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Exhibit 1.1
3,000,000 SHARES
HUMAN GENOME SCIENCES, INC.
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
, 1997
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXX XXXXXX INC.
UBS SECURITIES LLC
As Representatives of the several
Underwriters named in Schedule 1,
C/X XXXXXX BROTHERS INC.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Human Genome Sciences, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule 1 hereto (the "Underwriters") 3,000,000 shares (the "Firm Shares") of
the Company's Common Stock, $.01 par value per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 450,000 shares of Common Stock on the terms and
for the purposes set forth in Section 2 (the "Option Shares"). The Firm Shares
and the Option Shares, if purchased, are hereinafter collectively called the
"Shares." This is to confirm the agreement concerning the purchase of the
Shares from the Company by the Underwriters.
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1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File
No.333-22293) with respect to the Shares has (i) been prepared by the Company
in conformity with the requirements of the United States Securities Act of 1933
(the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. If any
post-effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. Copies of
such registration statement and all amendments thereto, including
post-effective amendments, if any, have been delivered by the Company to you as
the representatives (the "Representatives") of the Underwriters. As used in
this Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto or
any related registration statement filed pursuant to Rule 462(b), if any, was
declared effective by the Commission; "Effective Date" means the date of the
Effective Time; "Preliminary Prospectus" means each prospectus included in such
registration statement or amendments thereof, before it became effective under
the Securities Act and any prospectus filed with the Commission by the Company
with the consent of the Representatives pursuant to Rule 424(a) of the Rules
and Regulations; "Registration Statement" means such registration statement, as
amended at the Effective Time, including any documents incorporated by
reference therein at such time and all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 5 hereof and deemed to be a part of the
registration statement as of the Effective Time pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations; if the Company has filed or files a
registration statement under Rule 462(b) of the Rules and Regulations ("Rule
462(b)") to register additional shares (a "462(b) Registration Statement"),
then the term "Registration Statement" shall be deemed to include the 462(b)
Registration Statement; and "Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of
the Rules and Regulations. References made herein to any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary Prospectus or the
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Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange Act of
1934 (the "Exchange Act") after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; and any reference
to any amendment to the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. The Commission has
not issued any order preventing or suspending the use of any Preliminary
Prospectus or Prospectus or the effectiveness of the Registration Statement,
and no proceeding for any such purpose has been initiated or, to the best of
the Company's knowledge, threatened by the Commission.
(b) The Company meets the requirements for use of
Form S-3 under the Securities Act, and the Registration Statement conforms, and
the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and do not and
will not, as of the applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date (as to a
prospectus and any amendment or supplement thereto) 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; provided
that the Company makes no representation or warranty as to information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein. There is no contract or document required
to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or filed as
required.
(c) The documents incorporated by reference in
the Prospectus or from which information is so incorporated by reference, at
the time they became effective or were filed with the Commission, complied in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of State of
Delaware, is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or leasing of property
or the conduct of its business requires such qualification, and has all
corporate power and authority necessary to own or hold its properties and to
conduct the business in which it is engaged, except where the failure to so
qualify would not have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company. The
Company has no subsidiaries (as defined in Section 15 hereof).
(e) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the outstanding shares of capital
stock of the Company have been duly authorized and validly issued, are fully
paid and non-assessable and conform to the description thereof contained in the
Prospectus. There are no preemptive rights or other rights to subscribe for or
to purchase, or any restriction upon the voting or transfer of, any shares of
capital stock pursuant to the Company's Articles of Incorporation, By-laws or
other governing documents or any agreement or other instrument to which the
Company is a party or by which it may be bound, except pursuant to the
Company's stock option and employee stock purchase plans described in the
Prospectus.
(f) The Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and not be
subject to any preemptive rights; and the Shares will conform to the
description thereof contained in the Prospectus.
(g) The Company has full right, corporate power
and authority to enter into this Agreement and to perform and discharge its
obligations hereunder, and this Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and legally binding
agreement of the Company, enforceable in accordance with its terms, except as
(x) the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws and (y) the availability
of equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding in equity or at
law).
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(h) The execution, delivery and performance of
this Agreement by the Company and the consummation of the transactions
contemplated hereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the Certificate of
Incorporation or By-laws or other organizational documents of the Company, as
amended, or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or assets; and except for the registration of the Shares under the
Securities Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable blue
sky, state or foreign securities laws and the rules of the Nasdaq National
Market in connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby.
(i) Other than rights held by Bear Xxxxxxx
International Limited, Oxford Bioscience Partners L.P., Oxford Bioscience
Partners (Adjunct) L.P., Oxford Bioscience Partners (Bermuda) Limited
Partnership, HealthCare Ventures III, L.P., HealthCare Ventures IV, L.P., Aetna
Life Insurance Company, members of the Bass family and certain related persons
who entered into a Stock Purchase Agreement with HealthCare Ventures III, L.P.
and HealthCare Ventures IV, L.P. dated April 10, 1996 (the "Bass Group"),
SmithKline Xxxxxxx Corporation, MMC/GATX Partnership No. 1, and Rho Management
Trust III, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such or to include securities
for registration in a registration statement filed by the Company under the
Securities Act (other than rights which have been waived or satisfied); and the
Company is not required to include any securities in the securities registered
pursuant to the Registration Statement, nor is it required to file any
registration statement for the registration of any securities of any person or
register any such securities pursuant to any other registration statement filed
by the Company under the Securities Act for a period of at least 90 days after
the Effective Date.
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(j) The Company has not sold or issued any shares
of Common Stock during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or Regulations D
or S of, the Securities Act, other than shares issued pursuant to the 1994
Stock Option Plan of Human Genome Sciences, Inc. and the Human Genome Sciences,
Inc. 1993 Employee Incentive and Non-Qualified Stock Option Plan
(collectively, the "Stock Option Plans").
(k) The Company has not sustained, since the date
of the latest audited financial statements included in the Prospectus, 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, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company (except as a
result of the exercise of outstanding options or warrants after the date
hereof) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company, otherwise than as set forth or contemplated in the Prospectus.
(l) The financial statements (including the
related notes and supporting schedules) filed as part of the Registration
Statement or included in the Prospectus present fairly the financial condition,
results of operations and changes in financial condition of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated.
(m) Ernst & Young LLP, who have certified certain
financial statements of the Company, whose report appears in the Prospectus and
who have delivered the initial letter referred to in Section 7(g) hereof, are
independent public accountants as required by the Securities Act and the Rules
and Regulations; and Xxxxxxx X. Xxxxxx & Company, LLP, who have certified
certain financial statements of the Company, whose report appears in the
Prospectus and who have delivered the initial letter referred to in Section
7(g) hereof, are independent accountants as required by the Securities Act and
the Rules and Regulations and were so during the periods covered by the
financial statements on which they reported contained in the Prospectus.
(n) The Company has good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by it, in each case free and
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clear of all liens, encumbrances and defects except such as are described in
the Prospectus or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company. All real property and buildings held under lease
by the Company are held by it under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company.
(o) The Company carries, or is covered by,
insurance in such amounts and covering such risks as is required by its
contractual relations, or as is adequate for the conduct of its business and
the value of its properties and as is customary for companies engaged in
similar businesses in similar industries.
(p) Except as described in the Prospectus, the
Company owns or possesses adequate rights to use all material patents (or
foreign equivalents), patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses necessary for the conduct of its business and has no reason to believe
that the conduct of its business will conflict with, and except as described in
the Prospectus, has not received any notice of any claim of conflict with, any
such rights of others.
(q) Except as described in the Prospectus, there
are no legal or governmental proceedings pending to which the Company is a
party or of which any property or assets of the Company are the subject which,
if determined adversely to the Company, might have a material adverse effect on
the financial position, stockholders' equity, results of operations, business
or prospects of the Company; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(r) There are no contracts or other documents
which are required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement.
(s) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus or the documents incorporated by
reference therein but is not so described.
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(t) No labor disturbance by the employees of the
Company exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of the
Company.
(u) The Company is in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined
in ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification.
(v) The Company has filed all federal, state and
local income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company which has had (nor does the Company have
any knowledge of any tax deficiency which, if determined adversely to the
Company, might have) a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of the
Company.
(w) Since the date as of which information is
given in the Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted any
securities (except pursuant to the exercise of outstanding options and
warrants), (ii) incurred any liability or obligation, direct or contingent,
other than liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in the ordinary
course of business or (iv) declared or paid any dividend on its capital stock.
(x) The Company (i) makes and keeps accurate
books and records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and
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(D) the reported accountability for its assets is compared with existing assets
at reasonable intervals.
(y) The Company is not (i) in violation of its
Certificate of Incorporation or By-laws or other organizational documents, as
amended, (ii) in default in any material respect, and except as described in
the Prospectus, no event has occurred which, with notice or lapse of time or
both, would constitute such a material default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of
its properties or assets is subject or (iii) in violation in any material
respect of any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the
conduct of its business.
(z) Neither the Company, nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company, has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; made
any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(aa) There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances by the
Company (or, to the knowledge of the Company, any of its predecessors in
interest) at, upon or from any of the property now or previously owned or
leased by the Company in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect on the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company, taken as a whole; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or with respect to which
the Company has knowledge, except for any such spill,
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discharge, leak, emission, injection, escape, dumping or release which would
not have or would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a material adverse effect on the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company; and the terms "hazardous wastes", "toxic wastes",
"hazardous substances" and "medical wastes" shall have the meanings specified
in any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(ab) The Company is not an "investment company"
within the meaning of such term under the United States Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(ac) The Common Stock of the Company is quoted on
the Nasdaq National Market and the symbol HGSI, and the Shares are approved for
listing on the Nasdaq National Market, subject only to prior notice of
issuance.
(ad) The Company has not taken, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale
or resale of the Shares.
2. Purchase of the Shares by the Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell 3,000,000
Firm Shares to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm Shares
appearing opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Shares shall be rounded among the Underwriters to avoid fractional shares, as
the Representatives may determine.
In addition, the Company hereby grants to the Underwriters an
option to purchase up to 450,000 Option Shares. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 4 hereof. Option Shares shall be purchased
severally for the account of the Underwriters in proportion to the number of
Firm Shares set opposite the name of such Underwriters in Schedule 1 hereto.
The respective purchase obligations of each Underwriter with respect to the
Option Shares shall be adjusted by the Representatives so that no Underwriter
shall be obligated to purchase Option Shares other than in
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100 share quantities. The price of both the Firm Shares and any Option Shares
shall be $_____ per share.
The Company shall not be obligated to deliver any of the
Shares to be delivered on the First Delivery Date or the Second Delivery Date
(as hereinafter defined), as the case may be, except upon payment for all of
the Shares to be purchased on such Delivery Date as provided herein.
3. Offering of Shares by the Underwriters. Upon
authorization by the Representatives of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Shares. Delivery of
and payment for the Firm Shares shall be made at the offices of Xxxxxx Brothers
Inc., at 10:00 a.m., New York time, on the third full business day following
the date of this Agreement (or on the fourth full business day if the pricing
of the Firm Shares should take place after 4:30 p.m., New York time) or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to
as the "First Delivery Date." On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the Firm Shares to
the Representatives for the account of each Underwriter against payment to or
upon the order of the Company of the purchase price by certified or official
bank check or checks payable in New York Clearing House (next-day) funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Shares shall be registered in such names
and in such denominations as the Representatives shall request in writing not
less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Shares, the Company shall make the certificates representing the Firm
Shares available for inspection by the Representatives in New York, New York,
not later than 2:00 p.m., New York City time, on the business day prior to the
First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement, the option granted in Section 2 may be exercised by notice to
the Company by the Representatives. Such notice shall provide the aggregate
number of Option Shares as to which the option is being exercised, the names in
which the Option Shares are to be registered, the denominations in which the
Option Shares are to be issued and the date and time, as determined by the
Representatives, when the Option Shares are to be delivered; provided, however,
that this date and time shall not be
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earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been
exercised. The date and time the Option Shares are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Shares shall be made at
the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement between
the Representatives and the Company) at 10:00 a.m., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver
or cause to be delivered the certificates representing the Option Shares to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next-day) funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Shares shall be registered in such names
and in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of
the certificates for the Option Shares, the Company shall make the certificates
representing the Option Shares available for inspection by the Representatives
in New York, New York, not later than 2:00 p.m., New York City time, on the
business day prior to the Second Delivery Date.
5. Further Agreements of the Company. The Company
hereby covenants and agrees:
(a) To prepare the Prospectus in the form
required by the Securities Act and acceptable to the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not later
than Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Securities Act; to notify the
Representatives and their counsel of, and provide thereto, any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for supplemental information; to make no further amendment or
any supplement to the Registration Statement or to the Prospectus prior to the
last Delivery Date except as permitted herein; to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any supplement
to the Prospectus or any amended Prospectus has been filed
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and to furnish the Representatives with copies thereof; to file, if the Company
elects to rely upon Rule 462(b), a 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees in
accordance with Rule 111 of the Rules and Regulations by the earlier of (i)
10:00 p.m. New York time on the date of this Agreement or (ii) the time
confirmations are sent or given, as specified by Rule 462(b); to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise the Representatives, promptly after
it receives notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and
exhibits filed therewith (including all documents incorporated by reference
into the Prospectus pursuant to Form S-3 under the 1933 Act);
(c) To deliver promptly to the Representatives
such number of the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (including all documents
incorporated by reference into the Prospectus pursuant to Form S-3 under the
0000 Xxx); and (ii) each Preliminary Prospectus, the Prospectus and any amended
or supplemented Prospectus; and, if the delivery of a prospectus is required at
any time after the Effective Time in connection with the offering or sale of
the Shares or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply with the
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Securities Act, to notify the Representatives and, upon their request, to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Company or the Representatives,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any
amendment to the Registration Statement, 462(b) Registration Statement or
supplement to the Prospectus, any document incorporated by reference in the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the filing, which
consent may not be unreasonably withheld;
(f) As soon as practicable after the Effective
Date (but in any event not later than 45 days after the end of the fiscal
quarter in which the first anniversary of the Effective Date occurs), to make
generally available to the Company's shareholders and to deliver to the
Representatives in accordance with Rule 158 of the Rules and Regulations an
earnings statement of the Company (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations and covering
a period of at least twelve consecutive months beginning after the Effective
Date;
(g) For a period of five years following the
Effective Date, to furnish to the Representatives copies of all materials
furnished by the Company to its shareholders and all public reports and all
reports and financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be listed pursuant
to requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such
action as the Representatives may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
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may be necessary to complete the distribution of the Shares; provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(i) For a period of 90 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock (other than the Shares and shares
issued pursuant to the Stock Option Plans or other outstanding options or
warrants), or sell or grant options, rights or warrants with respect to any
shares of Common Stock (other than the grant of options pursuant to the Stock
Option Plans), without the prior written consent of Xxxxxx Brothers Inc.; and
to cause each officer, director (except for Xxxxxxx X. Xxxxxxxx) and certain
shareholders of the Company to furnish to the Representatives, prior to the
First Delivery Date, a letter or letters, in form and substance satisfactory to
counsel for the Underwriters, pursuant to which each such person shall agree
not to, directly or indirectly, offer for sale, sell or otherwise dispose of
(or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or other securities of the Company for a period
of 90 days from the date of the Prospectus, without the prior written consent
of Xxxxxx Brothers Inc.
(j) Prior to the Effective Date, to apply for the
inclusion of the Shares on the Nasdaq National Market system and to complete
that listing, subject only to official notice of issuance, prior to the First
Delivery Date;
(k) To apply the net proceeds from the sale of
the Shares being sold by the Company as set forth in the Prospectus;
(l) To take such steps as shall be necessary to
ensure that the Company shall not become an "investment company" within the
meaning of such term under the United States Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder.
6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Shares and
any taxes payable in that connection; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of
distributing the
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Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided
in this Agreement; (d) the costs of producing and distributing this Agreement,
the Agreement Among Underwriters and any other related documents in connection
with the offering, purchase, sale and delivery of the Shares; (e) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Shares; (f) any applicable
Nasdaq National Market system listing or other fees; (g) the fees and expenses
of qualifying the Shares under the securities laws of the several jurisdictions
as provided in Section 5(h) and of preparing, printing and distributing a Blue
Sky Memorandum (including related fees and expenses of counsel to the
Underwriters related thereto); and (h) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement;
provided that, except as provided in this Section 6 and in Section 11, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Shares which they may sell
and the expenses of advertising any offering of the Shares made by the
Underwriters.
7. Conditions of the Underwriters' Obligations. The
respective obligations of the several Underwriters hereunder are subject to the
accuracy, as of the date hereof and on each Delivery Date (as if made on such
date), of the representations and warranties of the Company, the agreements of
the Company and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed in a
timely manner with the Commission in accordance with Section 5(a); the
Registration Statement and all post-effective amendments thereto shall have
become effective and the Representatives shall have been informed thereof, not
later than the first full business day next following the date of this
Agreement; if the Company has elected to rely on Rule 462(b), the 462(b)
Registration Statement shall have become effective not later than the earlier
of (i) 10:00 p.m. New York time on the date of this Agreement or (ii) the time
confirmations are sent or given as specified in Rule 462(b); all filings
required by Rule 424 and Rule 430A of the Rules and Regulations shall have been
made, and no such filings shall have been made without the consent of the
Representatives; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued, and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been disclosed
to you and complied with to your satisfaction.
