2,600,000 Shares Progenics Pharmaceuticals, Inc. Common Stock UNDERWRITING AGREEMENT
EXHIBIT 1.1
2,600,000 Shares
Progenics Pharmaceuticals, Inc.
Common Stock
September 19, 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Progenics Pharmaceuticals, Inc., a corporation organized under the laws of Delaware (the
“Company”), proposes, subject to the terms and conditions contained herein, to sell to you and the
other underwriters named on Schedule I to this Agreement (the “Underwriters”), for whom you are
acting as Representatives (the “Representatives”), an aggregate of 2,600,000 shares (the “Firm
Shares”) of the Company’s common stock, $0.0013 par value per share (the “Common Stock”). The
respective amounts of the Firm Shares to be purchased by each of the several Underwriters are set
forth opposite their names on Schedule I hereto. In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional 390,000 shares (the “Option Shares”) of
Common Stock from the Company for the purpose of covering over-allotments in connection with the
sale of the Firm Shares. The Firm Shares and the Option Shares are collectively called the
“Shares.”
The Company has prepared and filed in conformity with the requirements of the Securities Act
of 1933, as amended (the “Securities Act”), and the published rules and regulations thereunder (the
“Rules”) adopted by the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-3 (No. 333-130912), including a related prospectus dated February 2, 2006 (the
“Base Prospectus”) relating to Common Stock of the Company that may be sold from time to time by
the Company in accordance with Rule 415 of the Securities Act, and such amendments thereof as may
have been required to the date of this Agreement. Copies of such Registration Statement (including
all amendments thereof and all
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documents deemed incorporated by reference therein) and of the related Base Prospectus have
heretofore been delivered by the Company or are otherwise available to you.
The term “Registration Statement” as used in this Agreement means the registration statement,
including all exhibits, financial schedules and all documents and information deemed by the
Securities Act or the Rules to be part of the Registration Statement by incorporation by reference
or otherwise, as amended from time to time, including the information (if any) contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and deemed
to be part thereof at the time of effectiveness pursuant to Rule 430A of the Rules.
If the Company has filed an abbreviated registration statement to register additional Shares
pursuant to Rule 462(b) under the Rules (the “462(b) Registration Statement”), then any reference
herein to the Registration Statement shall also be deemed to include such 462(b) Registration
Statement. The term “Preliminary Prospectus” means the Base Prospectus, together with any
preliminary prospectus supplement used or filed with the Commission pursuant to Rule 424 of the
Rules, in each case in the form provided to the Underwriters by the Company for use in connection
with the offering of the Shares. The term “Prospectus” means the Base Prospectus, any Preliminary
Prospectus and any amendments or further supplements to such prospectus, and including, without
limitation, the final prospectus supplement, filed pursuant to and within the limits described in
Rule 424(b) with the Commission in connection with the proposed sale of the Shares contemplated by
this Agreement through the date of such Prospectus Supplement. The term “Effective Date” shall
mean each date that the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. Unless otherwise stated herein, any reference herein to the
Registration Statement, any Preliminary Prospectus, the Statutory Prospectus (as hereinafter
defined) and the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, which were filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on or before the date hereof
or are so filed hereafter. Any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, any Preliminary Prospectus, the Statutory Prospectus or
the Prospectus shall be deemed to refer to and include any such document filed under the Exchange
Act after the date of the Registration Statement, any such Preliminary Prospectus, the Statutory
Prospectus or Prospectus, as the case may be, and deemed to be incorporated therein by reference.
The Company understands that the Underwriters propose to make a public offering of the Shares,
as set forth in and pursuant to the Statutory Prospectus and the Prospectus, as soon after the
Effective Date and the date of this Agreement as the Representatives deem advisable. The Company
hereby confirms that the Underwriters and dealers have been authorized to distribute or cause to be
distributed each Preliminary Prospectus, and each Issuer Free Writing Prospectus (as hereinafter
defined) and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the Underwriters). The
Underwriters have not offered or sold and will not offer or sell, without the Company’s written
consent, any Shares by means of any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) that is required to be filed
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by the Underwriters with the Commission pursuant to Rule 433 under the Securities Act, other
than an Issuer Free Writing Prospectus.
Sale, Purchase, Delivery and Payment for the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price
of $22.04 per share (the “Initial Price”), the number of Firm Shares set forth opposite the name of
such Underwriter under the column “Number of Firm Shares to be Purchased from the Company” on
Schedule I to this Agreement, subject to adjustment in accordance with Section 7 hereof.
(b) The Company hereby grants to the several Underwriters an option to purchase, severally and
not jointly, all or any part of the Option Shares at the Initial Price. The number of Option
Shares to be purchased by each Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such option may be exercised
only to cover over-allotments in the sales of the Firm Shares by the Underwriters and may be
exercised in whole or in part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and from time to time
thereafter within 30 days after the date of this Agreement, in each case upon written, facsimile or
telegraphic notice, or verbal or telephonic notice confirmed by written, facsimile or telegraphic
notice, by the Representatives to the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date or at least two business days before the Option
Shares Closing Date (as defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm Shares Closing Date) of such
purchase.
(c) Payment of the purchase price for, and delivery of certificates for, the Firm Shares shall
be made at 10:00 a.m., New York City time, on the third business day following the date of this
Agreement or at such time on such other date, not later than ten (10) business days after the date
of this Agreement, as shall be agreed upon by the Company and the Representatives (such time and
date of delivery and payment are called the “Firm Shares Closing Date”). In addition, in the event
that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase
price, and delivery of the certificates, for such Option Shares shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the Representatives and
the Company, on each date of delivery as specified in the notice from the Representatives to the
Company (such time and date of delivery and payment are called the “Option Shares Closing Date”).
The Firm Shares Closing Date and any Option Shares Closing Date are called, individually, a
“Closing Date” and, together, the “Closing Dates.”
(d) Payment shall be made to the Company by wire transfer of immediately available funds
against delivery of the respective certificates to the Representatives for the respective accounts
of the Underwriters of certificates for the Shares to be purchased by them.
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(e) Certificates evidencing the Shares shall be delivered by or on behalf of the Company to
the Representatives through the facilities of the Depository Trust Company (“DTC”) for the account
of such Underwriter.
Representations and Warranties of the Company. The Company represents and warrants to
each Underwriter as of the date hereof, as of the Firm Shares Closing Date and as of each Option
Shares Closing Date (if any), as follows:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act and has
filed with the Commission the Registration Statement on such Form, including a Base Prospectus, for
registration under the Securities Act of the offering and sale of the Shares. When the
Registration Statement or any amendment thereof or supplement thereto was or is declared effective
and as of the date of the most recent Amendment to the Registration Statement, it (i) complied or
will comply, in all material respects, with the applicable provisions of the Securities Act and the
Rules and (ii) did not or will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the statements
therein not misleading. When any Preliminary Prospectus or Prospectus was first filed with the
Commission (whether filed as part of the Registration Statement or any amendment thereto or
pursuant to Rule 424 of the Rules) and when any amendment thereof or supplement thereto was first
filed with the Commission, such Preliminary Prospectus or Prospectus as amended or supplemented
complied in all material respects with the applicable provisions of the Securities Act and the
Rules and did not or will not, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein
not misleading. If applicable, each Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T. Notwithstanding the foregoing, none of the representations and
warranties in this paragraph 2(a) shall apply to statements in, or omissions from, the Registration
Statement, any Preliminary Prospectus or the Prospectus made in reliance upon, and in conformity
with, information herein or otherwise furnished in writing by the Representatives on behalf of the
several Underwriters specifically for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus.
(b) As of the Applicable Time (as hereinafter defined), the General Disclosure Package (as
hereinafter defined) did not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Notwithstanding the foregoing, the representation in
the preceding sentence shall not apply to statements in, or omissions from, the General Disclosure
Package made in reliance upon, and in conformity with, information herein or otherwise furnished in
writing by the Representatives on behalf of the several Underwriters specifically for use in the
General Disclosure Package.
Each Issuer Free Writing Prospectus, including any electronic road show (each, a “Road Show”)
(i) is identified in Schedule III hereto and (ii) complied when issued, and complies, in all
material respects with the requirements of the Securities Act and the Rules.
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As used in this Section and elsewhere in this Agreement:
“Applicable Time” means 9:00 am (Eastern Daylight Time) on September 20, 2007.
“General Disclosure Package” means the Statutory Prospectus, taken together with all Issuer
Free Writing Prospectuses and the information set forth in the Term Sheet attached hereto as
Schedule IV.
“Statutory Prospectus” as of any time means the Preliminary Prospectus relating to the
Shares, as amended and supplemented immediately prior to the Applicable Time.
“Issuer Free Writing Prospectus” means each “free writing prospectus” (as defined in Rule
405 of the Rules) prepared by or on behalf of the Company or used or referred to by the
Company in connection with the offering of the Shares, including, without limitation, each
Road Show.
(c) The Registration Statement is effective under the Securities Act and no stop order
preventing or suspending the effectiveness of the Registration Statement or suspending or
preventing the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus”,
as defined in Rule 405 under the Rules, has been issued by the Commission and no proceedings for
that purpose have been instituted or are threatened under the Securities Act. Any required filing
of any Preliminary Prospectus and/or the Prospectus and any supplement thereto pursuant to Rule
424(b) of the Rules has been or will be made in the manner and within the time period required by
such Rule 424(b). Any material required to be filed by the Company pursuant to Rule 433(d) of the
Rules has been or will be made in the manner and within the time period required by such Rules.
(d) The documents incorporated by reference in the Registration Statement, any Preliminary
Prospectus and the Prospectus, at the time they became effective, were filed with the Commission or
were last amended prior to the date hereof, as the case may be, complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents, as of such date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, and any
further documents so filed and incorporated by reference in the Registration Statement, any
Preliminary Prospectus and 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 Exchange Act and the rules and regulations of the Commission thereunder and will not include an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they are made, not misleading.
(e) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares or until any earlier date that
the Company notified or notifies the Representatives as described in the next sentence, did not,
does not and will not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, including any document incorporated by
reference therein.
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If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the information contained
in the Registration Statement, the Statutory Prospectus or the Prospectus or
included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances prevailing
at the subsequent time, not misleading, the Company has promptly notified or will
promptly notify the Representatives and has promptly amended or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(f) The Registration Statement initially became effective within three years of the date
hereof. If, immediately prior to the third anniversary of the initial effective date of the
Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will,
prior to that third anniversary file, if it has not already done so, a new shelf registration
statement relating to the Shares, in a form reasonably satisfactory to the Representatives, will
use its best efforts to cause such registration statement to be declared effective within 180 days
after that third anniversary, and will take all other action necessary or appropriate to permit the
public offering and sale of the Shares to continue as contemplated in the expired Registration
Statement. References herein to the Registration Statement relating to the Shares shall include
such new shelf registration statement.
(g) The Company and each of its subsidiaries, including each entity (corporation, partnership,
joint venture, association or other business organization) controlled directly or indirectly by the
Company (each, a “subsidiary”), is duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation or organization and each such entity has
all requisite power and authority to carry on its business as is currently being conducted as
described in the Statutory Prospectus and the Prospectus, and to own, lease and operate its
properties. The Company and each of its subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the nature of the business
conducted by it or location of the assets or properties owned, leased or licensed by it requires
such qualification, except for such jurisdictions where the failure to so qualify individually or
in the aggregate would not have a material adverse effect on the condition (financial or
otherwise), prospects, results of operations, business or properties of the Company and the
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business.
(h) The Company owns one hundred percent (100%) of the outstanding membership interests of
PSMA Development Company LLC, a Delaware limited liability company (the “LLC”), which interests are
owned by the Company free and clear of any security interests, claims, liens or encumbrances, other
than encumbrances imposed pursuant to the terms of the Limited Liability Company Agreement of PSMA
Development Company LLC dated June 15, 1999.
(i) The Company’s authorized equity capitalization is as set forth in the Prospectus; the
capital stock of the Company conforms in all material respects to the description thereof contained
in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and
issued and are fully paid and nonassessable; the Shares have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters pursuant
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to this Agreement, will be fully paid and nonassessable; upon official notice of issuance, the
Shares will be duly listed on the NASDAQ Global Market; the certificates for the Shares are in the
form duly authorized by the Board of Directors of the Company and comply in all material respects
with the requirements of the Delaware General Corporation Law (the “DGCL”); the holders of
outstanding shares of capital stock of the Company are not entitled to preemptive or other rights
to subscribe for the Shares; and, except as set forth in the Prospectus and other than issuances
pursuant to equity compensation plans described as outstanding in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding.
(j) There is no franchise, contract or other documents of a character required by the
Securities Act to be described in the Registration Statement or Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required; and the statements in the Prospectus
under the headings “Risk Factors — “We have granted to Wyeth the exclusive rights to develop and
commercialize methylnaltrexone, our lead product candidate, and our resulting dependence upon Wyeth
exposes us to significant risks,” — “We are likely to need additional financing, but our access to
capital funding is uncertain,” — “We are subject to extensive regulation, which can be costly and
time consuming and can subject us to unanticipated fines and delays,” — “Our products do not yet
have, and may never obtain, the regulatory approvals needed for marketing,” — “One or more
competitors developing an opioid antagonist may reach the market ahead of us and adversely affect
the market potential for methylnaltrexone,” — “If we do not remedy our failure to achieve
milestones or satisfy conditions regarding some of our product candidates, we may not maintain our
rights under our licenses relating to these product candidates,” — “We have limited manufacturing
capabilities, which could adversely impact our ability to commercialize products,” — “We are
dependent on our patents and other intellectual property rights. The validity, enforceability and
commercial value of these rights are highly uncertain,” — “We are dependent upon third parties for
a variety of functions. These arrangements may not provide us with the benefits we expect,” —
“If we are unable to obtain sufficient quantities of the raw and bulk materials needed to make
our products, our product development and commercialization could be slowed or stopped,” — “A
substantial portion of our funding comes from federal government grants and research contracts. We
cannot rely on these grants or contracts as a continuing source of funds,” and — “Anti-takeover
provisions may make the removal of our Board of Directors or management more difficult and
discourage hostile bids for control of our company that may be beneficial to our stockholders,” and
in the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 (the “2006 10-K”)
under the headings “Part I — Item 1. Business — “Licenses,” — “Patents and Proprietary
Technology,” — “Government Regulation” and — “Manufacturing,” in each case insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein, when
considered together with the other information in the Prospectus, do not include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made, not misleading.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
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(l) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus, will not be an “investment
company” as defined in the Investment Company Act of 1940, as amended.
(m) No consent, approval, authorization, filing with or order of any court or governmental
agency or body is required on the part of the Company or the subsidiaries in connection with the
transactions contemplated herein, except such as have been obtained under the Securities Act and
the applicable rules of the National Association of Securities Dealers, Inc., and such as may be
required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters in the manner contemplated herein and in the
Prospectus.
(n) Neither the issue and sale of the Shares nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the subsidiaries pursuant to, (i) the charter, by-laws or other
organizational document of the Company or the subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or the subsidiaries is a party
or bound or to which any of the Company’s or the subsidiaries’ property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to the Company or the
subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or the subsidiaries or any of the Company’s or
the subsidiaries’ properties, where, in the case of clause (ii) only, the consequence of any such
violation or default, individually or in the aggregate, would have a material adverse effect on the
condition (financial or otherwise), prospects, results of operations, business or properties of the
Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(o) No holders of securities of the Company have rights to the registration of such securities
under the Registration Statement, other than those rights which have been waived.
(p) The historical financial statements of the Company included in the Prospectus and the
Registration Statement present fairly in all material respects the financial condition, results of
operations and cash flows of the Company on a consolidated basis as of the dates and for the
periods indicated, comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the caption “Part II — Item
6. — Selected Financial Data” in the 2006 10-K, which is incorporated by reference into the
Prospectus and Registration Statement, fairly present, on the basis stated in the Prospectus and
the Registration Statement, the information included therein.
(q) No action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or the subsidiaries or the Company’s or the
subsidiaries’ property is pending or, to the knowledge of the Company, threatened that (i) would
have a material adverse effect on the performance of this Agreement or the consummation
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of any of the transactions contemplated hereby or (ii) would have a material adverse effect on
the condition (financial or otherwise), prospects, results of operations, business or properties of
the Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto).
(r) The real and personal properties owned or leased by the Company and the subsidiaries are
adequate in all material respects for the conduct of the Company’s and the subsidiaries’ businesses
as described in the Registration Statement and the Prospectus.
(s) Neither the Company nor the subsidiaries are in violation or default of (i) any provision
of its charter, bylaws or other organizational document, (ii) other than as disclosed in or
contemplated by the Prospectus, the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which the Company’s or the subsidiaries’ property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or the subsidiaries or the Company’s or the subsidiaries’ property,
as applicable, where, in the case of clauses (ii) and (iii) only, the consequence of any such
violation or default, individually or in the aggregate, would have a material adverse effect on the
condition (financial or otherwise), prospects, results of operations, business or properties of the
Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(t) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company
and delivered their report with respect to the audited financial statements included in the
Prospectus, is an independent registered public accounting firm with respect to the Company within
the meaning of the Sarbanes Oxley Act of 2002 (the “Sarbanes Oxley Act”) and the rules and
regulations of the Public Company Accounting Oversight Board.
(u) There are no transfer taxes or other similar fees or charges under Federal law or the laws
of any state, or any political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by the Company to the Underwriters
of the Shares.
(v) The Company has filed all foreign, federal, state and local tax returns that are required
to be filed or has requested extensions thereof (except in any case in which the failure so to file
could not reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), prospects, results of operations, business or properties of the Company and the
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business), except as set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto), and has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in good faith or as could
not reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), prospects, results of operations, business or properties of the Company and the
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
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business, except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(w) No labor problem or dispute with the employees of the Company or the subsidiaries exists
or, to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or the subsidiaries’
principal suppliers, contractors or customers, that could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), prospects, results of operations,
business or properties of the Company and the subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(x) The Company and the subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; all material policies of insurance and fidelity or surety
bonds insuring the Company or the subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and the subsidiaries are in
compliance with the terms of such policies and instruments in all material respects; and there are
no material claims by the Company or the subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a reservation of rights clause;
and neither the Company nor the subsidiaries have any reason to believe that they will not be able
to renew their existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue their businesses at a cost that
could not reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), prospects, results of operations, business or properties of the Company and the
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(y) The Company and the subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, except for such licenses, certificates, permits and other
authorizations the absence of which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and the subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement thereto). Neither the
Company nor the subsidiaries have received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit, the results of which proceeding
could reasonably be expected, singly or in the aggregate, to have a material adverse effect on the
condition (financial or otherwise), prospects, results of operations, business or properties of the
Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto).
(z) The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s
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general or specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) The Company has not taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(bb) The Company and the subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or potential liability under any
environmental law, except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the condition (financial or
otherwise), prospects, results of operations, business or properties of the Company and the
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto). Neither the Company nor the subsidiaries have been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(cc) The minimum funding standard under Section 302 of the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (“ERISA”),
has been satisfied by each “pension plan” (as defined in Section 3(2) of ERISA) which has been
established or maintained by the Company and the subsidiaries, and all “pension plans” maintained
by the Company and the subsidiaries that are intended to be qualified under Section 401(a) of the
Code have received determination letters of the Internal Revenue Service to the effect that such
plans are so qualified, and to the knowledge of the Company, no facts exist that are reasonably
likely to adversely effect the “qualified” status of any such plans; neither the Company nor the
subsidiaries maintain or are required to contribute to a “welfare plan” (as defined in Section 3(1)
of ERISA) which provides retiree or other post-employment welfare benefits or insurance coverage
(other than “continuation coverage” (as defined in Section 602 of ERISA)); each pension plan and
welfare plan established or maintained by the Company and the subsidiaries is in compliance in all
material respects with the currently applicable provisions of ERISA; and neither the Company nor
the subsidiaries have incurred or could reasonably be expected to incur any withdrawal liability
under Section 4201 of ERISA, any liability under Section 4062, 4063, or 4064 of ERISA, or any other
liability under Title IV of ERISA.
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(dd) There is and has been no failure on the part of the Company or the subsidiaries or, to
the Company’s knowledge, any of the Company’s or the subsidiaries’ directors or officers, in their
capacities as such, to comply in all material respects with any provision, to the extent effective,
of the Sarbanes Oxley Act and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans, Section 404 related to internal control over financial
reporting, and Sections 302 and 906 related to certifications.
(ee) Neither the Company nor the subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or the subsidiaries is aware of or
has taken any action, directly or indirectly, that would result in a violation by such Persons of
the FCPA, including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, the subsidiaries and, to the knowledge of the Company,
their affiliates have conducted their businesses in compliance with the FCPA.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(ff) Except as described in or contemplated by the Prospectus, the Company and the
subsidiaries own, possess, license or have other rights to use, all patents, patent applications,
trade and service marks, trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of the Company’s and the subsidiaries’
businesses as now conducted or as proposed in the Prospectus to be conducted (collectively,
“Company Intellectual Property”). Except as set forth in the Prospectus or such as could not
reasonably be expected, individually or in the aggregate, to have a material adverse effect on the
condition (financial or otherwise), prospects, results of operations, business or properties of the
Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, (i) to the Company’s knowledge, there are no rights of third parties
to any Company Intellectual Property other than the retained rights of licensors with respect to
licensed Company Intellectual Property; (ii) to the Company’s knowledge, there is no infringement
by third parties of any Company Intellectual Property; (iii) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the
Company’s rights in or to any Company Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the
validity or scope of any Company Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any Intellectual Property of others, and the Company is unaware of
any other fact which would form a reasonable basis for any such claim; (vi) to the Company’s
knowledge, there is no U.S. patent or published U.S. patent application which contains claims that
dominate, or, with respect to such published patent applications, that may dominate if issued,
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any Company Intellectual Property or that interferes with the issued or pending claims of any
Company Intellectual Property; and (vii) there is no prior art of which the Company is aware that
could reasonably be expected to render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent
and Trademark Office.
(gg) The Company and each of the subsidiaries has filed with the U.S. Food and Drug
Administration (the “FDA”) and all other applicable foreign, state and local regulatory bodies for,
and received approval of, all registrations, applications, licenses, requests for exemptions,
permits and other regulatory authorizations material to the conduct of their businesses as now
conducted; the Company and each of the subsidiaries is in compliance in all material respects with
all such registrations, applications, licenses, requests for exemptions, permits and other
regulatory authorizations, and all applicable FDA, foreign, state and local rules and regulations;
and the Company has no reason to believe that any party granting any such registration,
application, license, request for exemption, permit or other authorization is considering limiting,
suspending or revoking the same in any material respect.
(hh) Each of the human clinical trials, animal studies and other preclinical tests conducted
by the Company or the subsidiaries, or in which the Company or the subsidiaries has participated,
that are described in the Registration Statement or the Prospectus or the results of which are
referred to in the Registration Statement or the Prospectus, and such studies and tests conducted
on behalf of the Company or the subsidiaries, were and, if still pending, are being conducted in
all material respects (i) in accordance with experimental protocols, procedures and controls
generally used by qualified experts in the preclinical or clinical study of products comparable to
those being developed by the Company and (ii) in compliance with all applicable current Good
Laboratory and Good Clinical Practices; the descriptions of the results of such studies, tests and
trials contained in the Registration Statement and the Prospectus are accurate and complete in all
material respects, and the Company has no knowledge of any other trials, studies or tests, the
results of which reasonably call into question the results described or referred to in the
Registration Statement and the Prospectus; other than as described in or contemplated by the
Prospectus, neither the Company nor the subsidiaries have received any notices or correspondence
from the FDA or any other governmental agency requiring the termination, suspension or modification
(other than such suspensions as have been lifted or such modifications as have been complied with)
of any animal studies, preclinical tests or clinical trials conducted by or on behalf of the
Company or the subsidiaries or in which the Company or the subsidiaries have participated that are
described in the Registration Statement or the Prospectus or the results of which are referred to
in the Registration Statement or the Prospectus.
(ii) No transaction has occurred between or among the Company and any of its officers or
directors or five percent stockholders or any affiliate or affiliates of any such officer or
director or five percent stockholders that is required to be described in and is not described in
the Registration Statement, the Statutory Prospectus and the Prospectus.
(jj) The Company has established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15 under the Exchange Act), which: (i) are designed to ensure that
material information relating to the Company is made known to the Company’s principal executive
officer and its principal financial officer by others within the Company,
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particularly during the periods in which the periodic reports required under the Exchange Act
are required to be prepared; (ii) provide for the periodic evaluation of the effectiveness of such
disclosure controls and procedures at the end of the periods in which the periodic reports are
required to be prepared; and (iii) are effective in all material respects to perform the functions
for which they were established.
(kk) The Company’s independent auditors and the Audit Committee of the Board of Directors of
the Company have been advised of: (i) any significant deficiency in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process, summarize
and report financial data; or (ii) any fraud, whether or not material, that involves management or
other employees who have a role in the Company’s internal controls.
Any certificate signed by any officer of the Company and delivered to the Underwriters or
counsel for the Underwriters in connection with the offering of the Shares shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters
under this Agreement are several and not joint. The respective obligations of the Underwriters to
purchase the Shares are subject to each of the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section
5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d)
of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or
any “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in
effect and no order suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for such purpose shall be pending before or threatened by the Commission, and
any requests for additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Commission and the Representatives. If the Company has elected to rely upon
Rule 430A, Rule 430A information previously omitted from the effective Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period and the Company shall have provided evidence reasonably
satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A.
(c) The Company shall have requested and caused Xxxxx Xxxxxxxxxx LLP, counsel for the Company,
to have furnished to the Underwriters their opinion, dated the Firm Shares Closing Date and any
Option Shares Closing Date, and addressed to the Underwriters, to the effect that:
| (i) | the Company has been duly incorporated under the DGCL, and the LLC has been duly formed under the Delaware Limited Liability Company Act, and each of them is validly existing and in good standing under the laws of the State of Delaware, with full corporate (in the case of the Company) or limited liability company (in the case of the LLC) power and authority to own or lease, as the case may be, and to operate its properties and |
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| conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation, and the LLC is duly qualified to do business as a foreign limited liability company, and each of them is in good standing, in each case under the laws of the State of New York; | |||
| (ii) | the Company’s authorized capital stock is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be fully paid and nonassessable; the Company has complied in all material respects with the published rules of the NASDAQ Stock Market, Inc. regarding the issuance of additional shares as such rules relate to the issuance of the Shares (except that the Company provided notice of listing of additional shares relating to the Shares pursuant to Nasdaq Marketplace Rule 4310(c)(17)(D) six days prior to issuance), and upon official notice of issuance, the Shares will be duly listed on the Nasdaq Global Market; the certificates for the Shares comply in all material respects with the requirements of the DGCL; and the holders of outstanding shares of capital stock of the Company are not entitled, in connection with the issuance of the Shares, to any preemptive rights to subscribe for Shares pursuant to the DGCL or the Certificate of Incorporation or the By-Laws, or any agreement filed as an exhibit to the Registration Statement or any document incorporated by reference therein; | ||
| (iii) | to our knowledge (A) there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, the LLC, Progenics Pharmaceuticals Nevada, Inc., a Nevada corporation, Progenics Life Sciences Ltd, a private limited company incorporated under the laws of England, and Excelsior Life Sciences Ireland Limited, a company limited by shares incorporated under the laws of Ireland (together with the LLC and Progenics Nevada, the “Subsidiaries”), or the Company’s or any of the Subsidiaries’ property of a character required by Item 103 of Regulation S-K promulgated under the Securities Act to be disclosed in the Registration Statement which is not disclosed in the Prospectus as required and (B) there is no contract or other document of a character required by the Securities Act to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; | ||
| (iv) | the Registration Statement has become effective under the Securities Act; any required filing of the Prospectus, and supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus and all documents incorporated by reference in the Registration Statement and the Prospectus (other than the financial statements and schedules and other financial, accounting and statistical information contained therein, as to which such counsel expresses no opinion) comply or, with respect to the documents incorporated by reference, when such documents became effective or were filed with the Commission, complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act; | ||
| (v) | this Underwriting Agreement has been duly authorized, executed and delivered by the Company; | ||
| (vi) | the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; | ||
| (vii) | no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction, or by the National Association of Securities |
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| Dealers Inc. with respect to the underwriting arrangements, in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals as have been obtained; | |||
| (viii) | neither the issue and sale of the Shares, nor the consummation of any other of the transactions contemplated by the Underwriting Agreement, nor the fulfillment of the terms thereof, will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the LLC pursuant to, (1) the Certificate of Incorporation, the By-Laws, the Certificate of Formation or the LLC Agreement, (2) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument filed as an exhibit to the Registration Statement or any document incorporated by reference therein, or (3) any statute, law, rule or regulation applicable to the Company or the LLC, or any judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the LLC or any of the Company’s or the LLC’s properties known to us to be applicable to the Company or the LLC; and | ||
| (ix) | no holders of securities of the Company have rights to the inclusion of such securities in the offering pursuant to the terms of any agreement filed as an exhibit to the Registration Statement or any document incorporated by reference therein, other than those rights which have been waived. |
In addition, such counsel shall state as follows: Such counsel has not undertaken to determine
independently, and therefore does not assume any responsibility explicitly or implicitly for, the
accuracy, completeness or fairness of the statements contained in the Registration Statement, the
Base Prospectus or the Prospectus (except to the extent set forth in paragraph (ii) above). Such
counsel has, however, participated in conferences with officers of the Company, representatives of
the Underwriters, representatives of counsel to the Underwriters and representatives of the
Company’s independent auditors during which conferences the contents of the Registration Statement,
the Base Prospectus and the Prospectus were reviewed and discussed. Based upon and subject to the
foregoing, nothing has come to such counsel’s attention that causes such counsel to believe that
(a) any part of the Registration Statement, when such part is considered to have become effective
as to the underwriters pursuant to Section 11(d) of the Act and Rule 430B promulgated thereunder,
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, (b) the Base Prospectus,
at the Applicable Time, when taken together with the pricing information, contained an untrue
statement of a material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading or
(c) that the Prospectus, as of its date or as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading (except, in each case, as to the financial statements and the notes thereto and the
schedules and other financial and accounting data, and the statistical data derived therefrom,
included therein, as to all of which such counsel expresses no view).
In rendering such opinion, such counsel may rely (A) as to matters involving the application of
laws of any jurisdiction other than the State of New York or the Federal laws of the United States,
to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the Prospectus in this
paragraph (c) shall also include any supplements thereto at the respective Closing Date.
(d) The Company shall have requested and caused Xxxxxx & Xxxxxx LLP, patent counsel for
the Company, to have furnished to the Underwriters their opinion, dated the Firm Shares Closing
Date and any Option Shares Closing Date and addressed to the Underwriters, to the effect that such
counsel is familiar with the technology used by the Company in its business and has read the
portions of the Registration Statement and the Prospectus headed “Risk Factors — We are dependent
upon our patents and other intellectual property rights. The validity,
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enforceability and commercial value of these rights are highly uncertain,” and in the 2006
10-K under the headings “Part I — Item 1. Business — Licenses” and “- Patents and Proprietary
Technology” (collectively, the “Technology Portion”), and that, except to the extent that the
following opinions relate to the methylnaltrexone technology and products of the Company, and the
PSMA technology, as to which such counsel provides no opinion:
| (i) | such counsel has no knowledge of any facts that would preclude the Company from having clear title to the Company’s patents or patent applications referenced in the Technology Portion. To such counsel’s knowledge, the Company does not lack and will not be unable to obtain any rights or licenses to use any patent or know-how necessary to conduct the business now conducted or proposed to be conducted by the Company as described in the Prospectus, including but not limited to the Company’s business relating to HIV receptor technology and products (except with respect to the Columbia License Agreement and the Columbia Licensed Patents, as to which such counsel need express no opinion). To such counsel’s knowledge, the Company has not received any notice of infringement or of conflict with asserted rights of others insofar as any patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses or know-how, proprietary techniques, including processes and substances, and other similar rights and proprietary knowledge (except with respect to the Columbia License Agreement and the Columbia Licensed Patents, as to which such counsel need express no opinion) which could result in a material adverse effect on the condition (financial or otherwise), prospects, earning, business or properties of the Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). Such counsel is not aware of any issued patents of others (except with respect to the Columbia License Agreement and the Columbia Licensed Patents, as to which such counsel need express no opinion) that are infringed by specific products or processes of the Company, as described in the Prospectus, in such manner as to materially and adversely affect the Company; | ||
| (ii) | to such counsel’s knowledge, there are no legal or governmental proceedings pending relating to trade secrets, trademarks, service marks or other proprietary information or materials of the Company or the subsidiaries (except with respect to the Columbia License Agreement and the Columbia Licensed Patents, as to which such counsel need express no opinion), other than review of pending applications for patents, and to such counsel’s knowledge no such proceedings are threatened or contemplated by governmental authorities or others; | ||
| (iii) | such counsel does not know of any material contracts or other material documents relating to the Company’s proprietary information (except with respect to the Columbia License Agreement and the Columbia Licensed Patents, as to which such counsel need express no opinion), other than those filed as exhibits to the Registration Statement, the 2006 10-K; and | ||
| (iv) | the statements in the Technology Portion (except with respect to those statements that describe the Columbia License Agreement and the Columbia Licensed Patents, as to which such counsel need express no opinion), insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present, in all material respects, the information called for with respect to such documents and matters, and such counsel has no reason to believe that the statements therein are untrue or that there is an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Such counsel may rely on representations of the Company with respect to the factual matters contained in such statements, provided that such counsel shall state that nothing has come to the attention of such counsel that leads them to believe that such representations are not true and correct in all material respects. |
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(e) The Company shall have requested and caused Wolf, Greenfield & Sacks, P.C., special
patent counsel for the Company, to have furnished to the Underwriters their opinion dated the Firm
Shares Closing Date and any Option Shares Closing Date and addressed to the Underwriters, to the
effect that such counsel is familiar with the Company’s methylnaltrexone technology and products,
and its products based on PSMA technology licensed from Xxxxx-Xxxxxxxxx and has read the Technology
Portion, and that, solely with respect to the Company’s methylnaltrexone technology and products
(“MNTX Products”), and its PSMA technology licensed from Xxxxx-Xxxxxxxxx:
| (i) | to such counsel’s knowledge, the Company does not lack and will not be unable to obtain any rights or licenses to use any patent or know-how necessary to make, use, import, offer for sale and sell the Company’s MNTX Products described in the Prospectus and as presently used by the Company or as proposed to be used and sold by the Company as described in the Prospectus. To such counsel’s knowledge, the Company has not received any notice of infringement or of conflict with asserted rights of others with respect to any patents, patent applications, licenses or know-how, proprietary techniques, including processes and substances, and other similar rights and proprietary knowledge that could result in a material adverse effect on the condition (financial or otherwise), prospects, earning, business or properties of the Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). Such counsel is not aware of any patents of others that are not licensed by the Company and that are infringed by the Company as a result of the Company’s making, using, importing, offering for sale or selling its MNTX Products; | ||
| (ii) | to such counsel’s knowledge, neither the Company nor the subsidiaries has received any notice of infringement or of conflict with asserted rights of others with respect to any patents, patent applications, licenses or know-how, proprietary techniques, including processes and substances, and other similar rights and proprietary knowledge in the field of using PSMA for the treatment of disease that could result in a material adverse effect on the condition (financial or otherwise), prospects, earning, business or properties of the Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); | ||
| (iii) | to such counsel’s knowledge, there are no legal or governmental proceedings pending relating to proprietary information or materials of the Company, other than review of pending applications for patents, and to such counsel’s knowledge no such proceedings are threatened or contemplated by governmental authorities or others; and | ||
| (iv) | the statements in the Technology Portion, insofar as such statements constitute a summary of patents or of law, are accurate summaries and fairly and correctly present, in all material respects, the information called for with respect to such matters and such counsel has no reason to believe that the statements therein are untrue or that there is an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however that such counsel may rely on representations of the Company and the subsidiaries with respect to the factual matters contained in such statements, provided that such counsel shall state that nothing has come to the attention of such counsel which leads them to believe that such representations are not true and correct in all material respects. |
(f) The Underwriters shall have received from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Firm Shares Closing
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Date and any Option Shares Closing Date and addressed to the Underwriters, with respect to the
issuance and sale of the Shares, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished
to the Underwriters, at the time of execution of this Agreement and the Firm Shares Closing Date
and any Option Shares Closing Date, letters in accordance with Statement on Accounting Standards
No. 72, dated respectively at the time of execution of this Agreement and as of the Firm Shares
Closing Date and any Option Shares Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
| (i) | they are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) thereunder; | ||
| (ii) | in their opinion, the audited consolidated financial statements incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission; | ||
| (iii) | on the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of: |
| (1) | reading the minutes of the meetings of the stockholders, directors and executive and audit committees of the Company since December 31, 2006 as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter; | ||
| (2) | performing the procedures specified by the PCAOB for a review of interim financial information as described in Statement on Auditing Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated financial statements of the Company incorporated by references in the Registration Statement and the Prospectus; and | ||
| (3) | making inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 2006; |
| nothing came to their attention which caused them to believe that: |
| (A) | any unaudited financial statements incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included in quarterly reports on Form 10-Q under the Exchange Act; | ||
| (B) | any material modifications should be made to said unaudited condensed consolidated financial statements for them to be in conformity with |
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| generally accepted accounting principles incorporated by reference in the Registration Statement and the Prospectus; | |||
| (C) | with respect to the period subsequent to June 30, 2007, there were any changes, at a specified date not more than five business days prior to the date of delivery of such letter, in the capital stock of the Company, or increases in long-term debt of the Company as compared with the amounts shown on the June 30, 2007 balance sheet incorporated by reference in the Registration Statement and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters. |
| (iv) | Such letter shall also state that they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in under the captions “Summary Financial Data,” “Risk Factors,” “Capitalization,” and “Dilution,” in the Prospectus, the information included or incorporated by reference in Items 1, 1A, 6, 7, 7A and 12 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Prospectus, and the information included in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included or incorporated by reference in the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2007, incorporated by reference in the Registration Statement and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. | ||
| References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. |
(h) The Company shall have requested and caused Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx &
Xxxxxxxx, Nevada counsel for the Company, to have furnished to the Underwriters their opinion,
dated the Firm Shares Closing Date and any Option Shares Closing Date, and addressed to the
Underwriters, to the effect that:
| (i) | Progenics Pharmaceuticals Nevada, Inc. is validly existing as a corporation in good standing under the laws of the State of Nevada and has the corporate power and authority to carry on its business and to own, lease and operate its properties. | ||
| (ii) | The authorized capital stock of Progenics Pharmaceuticals Nevada, Inc. consists of 100 shares of common stock, $0.001 par value per share, 100 of which are outstanding. All the outstanding shares of capital stock of Progenics Pharmaceuticals Nevada, Inc. have been duly authorized and are validly issued, fully paid and non-assessable and are owned of record by Progenics Pharmaceuticals, Inc. |
(i) The Company shall have requested and caused Xxxx Xxxxxxx, Associate General Counsel
of the Company, to have furnished to the Underwriters an opinion, dated the Firm Shares Closing
Date and any Option Shares Closing Date, and addressed to the Underwriters, to the effect that:
| (i) | The Company’s outstanding shares of Common Stock issued after September 19, 2005 have been duly and validly authorized and issued and are fully paid and nonassessable. |
-21-
(j) The Company shall have furnished to the Underwriters a certificate of the Company,
signed by the Chief Executive Officer and the Chief Financial Officer of the Company, acting solely
in their capacities as such, dated the Firm Shares Closing Date and any Option Shares Closing Date,
to the effect that the signers of such certificate have carefully examined the Registration
Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus (and any
amendment or supplement thereto) and this Agreement and that:
| (i) | the representations and warranties of the Company in this Agreement are true and correct on and as of the Firm Shares Closing Date or the Option Shares Closing Date, as the case may be, with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Firm Shares Closing Date or the Option Shares Closing Date, as the case may be; | ||
| (ii) | no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; | ||
| (iii) | since the date of the most recent financial statements included or incorporated by reference in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, results of operations, business or properties of the Company and the subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and | ||
| (iv) | the Company owns one hundred percent (100%) of the outstanding membership interests of the LLC. |
(k) Since the respective dates as of which information is given in the Registration
Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (g) of this Section 3 or (ii)
any change, or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or properties of the Company and the
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Registration Statement, the Statutory
Prospectus, the General Disclosure Package or the Prospectus (exclusive of any amendment or
supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is,
in the sole judgment of the Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Shares as contemplated by Registration
Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus (exclusive
of any amendment or supplement thereto).
(l) Prior to each Closing Date, the Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may reasonably request.
(m) The Shares shall have been approved for listing on the NASDAQ Global Market, subject only
to official notice of issuance, and reasonably satisfactory evidence of such actions shall have
been provided to the Underwriters.
-22-
(n) Prior to the Firm Shares Closing Date, the Representatives shall have received copies of
the Lock-up Agreements executed by each entity or person listed on Schedule II hereto.
If any of the conditions specified in this Section 3 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, any Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 3 shall be delivered at the office of Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, on each Closing Date.
Covenants and other Agreements of the Company and the Underwriters. The Company
covenants and agrees as follows:
(a) The Company will use its best efforts to cause the Registration Statement, if not
effective at the time of execution of this Agreement, and any amendments thereto, to become
effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act
within the time period prescribed. The Company will file with the Commission all Issuer Free
Writing Prospectuses in the time and manner required under Rule 433(d).
(b) The Company shall promptly advise the Representatives in writing (i) when any
post-effective amendment to the Registration Statement shall have become effective or any
supplement to the Prospectus shall have been filed, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any preliminary
prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the
institution or threatening of any proceeding for that purpose and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification of the Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or supplement to the Prospectus
or any Issuer Free Writing Prospectus unless the Company has furnished the Representatives a copy
for its review prior to filing and shall not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice
referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or
the Rules, the Company promptly shall prepare and file with the Commission, subject to the second
sentence of paragraph (b) of this Section 4, an amendment or supplement
-23-
which shall correct such statement or omission or an amendment which shall effect such
compliance.
(d) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an
event or development as a result of which such Issuer Free Writing Prospectus would conflict with
the information contained in the Registration Statement or would include an untrue statement of a
material fact or would omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading, the Company will promptly notify the Representatives and will
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(e) The Company shall make generally available to its security holders and to the
Representatives as soon as practicable, but not later than 45 days after the end of the 12-month
period beginning at the end of the fiscal quarter of the Company during which the Effective Date
occurs (or 90 days if such 12-month period coincides with the Company’s fiscal year), an earning
statement (which need not be audited) of the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(f) Upon request, the Company shall furnish to the Representatives and counsel for the
Underwriters, without charge a copy of the Registration Statement (including exhibits thereto) and
all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. If applicable, the copies of the
Registration Statement, preliminary prospectus, any Issuer Free Writing Prospectus and Prospectus
and each amendment and supplement thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(g) The Company shall cooperate in all reasonable respects with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering
under the laws of such jurisdictions as the Representatives may designate and shall maintain such
qualifications in effect so long as required for the distribution of the Shares; provided, however,
that the Company shall not be required in connection therewith, as a condition thereof, to qualify
as a foreign corporation or to execute a general consent to service of process in any jurisdiction
or subject itself to taxation as doing business in any jurisdiction.
(h) The Company, during the period when the Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act and
the Rules or the Exchange Act, will file all reports and other documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods
required by the Exchange Act and the regulations promulgated thereunder.
(i) The Company will not, without the prior written consent of UBS Securities LLC, offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition (whether by actual
-24-
disposition or effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the Company or any affiliate
of the Company) directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any other shares of Common Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock, or publicly announce an intention to
effect any such transaction, for a period of 60 days after the date of the Underwriting Agreement
(the “Lock-Up Period”), provided, however, that (i) the Company may issue and sell Common Stock or
issue stock options pursuant to any employee stock option or equity incentive plan, employee stock
purchase plan, stock ownership plan or dividend reinvestment plan of the Company; (ii) the Company
may issue Common Stock issuable upon the conversion of securities or the exercise of options and
warrants outstanding at the time of execution of this Agreement; (iii) the Company may issue or
sell securities, or enter into options, warrants or other agreements providing for the issuance or
sale of securities, to a strategic partner or in connection with a strategic collaboration, joint
venture, licensing arrangement or other similar corporate transaction, provided that such strategic
partner, collaborator, joint venture partner, licensee or licensor agrees to be bound to the same
extent as the Company by the terms of this paragraph 4(i) (excluding the exceptions set forth in
(i), (ii) and (iii) hereof); (iv) the Company may file registration statements on Form S-8 relating
to shares of common stock which may be issued pursuant to any employee stock option or stock
purchase plan of the Company and (v) the Company may file a registration statement on Form S-3 for
a shelf registration of shares of common stock pursuant to Rule 415 promulgated under the
Securities Act. If (x) during the last 17 days of the Lock-Up Period the Company issues an
earnings release or material news or a material event relating to the Company occurs; or (y) prior
to the expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 60-day period; the restrictions
imposed in this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the material news or
material event; provided, however, that this sentence shall not apply if the research published or
distributed on the Company is compliant under Rule 139 of the Securities Act and the Company’s
securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
(j) The Company will not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
Reimbursement of Underwriters’ Expenses. If the sale of the Shares provided for
herein is not consummated because any condition to the obligations of the Underwriters set forth in
Section 3 hereof is not satisfied, because of any termination pursuant to Section 8 hereof or
because of any refusal, inability or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been reasonably incurred
by them in connection with the proposed purchase and sale of the Shares.
-25-
Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained any preliminary prospectus, the Registration Statement, the Statutory
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any “issuer-information” filed
or required to be filed pursuant to Rule 433(d) of the Rules, any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information relating to the
Underwriters furnished to the Company by or on behalf of any Underwriter specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Securities Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last
paragraph of the cover page regarding delivery of the Shares and, under the heading “Underwriting,”
(i) the list of Underwriters and their respective participation in the sale of the Shares and (ii)
the fourth, fifth, sixth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth
paragraphs, in any Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 6, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided
-26-
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel, if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with
a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, 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 unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company
and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending same) (collectively “Losses”) to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Underwriters on the other from the offering of the Shares;
provided, however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Shares) be responsible for any amount
in excess of the underwriting discount or commission applicable to the Shares purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also the relative fault
of the Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in
each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things,
-27-
whether any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the Company on the one
hand or the Underwriters on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions of this paragraph
(d), 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. For purposes of this Section 6, each person who controls an
Underwriter within the meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of either the Securities
Act or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this paragraph (d).
Default by an Underwriter. If, on the Firm Shares Closing Date or any Option Shares
Closing Date, as the case may be, any one or more Underwriters shall fail to purchase and pay for
any of the Shares agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Shares set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Shares set forth opposite the names of all the remaining
Underwriters) the Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Shares set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase any, of the Shares,
and if such nondefaulting Underwriters do not purchase all the Shares, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 7, the Firm Shares Closing Date or any
Option Shares Closing Date, as the case may be, shall be postponed for such period, not exceeding
five Business Days, as the Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
Termination. This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company prior to delivery of and payment for
the Shares to be purchased on a Closing Date, if at any time prior to such time (i) trading in the
Company’s Common Stock shall have been suspended by the Commission or the NASDAQ Global Market,
(ii) trading in securities generally on the New York Stock Exchange or the NASDAQ Global Market
shall have been suspended or limited or minimum prices shall have been established on such Exchange
or the NASDAQ Global Market, (iii) a banking moratorium
-28-
shall have been declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on financial markets is
such as to make it, in the sole judgment of the Underwriters, impractical or inadvisable to proceed
with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive of any
supplement thereto).
Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company and its officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 6
hereof, and will survive delivery of and payment for the Shares. The provisions of Sections 5 and
6 hereof shall survive the termination or cancellation of this Agreement.
Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Underwriters, will be mailed, delivered or telefaxed to UBS Securities
LLC, Syndicate Department, facsimile number 000-000-0000 and confirmed to Legal Department, UBS
Securities LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, if sent to the Company, will be
mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at Progenics Pharmaceuticals,
Inc., 000 Xxx Xxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, attention of the Legal Department.
Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 6 hereof, and no other person will have any right or
obligation hereunder.
No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters are
acting solely as underwriters in connection with the purchase and sale of the Shares. The Company
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arm’s length basis, and in no event do the
parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its
management, stockholders or creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the
Shares, either before or after the date hereof. The Underwriters hereby expressly disclaim any
fiduciary or similar obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions, and the Company
hereby confirms its understanding and agreement to that effect. The Company and the Underwriters
agree that they are each responsible for making their own independent judgments with respect to any
such transactions and that any opinions or views expressed by the Underwriters to the Company
regarding such transactions, including, but not limited to, any opinions or views with respect to
the price or market for the Shares, do not constitute advice or recommendations to the Company.
The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the Underwriters with respect to any breach or alleged breach of any
fiduciary or similar duty to the Company in
-29-
connection with the transactions contemplated by this Agreement or any matters leading up to
such transactions.
Applicable Law and Jurisdiction. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made and to be performed
within the State of New York.
Except as set forth below, no claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New York, which courts shall have
jurisdiction over the adjudication of such matters, and the Company consents to the jurisdiction of
such courts and personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any claim arising out of or in any way
relating to this Agreement is brought by any third party against UBS Securities LLC, CIBC World
Markets Corp., Xxxxxx Xxxxxxx & Co. Incorporated or any indemnified party. Each of UBS Securities
LLC, CIBC World Markets Corp., Xxxxxx Xxxxxxx & Co. Incorporated and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and may be enforced in any other courts to
the jurisdiction of which the Company is or may be subject, by suit upon such judgment.
Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
*****
Please confirm that the foregoing correctly sets forth the agreement among us.
| Very truly yours, | ||||||||
| PROGENICS PHARMACEUTICALS, INC. | ||||||||
| By | /s/ Xxxx X. Xxxxxx, M.D., Ph.D | |||||||
| Title: | Xxxx X. Xxxxxx, M.D., Ph.D. | |||||||
| Chief Executive Officer and | ||||||||
| Chief Science Officer | ||||||||
-30-
Confirmed:
UBS SECURITIES LLC
CIBC WORLD MARKETS CORP.
XXXXXX XXXXXXX & CO. INCORPORATED
CIBC WORLD MARKETS CORP.
XXXXXX XXXXXXX & CO. INCORPORATED
By:
|
UBS SECURITIES LLC
|
|||
By
|
/s/ Xxxx Xxxxx
|
|||
By:
|
UBS SECURITIES LLC
|
|||
By
|
/s/ Xxxxxx Xxxxx
|
|||
By:
|
CIBC WORLD MARKETS CORP. | |||
By
|
/s Xxxxxx XxxXxxxx
|
|||
| Capital Markets | ||||
By:
|
XXXXXX XXXXXXX & CO. INCORPORATED | |||
By
|
/s Xxxx X. Xxxxx
|
|||
-31-
SCHEDULE I
| Number of | ||||
| Firm Shares | ||||
| to be Purchased | ||||
| from the | ||||
| Name | Company | |||
UBS Securities LLC |
866,667 | |||
CIBC World Markets Corp. |
866,667 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
866,666 | |||
Total |
2,600,000 | |||
SCHEDULE II
Lock-up Signatories
Directors
Xxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
Xxxx Xxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
Xxxx Xxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxx
Executive Officers
Xxxx Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Israel
Xxxxx X. Xxxxxx
Xxxxxx X. XxXxxxxx
Xxxxxxx Xxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Israel
Xxxxx X. Xxxxxx
Xxxxxx X. XxXxxxxx
Xxxxxxx Xxxxx
Stockholders
Xxxx Xxxxx Xxxxx II
Tudor BVI Global Portfolio Ltd.
Tudor Arbitrage Partners X.X.
Xxxxx Proprietary Trading LLC
Tudor Global Trading LLC
Tudor Investment Corporation
Xxxx Xxxxx Xxxxx II
Tudor BVI Global Portfolio Ltd.
Tudor Arbitrage Partners X.X.
Xxxxx Proprietary Trading LLC
Tudor Global Trading LLC
Tudor Investment Corporation
SCHEDULE III
Issuer Free Writing Prospectuses
None.
SCHEDULE IV
Issuer:
|
Progenics Pharmaceuticals Inc. | |
Symbol:
|
NASDAQ/PGNX | |
Size:
|
$60,190,000 | |
Shares offered (all primary):
|
2,600,000 Shares | |
Greenshoe (all primary):
|
Option to purchase an additional 390,000 Shares | |
Public Offering Price:
|
$23.15 | |
Trade date:
|
September 19, 2007 | |
Closing date:
|
September 25, 2007 | |
CUSIP
|
743187 10 6 | |
Underwriters:
|
UBS Securities LLC | |
| CIBC World Markets Corp. | ||
| Xxxxxx Xxxxxxx & Co. Incorporated |
A copy of the final prospectus supplement and related prospectus concerning this offering may be
obtained from UBS Securities LLC, Prospectus Department, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
Exhibit A
FORM OF LOCK-UP AGREEMENT
(Each of Xxxx X. Xxxxxxxx, Xxxx Xxxxxx, Xxxx Xxxxx Xxxxx II, Xxxxx BVI Portfolio Ltd., Tudor
Arbitrage Partners L.P., Tudor Proprietary Trading LLC and Tudor Global Trading LLC have signed
forms substantially similar to the attached)
September [ ], 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), between Progenics Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), and each of you as Underwriters named therein, relating to an underwritten public
offering of Common Stock, $0.0013 par value (the “Common Stock”), of the Company.
In order to induce you to enter into the Underwriting Agreement, the undersigned will not,
without the prior written consent of UBS Securities LLC, offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the
undersigned or any person in privity with the undersigned or any affiliate of the undersigned),
directly or indirectly, including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder with respect to,
any shares of capital stock of the Company or any securities convertible into or exercisable or
exchangeable for such capital stock, or publicly announce an intention to effect any such
transaction, for a period of 60 days after the date of the Underwriting Agreement (the “Lock-up
Period”), other than shares of Common Stock disposed of (a) pursuant to a written plan for trading
securities that is designed to satisfy the requirements of Rule 10b5-1 promulgated under the
Exchange Act and is existing on the date hereof or (b) as a bona fide gift or to a trust for the
direct or indirect benefit of the undersigned and/or the immediate family of the undersigned,
provided that the recipient of such gift or such trust agrees to be bound by the terms of this
agreement, and provided further that prior written notice of any such disposition (which notice
shall include the number of shares being disposed of and the identity of the recipient) is given to
UBS Securities LLC.
If (x) during the last 17 days of the Lock-Up Period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (y) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 60-day period; the restrictions imposed in this letter
shall continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event; provided, however, that
this sentence shall not apply if the research
published or distributed on the Company is compliant under Rule 139 of the Securities Act of
1933, as amended, and the Company’s securities are actively traded as defined in Rule 101(c)(1) of
Regulation M of the Exchange Act.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
3
The agreement set forth above shall terminate and be of no further force and effect in the
event that the Underwriting Agreement has not been entered into on or before October 19, 2007. In
addition, if for any reason the Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
| Yours very truly, | ||||
| Address: |
4
