EXHIBIT 1.01
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CONFIDENTIAL
CENTAUR PHARMACEUTICALS, INC.
Common Stock
(par value $0.001 per share)
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U.S. Underwriting Agreement
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September 8, 1998
Bank X. Xxxxxxxx & Co AG
(the "GLOBAL COORDINATOR")
c/o Bank X. Xxxxxxxx & Co AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
The Underwriters named in Schedule 1 hereto
(the "U.S. MANAGERS")
Dear Sirs:
This agreement relates to the proposed offer and sale of up to 862,500 shares of
common stock, par value $0.001 per share (the "COMMON STOCK") of Centaur
Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY") pursuant the
issuance and sale by the Company of shares of Common Stock as follows (the
"OFFERING"):
(a) On July 10, 1998, August 7, 1998 and August 24, 1998, at meetings of the
Board of Directors of the Company duly called and held at which quorums
were present throughout, the Board of Directors duly adopted resolutions
authorizing the issuance and sale of an aggregate of 2,500,000 new shares
of Common Stock (the "NEW SHARES") by the Company.
(b) The Company proposes, subject to the terms and conditions stated herein, to
issue and sell 750,000 of such New Shares to the U.S. Managers (the "U.S.
NEW SHARES") to the U.S. Managers as set out herein.
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(c) In addition, the Company proposes, subject to the terms and conditions
stated herein, to sell to the U.S. Managers, at the election of the Global
Coordinator, up to 112,500 additional shares of Common Stock (the "U.S.
GREENSHOE SHARES"; and together with the U.S. New Shares, the "U.S. OFFERED
SHARES"). The Company further proposes, subject to the terms and
conditions stated in the International Underwriting Agreement (as
hereinafter defined) to sell to the International Managers, at the election
of the Global Coordinator, up to 262,500 additional shares of Common Stock
(the "INTERNATIONAL GREENSHOE SHARES"; and together with the U.S. Greenshoe
Shares, the "GREENSHOE SHARES"). The New Shares and the Greenshoe Shares
are collectively referred to herein as the "OFFERED SHARES".
1. Sale, Underwriting, Purchase and Listing
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Subject to the terms and conditions herein set forth:
(a) The Company agrees to sell to each U.S. Manager named in Schedule 1
hereto the U.S. New Shares with effect from the Closing Date (as
defined in Section 4 hereof) at a price to be agreed between the
Company and the Global Coordinator pursuant to a separate pricing
agreement (the "OFFER PRICE"); and each such U.S. Manager agrees,
severally and not jointly, to purchase from the Company such number of
U.S. New Shares as is set forth on Schedule 1 for such U.S. Manager, at
the Offer Price. The Company shall not be obligated to sell any New
Shares unless all of the New Shares are purchased by the Managers and
the U.S. Managers pursuant to this Agreement and the International
Underwriting Agreement. The U.S. Managers shall not be obligated to
purchase any U.S. New Shares unless the International New Shares are
purchased by the International Managers pursuant to the International
Underwriting Agreement.
(b) The Company mandated the Global Coordinator to make an application on
its behalf for the shares of Common Stock of the Company issued and
outstanding from time to time to be listed for trading with official
quotation (Hauptsegment) on the Swiss Exchange; and the Global
Coordinator agreed to make such application and to use its best efforts
to obtain such listing as promptly as possible. The Company agrees to
provide the Global Coordinator in due time with all documents and
information requested by the Global Coordinator to enable the Global
Coordinator to make such an application with the Swiss Exchange.
(c) Greenshoe Shares
(i) To the extent that in connection with the Offering any
transactions are carried out for the purpose of covering over-
allotments in the sale of the U.S. New Shares or in connection
with bona fide stabilization activities in accordance
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with local laws and regulations, and the Global Coordinator
determines on behalf of the U.S. Managers that additional shares
of Common Stock are needed in connection with such transaction,
the Company shall sell the U.S. Greenshoe Shares to the Global
Coordinator on behalf of the U.S. Managers such number of U.S.
Greenshoe Shares as shall be requested by the Global Coordinator
at the Offer Price.
(ii) The Global Coordinator shall notify the Company no later than
10.00 a.m. (Zurich time) on October 8, 1998 (the 30/th/ day
after the date of this Agreement) of the number of U.S.
Greenshoe Shares which will be required and the time and date
for payment for and delivery of such U.S. Greenshoe Shares
(which time and date shall not be less than four and not more
than eight business days after the exercise of such option, nor
in any event prior to the Closing Date).
(iii) Each U.S. Manager agrees, severally and not jointly, that such
U.S. Manager will purchase its pro rata share (based on its
aggregate obligation to purchase U.S. New Shares) of any U.S.
Greenshoe Shares at the Offer Price, subject to such adjustments
as the Global Coordinator in its absolute discretion shall
determine.
(d) Greenshoe Deposit
In order to facilitate the sale of the Offered Shares by the U.S.
Managers, the Company hereby agrees to deliver to the Global
Coordinator, as escrow agent, on the Closing Date a good faith deposit
in Swiss Francs in the amount equal to ____________ CHF [30% of the
aggregate Offer Price of the U.S. Greenshoe Shares] (the "GREENSHOE
DEPOSIT"), which shall be held in escrow by the Global Coordinator on
the following terms:
(i) In the event that the Global Coordinator shall request the
purchase of U.S. Greenshoe Shares pursuant and in accordance
with paragraph (c) of this Section 1, and the Company shall fail
to deliver such U.S. Greenshoe Shares on the Greenshoe Closing
Date in accordance with Section 4(e) of this Agreement, the
Global Coordinator, on behalf of the U.S. Managers, shall have
the right to retain such portion of the Greenshoe Deposit,
including any income from investments as set forth in clause
(iii) below, equal to the extent of any losses incurred by the
Global Coordinator as a result of such failed or delayed
delivery of the U.S. Greenshoe Shares. In no event shall the
Managers' remedies in the circumstances described in Section
1(d)(i) be limited to this Section 1(d)(i).
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(ii) (i) As soon as practicable after the Greenshoe Closing Date, if
the Global Coordinator shall have requested the purchase of U.S.
Greenshoe Shares pursuant to and in accordance with paragraph
(d) of this Section 1 and the Company has delivered the U.S.
Greenshoe Shares on the Greenshoe Closing Date in accordance
with Section 4(c) of this Agreement; (ii) on October 8, 1998 or
as soon as practicable thereafter if the Global Coordinator
shall not have requested the purchase of U.S. Greenshoe Shares
pursuant to and in accordance with paragraph (d) of this Section
1, and (iii) otherwise on October 18, 1998 (the 40/th/ day after
the date of this Agreement), any portion of the Greenshoe
Deposit not entitled to be retained by the Global Coordinator
pursuant to clause (i) above, shall be paid in full to the
Company, including any income from investments as set forth in
clause (iii) below. If the extent of the Global Coordinator's
losses incurred by any failed or delayed delivery cannot be
reasonably determined as described above on or prior to such
date, the Global Coordinator may retain the Greenshoe Deposit
until such losses can reasonably be determined.
(iii) The Global Coordinator shall invest the Greenshoe Deposit and
reinvest any income from such investments, unless written notice
to the contrary is received from the Company, in a U.S. dollar
denominated interest bearing money market deposit. Any income
from or interest on such investments shall be the property of
the Company and shall be paid to the party to whom the Greenshoe
Deposit is paid pursuant to clauses (i) and (ii) above.
(e) In consideration of the agreement by the U.S. Managers to purchase the
U.S. Offered Shares as set forth above, the Company shall pay to the
U.S. Managers aggregate management, selling and underwriting
commissions of 5.5 per cent of the Offer Price for each U.S. Offered
Share purchased from it (the "MANAGERS' COMMISSION"). The Global
Coordinator shall be entitled to deduct the Managers' Commission from
the Offer Price to be paid for the U.S. Offered Shares pursuant to
Section 4 of this Agreement.
(f) The Company understands that the U.S. Managers propose to make an
offering of the U.S. Offered Shares in the United States and Canada as
soon as the Global Coordinator deems advisable after this Agreement has
been executed and delivered.
(g) It is also understood that the Company is concurrently entering into an
agreement dated the date hereof (the "INTERNATIONAL UNDERWRITING
AGREEMENT") providing for the sale by the Company of an aggregate of up
to 2,012,500 shares of Common Stock (the "INTERNATIONAL OFFERED
SHARES"), including the overallotment option thereunder, through
arrangements with certain managers in Switzerland and elsewhere outside
the United States (the "INTERNATIONAL MANAGERS") for whom Bank
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X. Xxxxxxxx & Co AG is acting as lead manager and Global Coordinator.
Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the International
Underwriting Agreement are hereby expressly made conditional on one
another. The U.S. Managers hereunder and the International Managers are
simultaneously entering into an Agreement between International and
U.S. Underwriting Syndicates (the "AGREEMENT BETWEEN SYNDICATES") which
provides, among other things, for the transfer of shares of Common
Stock between the two syndicates.
(h) In connection with the offer and sale of the International Offered
Shares, the Company has prepared preliminary international prospectuses
dated August 6, 1998 and August 26, 1998 (each an "INITIAL
INTERNATIONAL PROSPECTUS"), and will prepare a final international
prospectus, expected to be dated September 9, 1998 (the "INTERNATIONAL
PROSPECTUS"), each in English, for use in connection with the offer and
sale of such shares. The Company hereby confirms that it has authorized
the use by the International Managers of each International Preliminary
Prospectus and the International Prospectus, as the same may be amended
or supplemented by the Company from time to time, in connection with
the offer and sale of such shares, for the period during which a
prospectus is required by applicable law to be delivered in connection
with sales of such shares.
(i) The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-57165)
under the Securities Act of 1933, as amended (the "1933 ACT") covering
the registration of the Offered Shares and any shares of Common Stock
sold hereunder that are sold or resold in the United States in
transactions not exempt from registration under Section 4(1) or 4(3) of
the 1933 Act, including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement,
the Company will either (i) prepare and file a prospectus in accordance
with the provisions of Rule 430A ("RULE 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 ACT
REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(B)") of the 1933
Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("RULE 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "TERM SHEET") in accordance with the provisions of Rule 434
and Rule 424(b). The information included in such prospectus or in such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part
of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "RULE 430A
INFORMATION" or (b) pursuant to paragraph (d) of Rule 434 is referred
to as "RULE 434 INFORMATION." Each prospectus used before such
registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the
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execution and delivery of this Agreement, is herein called a "U.S.
PRELIMINARY PROSPECTUS." Such registration statement, including the
exhibits thereto and schedules thereto at the time it became effective
and including the Rule 430A Information or the Rule 434 Information, as
applicable, is herein called the "REGISTRATION STATEMENT." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "RULE 462(B) REGISTRATION
STATEMENT," and after such filing the term "REGISTRATION STATEMENT"
shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the U.S. Managers for use in
connection with the offering of the Offered Shares is herein called the
"U.S. PROSPECTUS." If Rule 434 is relied on, the term "U.S. Prospectus"
shall refer to the U.S. Preliminary Prospectus dated August 26, 1998
together with the Term Sheet and all references in this Agreement to
the date of the Prospectus shall mean the date of the Term Sheet. For
purposes of this Agreement, all references to the Registration
Statement, any U.S. Preliminary Prospectus, the U.S. Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX"). The
Company hereby confirms that it has authorized the use by the U.S.
Managers of each U.S. Preliminary Prospectus and the U.S. Prospectus,
as the same may be amended or supplemented by the Company from time to
time, in connection with the offer and sale of the Offered Shares and
by underwriters and dealers for purposes of resales of shares of Common
Stock in the United States that are not exempt from Section 4(1) or
4(3) of the Securities Act. The U.S. Prospectus, the Initial
International Prospectuses and the International Prospectus are herein
collectively called the "PROSPECTUSES" and individually each, as
"PROSPECTUS."
2. Representations and Warranties
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(a) The Company represents and warrants, as of the date hereof, to each
U.S. 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.
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At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and
supplements thereto complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and
did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any
U.S. Prospectus, any U.S. Preliminary Prospectus and any
supplement thereto or prospectus wrapper prepared in connection
therewith, at their respective times of issuance and (except
with respect to any U.S. Preliminary Prospectus) at the Closing
Date (and, if any Greenshoe Shares are purchased, at the
Greenshoe Closing Date, as such U.S. Prospectus may be amended
or supplemented to such date), complied and will comply in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations; any International Prospectus, any Initial
International Prospectus and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their
respective times of issuance and (except with respect to any
Initial International Prospectus) at the Closing Date (and, if
any Greenshoe Shares are purchased, at the Greenshoe Closing
Date, as such International Prospectus may be amended or
supplemented to such date), complied and will comply in all
material respects with the requirements of the applicable laws
or regulations of Switzerland. Neither any Prospectus nor any
amendments or supplements thereto (including any prospectus
wrapper), at the time such Prospectus or any such amendment or
supplement was issued and at the Closing Date (and, if any
Greenshoe Shares are purchased, at the Greenshoe Closing Date,
as such Prospectus may be amended or supplemented to such
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 U.S. 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
U.S. Prospectus shall not be "materially different", as such
term is used in Rule 434, from the prospectus included in the
Registration Statement at the time it became effective. The
representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or any Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing
by any Manager through the Global Coordinator expressly for use
in the Registration Statement or any such Prospectus.
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Each U.S. Preliminary Prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each U.S.
Preliminary Prospectus and the U.S. Prospectus delivered to the
U.S. Managers and the International Managers for use in
connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in each Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement
and the International Underwriting Agreement, pursuant to
employee benefit plans referred to in each Prospectus, pursuant
to the conversion of the Company's preferred stock on the
Closing Date as described in each Prospectus or pursuant to the
exercise of options or warrants referred to in each
Prospectus). The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued 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 U.S.
Managers pursuant to Section 4 of this Agreement and to the
International Managers pursuant to the International
Underwriting Agreement on the Closing Date or Greenshoe Closing
Date, respectively, and payment therefore as provided herein
and therein, it will have delivered good and valid title
thereto to the U.S. Managers and the International Managers,
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 U.S. Managers and the
International Managers from the Company have been duly
authorized for issuance and sale to the U.S. Managers pursuant
to this Agreement and the International Underwriting Agreement
and, when issued and delivered by the Company pursuant to this
Agreement and the International Underwriting Agreement against
payment of the consideration set forth herein and therein, will
be validly issued and fully paid and non-assessable; the Common
Stock conforms to all statements relating thereto contained in
the Prospectuses and such description conforms to the rights
set forth in the instruments defining
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the same; no holder of the Offered Shares will be subject to
personal liability by reason of being such a holder; and the
issuance of the Offered Shares is not subject to the preemptive
or other similar rights of any security holder of the Company;
(v) Except as described in each of the Prospectuses, (i) there are
no outstanding securities of the Company convertible into or
exchangeable for, or warrants, rights or options to purchase
from the Company, or obligations of the Company to issue, the
Common Stock or any other class of shares of the Company; (ii)
all of the issued and outstanding capital stock of each
subsidiary of the Company (each a "SUBSIDIARY") has been duly
authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or indirectly, free and
clear of any liens, pledges, encumbrances, equities or claims;
and (iii) none of the outstanding shares of capital stock of
any Subsidiary was issued in violation of the preemptive or
similar rights of any security holder of such Subsidiary. The
Subsidiaries of the Company, 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 3 of this
Agreement relate to any Subsidiary of the Company, such
representation shall not be deemed breached by any facts or
circumstances that would not be reasonably likely to, singly or
in the aggregate, have a Material Adverse Effect.
(vi) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and
the 1933 Act Regulations;
(vii) Except as described in each of the Prospectuses, there has been
no action, suit, legal or arbitration proceeding by or against
the Company or any of its Subsidiaries within the last two
years and there is no such proceeding pending that has had, and
the Company does not believe that there are any 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) [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
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conduct of the business of the Company and its Subsidiaries as
currently conducted as described in each Prospectus; there are
no unresolved claims that the Company or any of its
Subsidiaries has infringed the patents, patent rights,
inventions, trademark rights, service marks, trade names or
copyrights of others and, to the best knowledge of the Company,
no persons are infringing the patents, patent rights,
inventions, trademark rights, service marks, trade names or
copyrights of the Company or any of its Subsidiaries, which
would be reasonably likely to, singly or in the aggregate, have
a Material Adverse Effect];
(ix) Each of the Company and each of its Subsidiaries has all
material concessions, licenses, franchises, permits,
authorizations, approvals and orders of and from all
governmental regulatory officials and bodies that are necessary
to own or lease its properties and to conduct its business as
currently conducted;
(x) No material 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) 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 each of the Prospectuses, in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract,
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indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or
assets of the Company or any Subsidiary is subject;
(xiv) Since the earlier of (i) the respective dates as of which the
information is given in the Registration Statement, each
Prospectus or (ii) June 30, 1998, (A) neither the Company nor
any of its Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree, (B) there has not been any change in the capital stock
of the Company, or any increase in long-term debt of the
Company and its Subsidiaries taken as a whole (except (i) as
described in each Prospectus, (ii) pursuant to this Agreement
and the International Underwriting Agreement, (iii) pursuant to
grants under employee benefit plans referred to in each
Prospectus, (iv) pursuant to the conversion of the Company's
preferred stock on the Closing Date as described in each
Prospectus or (v) pursuant to the exercise of options or
warrants referred to in each Prospectus), (C) there has not
been any significant decrease, 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, 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 each 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;
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(xvi) Each of the Company and its Subsidiaries has been duly
organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with full corporate power and authority to enter into this
Agreement and the International Underwriting Agreement and
consummate the transactions contemplated herein and therein (in
the case of the Company) and to own its properties and conduct
its business as currently conducted, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction other than its jurisdiction of incorporation in
which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure to
be so qualified or to be in good standing would not,
individually or in the aggregate, be reasonably likely to have
a Material Adverse Effect;
(xvii) Each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by
the Company and (other than the provisions of Section 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 and
the International Underwriting Agreement by the Company and the
consummation of the transactions contemplated herein and
(including the issuance and sale of the Offered Shares and the
use of the proceeds from the sale of the Offered Shares as
described in each Prospectus under the heading "USE OF
PROCEEDS") and compliance by the Company with its obligations
hereunder and under the International Underwriting Agreement
have been duly authorized by all necessary corporate action and
do not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company
or any Subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that
would not, singly or in the aggregate, be reasonably likely to
result in a Material Adverse Effect or impair the ability of
the Company to consummate, or otherwise materially adversely
affect, the
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transactions contemplated herein and in the International
Underwriting Agreement), nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any
of their assets, properties or operations (except, with respect
to foreign jurisdictions, for actions taken with the actual
knowledge or prior consent of the Global Coordinator). As used
herein, a "REPAYMENT EVENT" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
Subsidiary;
(xix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for
the performance by the Company of its obligations hereunder or
under the International Underwriting Agreement, in connection
with the offering, issuance or sale of the Offered Shares
hereunder or under the International Underwriting Agreement or
the consummation of the transactions contemplated by this
Agreement or the International Underwriting Agreement, except
(i) such as have been already obtained and are in full force
and effect or as may be required under the 1933 Act or the 0000
Xxx Xxxxxxxxxxx xx Xxxxxx Xxxxxx 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], (iii) the approval for listing of the
Common Stock by the Swiss Exchange, or (iv) 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 of
jurisdictions other than the United States and Switzerland.
(xx) There are no contracts or documents which are required to be
described in the Registration Statement or each Prospectus or
to be filed as exhibits to the Registration Statement which
have not been so described or filed as required;
(xxi) The Company is not, and upon the issuance and sale of the
Offered Shares as contemplated herein and in the International
Underwriting Agreement and the application of the net proceeds
therefrom as described in each Prospectus will not be, an
"investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended;
14
(xxii) Except as described in each 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 each 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 U.S.
Managers or the International Managers in connection with the
sale and delivery by it of Offered Shares to or for the
respective accounts of such purchaser or the U.S. Managers in
the manner contemplated by this Agreement or the International
Managers in the manner contemplated by the International
Underwriting 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 each Prospectus or (b)
do not, singly or in the aggregate, materially affect the value
of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of
its Subsidiaries; and all of the leases and subleases material
to the business of the Company and its Subsidiaries, considered
as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in each Prospectus, are
in full force and effect, and neither the Company nor any
Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the
Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
3. Offering by the U.S. Managers
-----------------------------
It is understood that the U.S. Managers propose to offer the Offered Shares
for sale to the public as set forth in the U.S. Prospectus.
15
4. Delivery and Payment
--------------------
(a) At the latest on September __, 1998, the Global Coordinator shall have
received the U.S. New Shares to be purchased by the U.S. Managers
through the book-entry facilities of Schweizerische Effekten Giro AG
("SEGA") from or on behalf of the Company for the accounts of such U.S.
Managers.
(b) At the latest on September __, 1998, the U.S. Managers shall give
instructions to the Global Coordinator as to the number of U.S. New
Shares to be credited against payment of the Offer Price on the Closing
Date to the accounts of the U.S. Managers through the book-entry
facilities of SEGA together with the details of such accounts.
(c) On or before the Business Day immediately preceding the Closing Date,
the Global Coordinator and the U.S. Managers, respectively, shall give
instructions to SEGA, as to the number of U.S. New Shares to be settled
on the Closing Date through the facilities of SEGA, 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.
(d) By 10 a.m. (local time in Zurich) on September 14, 1998 or at such
other time and date as the Company and the Global Coordinator on behalf
of the U.S. Managers may agree (the "CLOSING DATE"), the following
payments shall be made with value as of the Closing Date:
(i) Each U.S. Manager shall pay for the U.S. New Shares to be
purchased by it in Swiss Francs in the amounts and to the
account or accounts to be notified to it by the Global
Coordinator.
(ii) The Global Coordinator on behalf of the U.S. Managers shall pay
to the Company in Swiss Francs the Offer Price less the
Managers' Commission for the U.S. New Shares and such amounts
as are separately agreed in writing with the Company.
All payments referred to in this Section 4 shall be credited with value
as of the Closing Date to the relevant parties at the designated
accounts.
(e) (i) By 10 a.m. (local time in Zurich), on or prior to the date
three business days prior to the time and date designated by
the Global Coordinator for payment for and delivery of the
Greenshoe Shares pursuant to Section 1(d)(ii) hereof or at such
other time and date as the Company and the Global Coordinator
on behalf of the U.S. Managers may agree (the "GREENSHOE
CLOSING DATE"), the Global Coordinator on behalf of the U.S.
Managers shall give instructions to
16
the Company as to the number of U.S. Greenshoe Shares to be
credited on the Greenshoe Closing Date to the account of the
Global Coordinator at SEGA together with the details of such
accounts.
(ii) On the Greenshoe Closing Date, the Global Coordinator on behalf
of the U.S. Managers shall pay to the Company in Swiss Francs
the Offer Price for the U.S. Greenshoe Shares less the
Managers' Commission in respect thereof, such payments to be
credited for value as of the Greenshoe Closing Date or at such
other time as the Company and the Global Coordinator may agree.
(f) The documents to be delivered on the Closing Date and the Greenshoe
Closing Date, respectively, by or on behalf of the parties hereto
pursuant to Section 7 hereof will be delivered at the offices of the
Global Coordinator in Zurich or at such other location as the parties
hereto may agree (the "CLOSING LOCATION") on the Closing Date or the
Greenshoe Closing Date, as the case may be.
5. Agreements
----------
(a) The Company agrees with each U.S. Manager as follows:
(i) The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will
notify the Global Coordinator immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any
supplement to the U.S. Prospectus or any amended U.S.
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or
any amendment or supplement to the U.S. Prospectus or for
additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Offered Shares for
offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
17
(ii) The Company will give the Global Coordinator notice of its
intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time
it became effective or to any Prospectus, will furnish the
Global Coordinator 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 Global Coordinator or counsel for the U.S.
Managers and the International Managers shall object in good
faith.
(iii) The Company has furnished or will deliver to the U.S. Managers
and counsel for the U.S. Managers and the International
Managers, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith) and signed copies of all
consents and certificates of experts, and will also deliver to
the U.S. Managers, without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the U.S.
Managers. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Managers will be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(iv) The Company has delivered to each U.S. Manager, without charge,
as many copies of each U.S. Preliminary Prospectus as such
reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each U.S. Manager, without charge,
during the period when the U.S. Prospectus is required to be
delivered under the 1933 Act, such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Manager
may reasonably request. The U.S. Prospectus and any amendments
or supplements thereto furnished to the U.S. Managers will be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T. The Company will furnish to
each U.S. Manager, without charge, such number of copies of the
International Prospectus (as amended or supplemented) as such
U.S. Manager may reasonably request.
(v) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution
of the Offered Shares as contemplated in this Agreement and the
International Underwriting Agreement and in the Prospectuses.
If at any time when a prospectus is required by applicable law
to be delivered by the U.S. Managers in
18
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 U.S.
Managers and the International Managers or for the Company, to
amend the Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any
untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of such counsel, at any
such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the
requirements of applicable law, the Company will (i) with
respect to the U.S. Prospectus, promptly prepare and file with
the Commission, subject to Section 5(a)(ii), such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the U.S.
Prospectus comply with such requirements, (ii) with respect to
any Initial International Prospectus or the International
Prospectus, supplement such prospectus to correct such
statement or omission and (iii) the Company will furnish to the
U.S. Managers such number of copies of such amendment or
supplement as the U.S. Managers may reasonably request.
(vi) The Company will use its reasonable efforts, in cooperation
with the U.S. Managers, 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 Global Coordinator 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) 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.
19
(viii) The Company will use the net proceeds received by it from the
sale of the Offered Shares in the manner specified in each
Prospectus under "Use of Proceeds".
(ix) The Company, during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 ACT"), will file all documents
required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the
rules and regulations of the Commission thereunder.
(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) The Company will furnish to the Swiss Exchange, through the
Global Coordinator, any and all documents (including, without
limitation, an updated excerpt from the commercial register),
instruments, information and warranties that may be requested
by the Global Coordinator in order to obtain the listing of the
Common Stock for trading with official quotation on the Swiss
Exchange. The Company will sign the Initial International
Prospectus and the International Prospectus including the
relevant prospectus and any other necessary documents to
conform with the listing requirements of the Swiss Exchange,
and will deliver the same to the Global Coordinator in due
course to ensure the timely listing of the Common Stock.
(xii) The Company will not issue, or announce the intent to 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 from the
date hereof until three years from the date of initial
quotation of the Common Stock on the Swiss Exchange (the
"INITIAL LISTING DATE"), other than (i) pursuant to the
exercise of options and warrants outstanding as of the date
hereof or conversion of convertible securities outstanding on
the date hereof, (ii) pursuant to the exercise of options
granted, or the purchase of shares, under the Company's
employee benefit plans existing on the date hereof, (iii) in
connection with any acquisition of a 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 or (v) pursuant to this
Agreement and the International Underwriting Agreement, unless
(A) the issuance is approved by the Global Coordinator (which
approval may not unreasonably be withheld), (B) the issuance is
approved by a majority of the Company's stockholders present,
20
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 Nasdaq National Market, the New York
Stock Exchange or the American Stock Exchange, or (D) the
Company's stockholders are provided with the right to purchase
their pro rata share of the issuance; and
(xiii) It will bear and pay any issue, stamp or other transactional
duty or tax (including interest and penalties, if any) payable
in connection with the issue and sale of the New Shares and the
Greenshoe Shares.
(xiv) So long as the Common Stock is listed on the Swiss Exchange,
the Company shall comply with the publicity guidelines of the
listing rules of the Swiss Exchange.
6. Payment of Expenses
-------------------
The Company covenants and agrees with the several U.S. Managers that, in
addition to their other obligations hereunder and under the International
Underwriting Agreement upon the purchase by the U.S. Managers and the
International Managers of all of the New Shares, it will pay or cause to be
paid to the Global Coordinator for its own account up to a fixed sum in the
aggregate amount of 0.5% of the net proceeds to the Company from the sale
of the New Shares to the U.S. Managers and the International Managers (but
in no event more than CHF 600,000 in the aggregate pursuant to this
Agreement and the International Underwriting Agreement) to cover the
following costs:
(a) such expenses and listing fees as required in connection with the
listing of the Common Stock on the Swiss Exchange and the cost of the
listing advertisement;
(b) all expenses in connection with the preparation, printing and filing of
each U.S. Preliminary Prospectus, and any Term Sheets and each
Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the U.S. Managers;
(c) the out-of-pocket expenses (including fees and disbursements of legal
counsel to the U.S. Managers and the International Managers) incurred
by the Global Coordinator on behalf of the U.S. Managers and the
International Managers in connection with the transactions contemplated
by this Agreement and the International Underwriting Agreement;
21
(d) the cost and expenses of the Global Coordinator in connection with
"road show" presentations to be made to prospective investors;
(e) the cost of preparing certificates in definitive form representing
Offered Shares if required by the initial purchasers thereof in
connection with the Offering;
(f) all other expenses of the Global Coordinator.
In the event that all of the New Shares are not sold by the Company to the
U.S. Managers and the International Managers, other than by reason of a
breach of this Agreement or the International Underwriting Agreement by the
Company or any U.S. Manager or International Manager, as the case may be,
then the Company will pay or cause to be paid to the Global Coordinator for
its own account up to a fixed sum in the aggregate amount of 0.25% of the
net proceeds that would have been received by the Company from the sale of
the New Shares (but in no event more than CHF 300,000 in the aggregate
pursuant to this Agreement and the International Underwriting Agreement).
In addition, the Company covenants and agrees with the several U.S.
Managers that, in addition to their other obligations hereunder and under
the International Underwriting Agreement, it will bear the following costs:
(a) the fees and expenses of the Company's counsel, accountants and other
advisors; and
(b) the fees and expenses of any transfer agent or registrar for the
Offered Shares.
7. Conditions Precedent
--------------------
(a) The obligations of the several U.S. Managers to purchase and pay for
the U.S. Offered Shares are subject to the satisfaction of the
following conditions precedent:
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing
Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Managers and the
International Managers. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or,
if the
22
Company has elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule
424(b);
(ii) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material
respects at the Closing Date and, with respect to the U.S.
Greenshoe Shares, at the Greenshoe Closing Date, as if made at
the Closing Date and, with respect to the U.S. Greenshoe
Shares, at the Greenshoe Closing Date, and all covenants and
agreements herein contained to be performed on the part of the
Company and all conditions herein contained to be fulfilled or
complied with by the Company at or prior to the Closing Date
and, with respect to the U.S. Greenshoe Shares, at or prior to
the Greenshoe Closing Date shall have been performed, fulfilled
or complied with in all material respects;
(iii) approval by the Admission Board (Zulassungsstelle) of the Swiss
Exchange of the application for the Common Stock to be listed
for trading with official quotation on the Swiss Exchange;
(iv) delivery to the U.S. Managers, except to the extent waived by
the Global Coordinator in writing (x) on the Closing Date and
(y) on the Greenshoe Closing Date (except items D and E):
(A) legal opinions, substantially in the agreed form, from (aa)
Fenwick & West LLP, U.S. counsel to the Company, (bb), Xxxx
& Staehelin, Swiss counsel to the Company, (cc) Burns,
Doane, Xxxxxxx & Xxxxxx, patent counsel to the Company,
(dd) Kleinfeld, Xxxxxx and Xxxxxx, regulatory counsel to
the Company and (ee) Shearman & Sterling, counsel to the
Global Coordinator and the U.S. Managers and the
International Managers;
(B) a certificate addressed to the U.S. Managers signed by the
Company and dated the Closing Date (or the Greenshoe
Closing Date with respect to the U.S. Greenshoe Shares) to
the effect stated in Section 7(a)(ii);
(C) a comfort letter from the auditors of the Company
substantially in the agreed form;
(D) a copy of the Company's Certificate of Incorporation,
certified by the Secretary of State of the State of
Delaware as of the Closing Date or a date as near thereto
as possible;
23
(E) an agreement between the Company and the Global
Coordinator, signed by the Company, with respect to the
sale of an additional 1.6 million share of Common Stock at
the request of the Global Coordinator as described in the
Prospectuses and substantially in the agreed form.
(v) the resolutions of the Board of Directors of the Company
authorizing and approving the Offering and all actions taken or
to be taken in connection therewith including, without
limitation, the execution and delivery of this Agreement and
the International Underwriting Agreement and the implementation
of all transactions contemplated hereby and thereby, certified
by the Secretary of the Company;
(vi) each of the persons listed on Schedule 2 hereto (consisting of
the executive officers and directors of the Company and any
greater than 1% stockholder) shall have agreed that they will
not, for a period of 180 days following the effective date of
the Registration Statement, directly or indirectly, offer to
sell, grant any option for the sale of, or otherwise dispose
of, any shares of Common Stock or securities convertible into
or exchangeable for any such shares, except with the prior
written consent of the Global Coordinator substantially in the
agreed form; and
(vii) execution and delivery of a pricing agreement between the
Company and the Global Coordinator substantially in the agreed
form.
Documents in the agreed form means documents in the form signed for
identification on the date hereof by Shearman & Sterling.
(b) If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in
the case of any condition to the purchase of the U.S. Greenshoe Shares
on the Greenshoe Closing Date, the obligations of the several U.S.
Managers to purchase the U.S. Greenshoe Shares, may be terminated by
the Global Coordinator by notice to the Company at any time at or prior
to the Closing Date or the Greenshoe Closing Date, as the case may be,
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 or the International
Underwriting Agreement shall continue in full force and effect.
24
8. Termination
-----------
(a) The Global Coordinator (on behalf of the U.S. Managers) may, by notice
to the Company, terminate this Agreement at any time whereupon the
obligation of the U.S. Managers to purchase and pay for the U.S.
Offered Shares and to procure investors shall terminate if, in the
opinion of the Global Coordinator, (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 or 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 a pricing agreement is not entered into by September
8, 1998, the Global Coordinator (on behalf of the U.S. Managers) may,
by notice to the Company, terminate this Agreement.
(c) 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.
25
9. Indemnification
---------------
(a) The Company will indemnify and hold harmless each U.S. Manager against
any losses, claims, damages or liabilities, joint or several, to which
such U.S. 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 U.S. Preliminary Prospectus, the Registration
Statement or any Prospectus, including any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any U.S.
Preliminary Prospectus, the Registration Statement or any Prospectus,
including any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading or
(iii) any breach by the Company of its representations, warranties or
obligations under this Agreement or the International Underwriting
Agreement, and will reimburse each U.S. Manager for any legal or other
expenses reasonably incurred by such U.S. Manager in connection with
defending any such action or claim as such expenses are incurred;
provided that the Company shall not be liable to any U.S. Manager
--------
under this subsection (a) with respect to any Initial International
Prospectus or U.S. Preliminary Prospectus to the extent that any loss,
claim, damage or liability of such U.S. Manager results from the fact
that such U.S. Manager sold U.S. 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 International Prospectus or U.S. Prospectus,
as the case may be, as then amended or supplemented, in any case where
such delivery is required by applicable law if the Company had
previously furnished copies thereof to such U.S. Manager and loss,
claim, damage or liability of such U.S. Manager results from an untrue
statement or omission of a material fact contained in an Initial
International Prospectus or U.S. Preliminary Prospectus that was
corrected in the International Prospectus or U.S. Prospectus, as the
case may be (as amended or supplemented).
(b) Each U.S. 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 U.S.
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 U.S. 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
26
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any U.S.
Preliminary Prospectus, the Registration Statement or any Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such U.S. Manager
through the Global Coordinator expressly for use therein, or (ii) any
breach by such U.S. Manager of its representations, warranties or
obligations in this Agreement or the International Underwriting
Agreement, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability
hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which
it may have otherwise than under this Agreement. In case any such
action shall be brought against any indemnified 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 U.S.
27
Managers on the other from the offering of the U.S. Offered Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (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 U.S. Managers on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the U.S. Managers
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 U.S. Managers, in each case as set forth in the table
on the cover page of the Prospectuses. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company on the one hand or the U.S. Managers 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 U.S. Managers agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the U.S. Managers were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no U.S. Manager shall be
required to contribute any amount in excess of the amount by which the
total price at which the U.S. Offered Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such U.S. 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. The U.S. Managers' obligations in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
28
(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 each U.S. Manager and to each person, if any, who controls,
is controlled by or is under common control with any U.S. Manager; and
the obligations of the U.S. Managers under this Section 9 shall be in
addition to any liability which the respective U.S. Managers 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).
10. Representations and Indemnities to Survive
------------------------------------------
The respective indemnities, agreements, warranties and other statements of
the Company and the several U.S. Managers, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation (or
any statements as to the results thereof) made by or on behalf of any U.S.
Manager or any officer or director of any U.S. Manager or any person who
controls, is controlled by or is under common control with any U.S.
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 U.S. Offered Shares are not delivered by or on behalf
of the Company when and as required herein, and such non-delivery shall be
a result of a breach by the Company of its obligations hereunder, the
Company will reimburse the U.S. Managers through the Global Coordinator for
all out-of-pocket expenses approved in writing by the Global Coordinator,
including fees and disbursements of counsel, reasonably incurred by the
U.S. Managers in making preparations for the purchase, sale and delivery of
the U.S. Offered Shares not so delivered by the Company, but the Company
shall then be under no further liability to any U.S. Manager in respect of
such U.S. Offered Shares, except as provided in Sections 6 and 9 hereof.
Nothwithstanding the foregoing, in the event of a default of a U.S. Manager
in respect of its obligation to purchase any U.S. Offered Shares, the
Company shall be under no further liability to such U.S. Manager. In any
other event, any costs charges and expenses shall be paid as provided for
in Section 6.
29
12. Stabilisation
-------------
The Global Coordinator may, to the extent permitted by, and in accordance
with, applicable laws and regulations, overallot and effect transactions on
the Swiss Exchange or otherwise outside of the United States in connection
with the offer and sale of the Offered Shares with a view to establishing
or maintaining the market price of the Offered Shares at levels which might
not otherwise prevail but, in doing so, the Global Coordinator shall act as
agent of the U.S. Managers (as principals) and not as agent of the Company
and any profit or loss resulting from such overallotment and stabilisation
shall be retained or borne (as the case may be) by the U.S. Managers. The
Company shall not as a result of any action taken by the Global Coordinator
under this Section 12 be obliged to sell to the U.S. Managers any shares of
Common Stock in excess of the number of Offered Shares to be sold as set
forth in Section 1 of this Agreement.
13. Notices
-------
All statements, requests, notices and agreements, hereunder shall be in
writing with copies to each of the Global Coordinator and the Company, and
(i) if to the U.S. Managers shall be delivered or sent by international
courier, telex or facsimile transmission care of Bank X. Xxxxxxxx,
Xxxxxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxx: 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: Xxx Xxxxxx, facsimile transmission No. (000) 000-0000.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
14. Successors
----------
This Agreement shall be binding upon, and inure solely to the benefit of,
the U.S. Managers 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
any U.S. 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 any U.S. Manager
shall be deemed a successor or assign by reason merely of such purchase.
30
15. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
substantive law of Switzerland.
16. Submission to Jurisdiction
--------------------------
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by any U.S. Manager or by any officer or
director of any U.S. Manager or by any person who controls, is controlled
by or is under common control with any U.S. Manager arising out of or based
upon this Agreement or the International Underwriting Agreement or the
transactions contemplated herein or therein 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.
17. 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.
18. 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.
31
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, on
behalf of each of the U.S. Managers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the U.S. Managers and the
Company.
Very truly yours,
CENTAUR PHARMACEUTICALS, INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Accepted as of the date hereof:
VONTOBEL SECURITIES LTD.
Vector Securities International, Inc.
By: __________________________________
Duly Authorized Attorneys
BANK X. XXXXXXXX & CO AG,
solely in its capacity as Global Coordinator
By: _________________________________
Name:
Title:
SCHEDULE 1
__________
U.S. MANAGERS
_____________
| U.S.
| OFFERED
| SHARES
_____________________________________________|____________
Vector Securities International, Inc. |
|
_____________________________________________|____________
Vontobel Securities, Ltd., New York branch |
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
|
_____________________________________________|____________
|
TOTAL |
_____________________________________________|____________
SCHEDULE 2
__________
EXECUTIVE OFFICERS, DIRECTORS AND 1% STOCKHOLDERS
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxx X. Xxxxx
[additional 1% or greater stockholders]