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(b) No Underwriter shall have been advised by the
Company or shall have discovered and disclosed to the Company on or prior to
such Delivery Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of fact which, in
your opinion or in the opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., counsel for the Underwriters, is material or omits to state a fact
which, in your opinion or the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein
not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the
Shares, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to you and your
counsel, and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) On each Delivery Date, there shall have been
furnished to you the written opinion of Bachner, Tally, Xxxxxxx & Xxxxxx LLP,
counsel to the Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the Representatives and
their counsel, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws the State of Delaware, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or
leasing of property or the conduct of its business requires
such qualification and has all power and authority necessary
to own or hold its properties and conduct its business in
which it is engaged;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
outstanding shares of capital stock of the Company have been,
and the Shares, upon issuance and delivery and payment
therefore in the manner provided for herein, will be, duly and
validly authorized and issued, fully paid and non-assessable
and conform to the description thereof contained in the
Prospectus; and to such counsel's knowledge, there are no
preemptive or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer
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of, any of the Shares pursuant to the Company's Certificate of
Incorporation or By-laws, as amended, or any agreement or
other instrument known to such counsel;
(iii) To the best of such counsel's
knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company is a party or of which any property or assets of the
Company is the subject which, if determined adversely to the
Company, might have a material adverse effect on the financial
position, stockholders' equity, results of operations,
business or prospects of the Company; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(iv) The Registration Statement and all
post effective amendments thereto, if any, have been declared
effective under the Securities Act, the 462(b) Registration
Statement, if any, became effective within the time limits set
forth in Section 5(a) hereto, the Prospectus has been filed
with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion
on the date specified therein, and no stop order suspending
the effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no proceeding
for that purpose is pending or threatened by the Commission;
(v) The Registration Statement and the
Prospectus and any further amendments or supplements thereto
made by the Company (other than the financial statements and
related schedules and other financial or statistical data
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Rules and
Regulations, and the conditions for the use of Form S-3 set
forth in the General Instructions thereto have been satisfied;
(vi) The documents incorporated by
reference in the Prospectus (except for the financial
statements and related schedules and other financial or
statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion) as of the dates
they were filed with the Commission complied as to form in all
material respects to the requirements of the Exchange Act and
the Rules and Regulations promulgated thereunder;
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(vii) All descriptions in the Prospectus
of statutes, regulations, legal or governmental proceedings,
contracts and other documents are accurate and fairly present
in all material respects the information required to be shown;
and such counsel do not know of any contracts or documents
required to be summarized or described therein (or required to
be filed under the Exchange Act if upon such filing they would
be incorporated, in whole or in part, by reference therein) or
to be filed as exhibits thereto which are not so summarized,
described or filed, nor do such counsel know of any pending or
threatened litigation or any governmental proceeding, statute
or regulation which would affect the subject matter or this
Agreement or is required to be described in the Prospectus
which is not so described.
(viii) This Agreement has been duly
authorized, executed and delivered by the Company and
constitutes the valid and legally binding agreement of the
Company;
(ix) The issue and sale of the Shares
being delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company is a party or by which
the Company is bound or to which any of the property or assets
of the Company is subject, which violation would be material
to the Company, nor will such actions result in any violation
of the provisions of the Certificate of Incorporation or
By-laws or other organizational documents of the Company, as
amended, or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties
or assets, the effect of which violation would be material to
the Company; and, except for the registration of the Shares
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable blue sky, state
or foreign securities laws and as may be required and have
been obtained under the rules and regulations of the Nasdaq
National Market in connection with the purchase and
distribution of the Shares by the Underwriters, no
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consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement by the Company and the consummation of the
transactions contemplated hereby; and
(x) To our knowledge after due inquiry,
other than Bear Xxxxxxx International Limited, Oxford
Bioscience Partners L.P., Oxford Bioscience Partners (Adjunct)
L.P., Oxford Bioscience Partners (Bermuda) Limited
Partnership, HealthCare Ventures III, L.P., HealthCare
Ventures IV, L.P., Aetna Life Insurance Company, members of
the Bass family and certain related persons who entered into a
Stock Purchase Agreement with HealthCare Ventures III, L.P.
and HealthCare Ventures IV, L.P. dated April 10, 1996 (the
"Bass Group"), SmithKline Xxxxxxx Corporation, MMC/GATX
Partnership No. 1, and Rho Management Trust III, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or to include securities for
registration in a registration statement filed by the Company
under the Securities Act (other than such rights which have
been waived or satisfied); and the Company is not required to
include any such securities in the securities registered
pursuant to the Registration Statement, nor is it required to
file any registration statement for the registration of any
securities of any person or register any such securities
pursuant to any other registration statement filed by the
Company under the Securities Act for a period of at least 90
days after the Effective Date.
(xi) The Company is not an "investment
company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of New York and the General Corporation Law
of the State of Delaware. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and dated
such Delivery Date, in form and substance satisfactory to the Representatives,
to the effect that (x) such counsel has acted as counsel to the Company on a
regular basis and as counsel to the Company in connection with the preparation
of the Registration Statement and (y) based on the foregoing, no
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facts have come to the attention of such counsel which lead them to believe
that (i) the Registration Statement, as of the Effective Date, or any amendment
thereto, at the time it become effective, (including any document incorporated
by reference under the Exchange Act), contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) or that the
Prospectus, or any amendment or supplement thereto, including any document
filed under the Exchange Act and deemed to be incorporated by reference into
the Prospectus or any supplement or amendment thereto, contains or contained
any untrue statement of a material fact or omits or omitted to state 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
(except, in the case of both the Registration Statement and any amendment
thereto and the Prospectus and any supplement thereto, for the financial
statements, notes thereto and other financial information and statistical data
contained therein).
Furthermore, such counsel need express no opinion with respect
to the financial statements and other financial or statistical data included in
the Registration Statement or Prospectus or, with respect to paragraph
7(d)(vii) above, to statements made in the Prospectus under the captions "Risk
Factors - Patents and Proprietary Rights" and "Business - Patents and
Proprietary Rights" or to statements made in the Prospectus under the captions
"Risk Factors - Uncertainty of Government Regulatory Requirements; Lengthy
Approval Process" and "Business - Government Regulation" to the extent they
constitute Regulatory Statements..
(e)(I) On each delivery date, the Company
shall have furnished to the Representatives an opinion of Carella, Byrne, Bain,
Gilfillan, Xxxxxx, Xxxxxxx & Xxxxxxx, United States patent counsel for the
Company, addressed to the Underwriters and dated such Delivery Date in form and
substance reasonably satisfactory to the Representatives and their counsel to
the effect that:
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(i) The statements in the Registration
Statement and Prospectus (A) under the caption "Risk Factors
-- Patents and Proprietary Rights" and (B) under the caption
"Business -- Patents and Proprietary Rights," in all material
respects are accurate statements or summaries of the matters
set forth therein.
(ii) No facts have come to the attention
of such counsel which would form a basis for the belief that
(a) the Registration Statement or any amendment thereto at the
time it became effective, (including any document incorporated
by reference under the Exchange Act), or (b) the Prospectus,
as amended or supplemented, including any document filed under
the Exchange Act and deemed to be incorporated by reference
therein or any supplemental or amendment thereto, contain any
untrue statement of a material fact with respect to the patent
position or proprietary rights of the Company, or omit to
state any material fact relating to the patent position or
proprietary rights of the Company, which is necessary to make
the statements contained therein not misleading.
(II) On each delivery date, the Company
shall have furnished to the Representatives an opinion of Xxxxxx Xxxxxx, Vice
President and General Counsel of the Company, addressed to the Underwriters and
dated such Delivery Date in form and substance reasonably satisfactory to the
Representatives and their counsel to the effect that:
(i) The statements in the Registration
Statement and Prospectus (A) under the caption "Risk Factors
-- Patents and Proprietary Rights" and (B) under the caption
"Business -- Patents and Proprietary Rights," in all material
respects are accurate statements or summaries of the matters
set forth therein.
(ii) No facts have come to the attention
of such counsel which would form a basis for the belief that
(a) the Registration Statement or any amendment thereto at the
time it became effective, (including any document incorporated
by reference under the Exchange Act), or (b) the Prospectus,
as amended or supplemented, including any document filed under
the Exchange Act and deemed to be incorporated by reference
therein or any supplemental or amendment thereto, contain any
untrue statement of a material fact with respect to the patent
position or proprietary rights of the Company, or omit to
state any material fact relating to the patent position or
proprietary rights of the Company, which is necessary to make
the statements contained therein not misleading.
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(iii) The Company owns in whole or in part
the United States patents and patent applications and valid
license rights to the patents and patent applications filed by
it, including all such patents and applications referenced in
the Prospectus.
(iv) No facts have come to the attention
of such counsel that would form a basis for the belief that
any of the United States patents owned by the Company is
unenforceable or invalid. Such counsel is not aware of any
patents of others which are or would be infringed by the
manufacture, use or sale of the therapeutic proteins as to
which the Company has rights as set forth in the Prospectus in
such manner as to materially and adversely affect the Company;
except as set forth in the Prospectus, such counsel has no
knowledge of any pending or threatened action, suit,
proceeding or claim by others that the Company is infringing
any patent which could result in any material adverse effect
on the Company.
(v) There are no legal or governmental
proceedings pending relating to the United States patent
rights, other than PTO review of pending applications for
patents, including appeal proceedings, and, except for
potential interference proceedings as described in the
Registration Statement and the Prospectus, to such counsel's
knowledge, no such proceedings are threatened or contemplated
by United States governmental authorities or others.
(III) On each delivery Date, the Company
shall have furnished to the Representatives an opinion of Fenwick & West LLP,
regulatory counsel for the Company, addressed to the Underwriters and dated
such Delivery Date in form and substance reasonably satisfactory to the
Representatives and their counsel to the effect that:
(i) The Statements set forth in the
Registration Statement and Prospectus under the captions "Risk
Factors--Uncertainty of Government Regulatory Requirements;
Lengthy Approval Process" and "Business--Government
Regulation" (collectively, the "Regulatory Sections"), insofar
as such statements constitute descriptions or summaries of the
Federal Food, Drug and Cosmetic Act, the Food and Drug
Administration's regulations concerning its regulation of new
drugs, biologics or devices in general or the Public Health
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Service Act, are accurate and complete in all material
respects and fairly present the information therein described
in light of the circumstances under which they were made; and
such counsel has no reason to believe that, at the time the
Registration Statement became effective, the statements in the
Regulatory Sections which relate to the regulation of drugs,
biologics and devices and the handling and storage of
radioactive substances (the "Regulatory Statements") contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary to make the
Regulatory Statements not misleading, or that at such Delivery
Date, Regulatory Statements contained any untrue statement of
a material fact or omitted to state a material fact necessary
to make the Regulatory Statements, in light of the
circumstances under which they were made, not misleading.
(ii) To such counsel's knowledge, the
Company's conduct of business complies in all material
respects with the statutes and laws relating to the
development of therapeutic products and diagnosis,
environmental protection and hazardous substance control in
each country and state in which the Company conducts its
business.
(f) The Representatives shall have received from
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, with respect
to the issuance and sale of the Shares, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(g) At the time of execution of this Agreement,
the Representatives shall have received from each of Ernst & Young LLP and
Xxxxxxx X. Xxxxxx & Company, LLP a letter, in form and substance satisfactory
to the Representatives, addressed to the Underwriters and dated the date hereof
(i) confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date hereof), the conclusions and findings
of such firm with
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respect to the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with registered
public offerings.
(h) With respect to the letters of Ernst & Young
LLP and Xxxxxxx X. Xxxxxx & Company, LLP referred to in the preceding paragraph
and delivered to the Representatives concurrently with the execution of this
Agreement (the "initial letter"), on each Delivery Date the Company shall have
furnished to the Representatives a letter (the "bring-down letter") of each of
such accounting firms, addressed to the Underwriters and dated such Delivery
Date (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered
by the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(i) On each Delivery Date, the Company shall have
furnished to the Representatives a certificate, dated such Delivery Date, of
its Chairman of the Board and President and its Chief Financial Officer stating
that:
(i) The representations and warranties
of the Company contained in this Agreement are true and
correct as of such Delivery Date, and the Company has complied
with all agreements and satisfied all conditions on its part
to be complied with or satisfied prior to such Delivery Date;
and the conditions set forth in Sections 7(a) and 7(l) have
been fulfilled;
(ii) The Company has not sustained, since
the date of the latest audited financial statements included
in the Prospectus, any change in the capital stock or
long-term debt of the Company or any change, in or affecting
the general affairs, management, business, financial
condition, stockholders' equity or results of operations of
the Company, except as set forth or contemplated in the
Prospectus; and
(iii) They have carefully examined the
Registration Statement and the Prospectus and, in their
opinion (A) as of the Effective Date, the
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Registration Statement and Prospectus did not include any
untrue statement of a material fact and did not omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the
Effective Date no event has occurred which should have been
set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(j) You shall have been furnished such additional
documents and certificates as you or counsel for the Underwriters may
reasonably request.
(k) The letter agreements among you and officers,
directors and certain stockholders of the Company relating to restrictions on
sales of the Company's securities, delivered to you on or prior to the date
hereof, shall be in full force and effect on such Delivery Date.
(l) (i) The Company shall not have sustained
since the date of the latest audited financial statements included in the
Prospectus any 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, otherwise than as set
forth or contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company or
any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered on such Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(m) Subsequent to the execution and delivery of
this Agreement there shall not have occurred any of the following: (i) trading
in securities generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international
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conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the public offering or delivery of the Shares being delivered
on such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(n) The Nasdaq National Market system shall have
approved the Shares for inclusion, subject only to official notice of issuance.
All such opinions, letters, evidence, certificates and
documents shall be in compliance with the provisions of this Agreement only if
they are satisfactory in form and substance to you and counsel for the
Underwriters. The Company shall furnish to you conformed copies of such
opinions, letters, evidence, certificates and documents in such number as you
shall reasonably request. If any of the conditions specified in this Section 7
shall not have been fulfilled when and as required by this Agreement, the
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or prior to, each Delivery date, by you. Any such cancellation shall be
without liability of the Underwriters to the Company. Notice of such
cancellation shall be given to the Company in writing, or by telecopy or
telephone confirmed in writing.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless
each Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Shares), to which that
Underwriter, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or all
of the Shares under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a A Blue Sky
Application"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not
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misleading or (iii) any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts
or failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application, in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, each of its directors, each of
its offices who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Securities Act or otherwise,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or (B)
in any Blue Sky Application or (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the
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Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified
party under this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 8 except to
the extent it has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Representatives shall have
the right to employ counsel to represent jointly the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the Company under
this Section 8 if, in the reasonable judgment of the Representatives, it is
advisable for the Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an
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unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in respect of any
loss, claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in
respect thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Shares purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Shares under this Agreement, 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 whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8 were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8 shall be deemed
to include, for purposes
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31
of this Section 8(d), 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 Section 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the
Company acknowledges that the statements with respect to the public offering of
the Shares by the Underwriters set forth on the cover page of, the legend
concerning over-allotments on the inside front cover page of and the concession
and reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters. If, on either Delivery Date,
any Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Shares which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number
of the Firm Shares set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of the Firm Shares
set opposite the names of all the remaining non-defaulting Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Shares on such
Delivery Date if the total number of Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of Shares to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of Shares which it agreed to purchase on such Delivery Date pursuant
to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them,
all the Shares to be purchased on such Delivery Date. If the remaining
non-defaulting Underwriters or
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other underwriters satisfactory to the Representatives do not elect to purchase
the shares which the defaulting Underwriter or Underwriters agreed but failed
to purchase on such Delivery Date, this Agreement (or, with respect to the
Second Delivery Date, the obligation of the Underwriters to purchase, and of
the Company to sell, the Option Shares) shall terminate without liability on
the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent
set forth in Sections 6 and 11. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 9, purchases Firm Shares which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Shares of a defaulting or withdrawing Underwriter, either the Representatives
or the Company may postpone the Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives by notice given to and
received by the Company prior to delivery of and payment for the Firm Shares
if, prior to that time, any of the events described in Sections 7(l) or 7(m),
shall have occurred or if the Underwriters shall decline to purchase the Shares
for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Shares for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled
is not fulfilled or if the Underwriters shall not purchase the Shares for any
reason permitted pursuant to this Agreement, the Company will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Shares, and upon demand the Company
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
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12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Brothers Inc., Three
World Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice pursuant
to Section 8(c), to the Director of Litigation, Office of the General Counsel,
Xxxxxx Brothers Inc., Three World Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000;
(b) if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Xxxxxxx X. Xxxxxxxxx (Fax:
000-000-0000);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by the Representatives.
13. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on
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34
behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
15. Definition of the Terms "Business Day" and
"Subsidiary". For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange, Inc. is open for trading and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
16. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between
the Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
Human Genome Sciences, Inc..
By
---------------------------------------
Xxxxxxx X. Xxxxxxxxx, Ph.D.
Accepted:
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXX XXXXXX INC.
UBS SECURITIES LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By
---------------------------------
Authorized Representative
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SCHEDULE 1
Number of
Underwriters Shares
------------ -------
XXXXXX BROTHERS INC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BEAR, XXXXXXX & CO. INC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED . . . . . . . . . . . . . . . . . . . . . . . . . . .
XXXXX XXXXXX INC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
UBS SECURITIES LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-----------
Total 3,000,000
===========
36
