus, including any amendment or supplement
thereto, a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which
they were made not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or any Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by the Manager expressly for use
22
therein, or (ii) any breach by the Manager of its representations,
warranties or obligations in this Agreement, and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than under this Agreement. In
case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall have the option to assume the
defense thereof including the employment of legal advisors approved by
the indemnified party (such approval not to be unreasonably withheld),
subject to the payment by the indemnifying party of all expenses. Any
indemnified party shall have the right to employ separate legal
advisors in any such action and defend or participate in the defense
thereof, but the fees and expenses of such legal advisors shall be
borne by such indemnified party, unless the indemnifying party has
specifically authorised the employment thereof or has failed to assume
such defense and to employ legal advisors approved as a aforesaid for
such purpose. The indemnifying party shall not be liable to indemnify
any indemnified party for any settlement of any claim, action or
demand made without its consent (such consent not to be unreasonably
withheld), unless the indemnifying party fails to assume the defense
thereof and to employ legal advisors as aforesaid for such purpose.
(d) If the indemnification provided for in this Section 9 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Manager on the other from the
offering of the Offered Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Manager on the other in connection with the statements or
omissions which resulted in such
23
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Manager on the other shall be deemed to be in the same proportion as
the total net proceeds from the Offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Manager, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company on the one hand or the Manager on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Manager agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this subsection (d), the Manager shall not be required to contribute
any amount in excess of the amount by which the total price at which
the Offered Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Manager has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which any of them may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Manager and to each person, if any, who controls, is
controlled by or is under common control with the Manager; and the
obligations of the Manager under this Section 9 shall be in addition
to any liability which the Manager may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director
and stockholder of the Company to the extent applicable and to each
person, if any, who controls, is controlled by or is under common
control with any of the foregoing (to the extent applicable).
24
10. Representations and Indemnities to Survive
------------------------------------------
The respective indemnities, agreements, warranties and other statements of
the Company and the Manager, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any
statements as to the results thereof) made by or on behalf of the Manager
or any officer or director of the Manager or any person who controls, is
controlled by or is under common control with the Manager, or made by or on
behalf of the Company or any officer or director of any of the foregoing or
any person who controls, is controlled by or is under common control with
the Company, and shall survive delivery of and payment for the Offered
Shares
11. Reimbursement on Termination or Default
---------------------------------------
If for any reason any Offered Shares are not delivered by or on behalf of
the Company when and as required herein (other than an immaterial delay in
delivery), and such non-delivery shall be a result of a breach by the
Company of its obligations hereunder, the Company will reimburse the
Manager for all out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred by the Manager in making preparations for the
purchase, sale and delivery of the Offered Shares not so delivered by the
Company, but the Company shall then be under no further liability to the
Manager in respect of such Offered Shares, except as provided in Section 9
hereof. Notwithstanding the foregoing, in the event of a default of the
Manager in respect of its obligation to purchase any Offered Shares, the
Company shall be under no further liability to the Manager. In any other
event, any costs, charges and expenses shall be paid as provided for in
Section 6.
12. Notices
-------
All statements, requests, notices and agreements, hereunder shall be in
writing with copies to the Company, and (i) if to the Manager shall be
delivered or sent by international courier, telex or facsimile transmission
to Bank Vontobel AG, Xxxxxxxxxxxxxx 0, 0000 Xxxxxx, Attention: Corporate
Finance, facsimile transmission No. (x00-0) 000-0000; and (ii) if to the
Company shall be delivered or sent by international courier or facsimile
transmission to Centaur Pharmaceuticals, Inc., 000 Xxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Day, facsimile transmission
No. (000) 000-0000. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
25
13. Successors
----------
This Agreement shall be binding upon, and inure solely to the benefit of,
the Manager and the Company and, to the extent provided in Section 9
hereof, the officers, directors and stockholders of, and each person who
controls, is controlled by or is under common control with the Company or
the Manager, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Shares from the Manager shall
be deemed a successor or assign by reason merely of such purchase.
14. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
substantive law of Switzerland.
15. Submission to Jurisdiction
--------------------------
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by the Manager or by any officer or director
of the Manager or by any person who controls, is controlled by or is under
common control with the Manager arising out of or based upon this Agreement
or the transactions contemplated herein shall be brought in the competent
commercial court (Handelsgericht) in Zurich, Switzerland, (ii) waives, to
the fullest extent it may effectively do so, any objection which it may now
or hereafter have to the laying of venue of any such proceeding and (iii)
submits to the exclusive jurisdiction of such court in any such suit,
action or proceeding.
16. Counterparts
------------
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
17. Severability
------------
Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be unenforceable or invalid under
applicable law, such provision shall be ineffective only to the extent of
such unenforceability or invalidity and be replaced by such valid and
enforceable provision which the parties bona fide consider to match as
closely as possible the invalid or unenforceable provision, attaining the
same or a similar economic effect. The remaining provisions of this
Agreement shall under all circumstances continue to be binding and in full
force and effect.
26
18. Effectiveness of this Agreement
-------------------------------
This agreement shall not be effective unless and until the Registration
Statement is declared effective by the Securities Exchange Commission.
27
If the foregoing is in accordance with your understanding, please sign and
return to us 8 counterparts hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Manager and the Company.
Very truly yours,
CENTAUR PHARMACEUTICALS, INC.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
BANK VONTOBEL AG
By:
---------------------------------
Name:
Title:
