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EXHIBIT 1.1
2,700,000 Shares
RIBOGENE, INC.
Common Stock
Form of
UNDERWRITING AGREEMENT
________ __, 1998
GRUNTAL & CO., L.L.C.
000 Xxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
Dear Sirs:
RiboGene, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell an aggregate of 2,700,000 shares of its common stock, par value
$0.001 per share (the "Initial Securities"), to the several Underwriters named
in Schedule I hereto (the "Underwriters") for whom Gruntal & Co., L.L.C. is
acting as representative (the "Representative"). In addition, solely for the
purpose of covering over- allotments, the Company proposes to grant to the
several Underwriters, upon the terms and conditions set forth in Section 2
hereof, an option to purchase up to an additional 405,000 shares of Common
Stock of the Company (the "Option Securities"). The Company also proposes to
issue and sell to the Representative warrants (the "Warrants") pursuant to the
Representative's Warrant Agreement between the Company and the Representative
(the "Representative's Warrant Agreement") for the purchase of an additional
270,000 shares of Common Stock. The 270,000 shares of Common Stock issuable
upon exercise of the Representative's Warrants are hereinafter referred to as
the "Representative's Securities." The Initial Securities, the Option
Securities and the Representative's Securities are hereinafter collectively
referred to as the "Securities." The Company's common stock, par value $0.001
per share, including the Securities, is hereinafter referred to as the "Common
Stock." The Company wishes to confirm as follows its agreements with you and
the other Underwriters on whose behalf you are acting in connection with the
several purchases by the Underwriters of the Securities:
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (No. 333-38781) covering the registration of
the Securities under the Securities Act of 1933, as
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amended (the "1933 Act"), including the related preliminary prospectus, or
prospectuses, and either (A) has prepared and filed, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus or (B) if the Company has elected to
rely upon Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), will prepare and
file a prospectus, in accordance with the provisions of Rule 430A and Rule
424(b) ("Rule 424(b)") of the 1933 Act Regulations, promptly after execution
and delivery of this Agreement. Additionally, if the Company has elected to
rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, the Company will
prepare and file a term sheet (a "Term Sheet") in accordance with the
provisions of Rule 434 and Rule 424(b), promptly after execution and delivery
of this Agreement. The information, if any, included in such prospectus or in
such Term Sheet, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration
statement at the time it becomes effective (a) pursuant to paragraph (b) of
Rule 430A, is referred to herein as the "Rule 430A Information," or (b)
pursuant to paragraph (d) of Rule 434, is referred to herein as the "Rule 434
Information." Each prospectus used before the time such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information that was used after effectiveness and
prior to the execution and delivery of this Agreement is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
and schedules thereto, at the time it became effective and including, if
applicable, the Rule 430A Information or the Rule 434 Information, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein referred to as the
"Prospectus." If Rule 434 is relied upon, the term "Prospectus" shall refer to
the preliminary prospectus last furnished to the Underwriters in connection
with the offering of the Securities, together with the Term Sheet, and all
references to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment
or supplement to any of the foregoing shall be deemed to include the copy, if
any, filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein, the Company hereby agrees to issue
and sell to each Underwriter and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $ per share
(the "purchase price per share"), the number of Initial Securities set forth in
Schedule I opposite the name of such Underwriter under the column "Number of
Initial Securities to be Purchased from the Company" (or such number of Initial
Securities increased as set forth in Section 10 hereof).
Upon the basis of the representations, warranties and agreements
contained herein and subject to all the terms and conditions set forth herein,
the Company hereby grants an option (the "over-allotment option") to the
Underwriters to purchase from the Company, at the purchase price
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per share, up to an aggregate of 405,000 Option Securities. Option Securities
may be purchased solely for the purpose of covering over- allotments made in
connection with the offering of the Securities. Such option shall expire at
5:00 P.M., Chicago time, on the 45th day after the date of this Agreement (or,
if such 45th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading).
Such over-allotment option may be exercised at any time or from time to time
until its expiration. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company
that proportion of the total number of Option Securities as is equal to the
percentage of Initial Securities that such Underwriter is purchasing from the
Company (or such number of Initial Securities increased as set forth in Section
10 hereof), subject to such adjustments as you may determine to avoid
fractional shares.
On the Closing Date, the Company shall issue and sell to the
Representative Representative's Warrants at an aggregate purchase price of
$100, which warrants shall entitle the holders thereof to purchase an aggregate
of 270,000 Representative's Securities pursuant to the terms of and provisions
of the Representative's Warrant Agreement. The Representative's Warrants shall
be exercisable at any time following the first anniversary of the effective
date of the Registration Statement at an initial exercise price equal to one
hundred sixty-five percent (165%) of the initial public offering price of the
Securities and expiring five (5) years from the effective date of the
Registration Statement. The Representative's Warrant Agreement shall be
substantially in the form filed as Exhibit 1.2 to the Registration Statement.
Payment for the Representative's Warrants shall be made on the Closing Date.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that the Underwriters propose to make a public offering of the Securities as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable and initially to offer the Securities upon the
terms set forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Initial Securities shall be made at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, at 9:00 A.M., Chicago time, on the
third (fourth, if the pricing occurs after 4:30 p.m. (Eastern Time) on any
given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10 hereof) (the "Closing Date"). The place of
closing for the Initial Securities and the Closing Date may be varied by
agreement among you and the Company.
Delivery to the Underwriters of and payment for any Option Securities
to be purchased by the Underwriters shall be made at the aforementioned offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) at such time on such date
(an "Option Closing Date"), which may be the same as the Closing Date but shall
in no event be earlier than the Closing Date nor earlier than two nor later
than ten business days after the giving of the notice hereinafter referred to,
as shall be specified in a written notice from you on behalf of the
Underwriters to the Company of the Underwriters' determination to purchase a
number, specified in such notice, of Option Securities.
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The place of closing for any Option Securities and the Option Closing Date for
such Option Securities may be varied by agreement between you and the Company.
Certificates for the Initial Securities and for any Option Securities
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request by written notice (it being understood that
a facsimile transmission shall be deemed written notice) prior to 9:30 A.M.,
Chicago time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in Chicago, Illinois or New York, New York, as requested by
you in the aforesaid notice, for inspection and packaging not later than 9:30
A.M., Chicago time, on the business day next preceding the Closing Date or an
Option Closing Date, as the case may be. The certificates evidencing the
Initial Securities and any Option Securities to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case
may be, against payment of the purchase price therefor by wire transfer of same
day funds to the account designated by the Company. It is understood that each
Underwriter has authorized you, for its account, to accept delivery of,
acknowledge receipt of, and make payment of the purchase price for, the Initial
Securities and the Option Securities, if any, which it has agreed to purchase.
The Representative, individually and not as representative of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose check has not been received by the Closing Date or the Option
Closing Date, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
5. AGREEMENTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters as follows:
a. The Company will notify the Underwriters immediately,
and confirm the notice in writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
suspension of qualification of the Securities for offering or sale in any
jurisdiction or the initiation of any proceedings for such purpose and (v)
during the period when the Prospectus is required to be delivered under the
1933 Act or Securities Exchange Act of 1934, as amended (the "1934 Act"), of
any change, or any event or occurrence which could result in such a change, in
the Company's condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or the happening of any event,
including the filing of any information, documents or reports pursuant to the
1934 Act, that makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to state a material fact required by the
1933 Act or the 1933 Act Regulations to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus to comply with the 1933 Act, the 1933 Act Regulations
or any other law.
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The Company shall use its best efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, and, if at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption of the
Securities under any state securities or Blue Sky laws, the Company shall use
every reasonable effort to obtain the withdrawal or lifting of such order at
the earliest possible time.
b. The Company will give the Underwriters notice of its
intention to prepare or file any amendment to the Registration Statement
(including any post-effective amendment), any Rule 462(b) Registration
Statement, any Term Sheet or any amendment or supplement to the Prospectus
(including any revised prospectus or Term Sheet and preliminary prospectus
which the Company proposes for use by the Underwriters in connection with the
offering of the Securities which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective, whether or
not such revised prospectus or Term Sheet and preliminary prospectus is
required to be filed pursuant to Rule 424(b)), whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Underwriters with copies of
any Rule 462(b) Registration Statement, Term Sheet, amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment or supplement or use any such prospectus to which the Underwriters or
counsel for the Underwriters shall object.
c. The Company has furnished or will deliver to the
Underwriters and their counsel, without charge, as many signed and conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Underwriters may reasonably request. If applicable, the copies
of the Registration Statement and each amendment 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.
d. The Company will furnish to each Underwriter, without
charge, from time to time during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act, the 1934 Act, the 1933
Act Regulations or the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations"). If applicable, the Prospectus and any
amendments or supplements 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.
e. The Company will comply with the 1933 Act and the 1933
Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated
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in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act, the 1934 Act, the 1933 Act Regulations or the 1934
Act Regulations to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 5(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements and the
Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
f. During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission or the Nasdaq
[National Market ("NNM")] [Small Cap Market ("NSC")], and (ii) from time to
time such other information concerning the Company as you may request.
g. The Company will use its best efforts, in cooperation
with counsel to the Underwriters, to qualify the Securities for offering and
sale under the applicable securities or Blue Sky laws of such states and other
jurisdictions of the United States as the Underwriters may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
h. The Company will make generally available to its
security holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
i. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
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j. If, at the time that the Registration Statement
becomes effective, any Rule 430A Information or Rule 434 Information shall have
been omitted therefrom, then immediately following the execution of this
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with Rule 430A or Rule 434 and Rule 424(b), copies of
a Prospectus or Term Sheet containing such Rule 430A Information and Rule 434
Information, respectively, or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including an amended Prospectus),
containing such Rule 430A Information.
k. If the Company elects to rely upon Rule 462(b), the
Company shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees in
accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i)
10:00 P.M. Eastern Time on the date hereof and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2).
l. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
m. During a period of 180 days from the date of the
Prospectus, the Company will not, without the prior written consent of the
Representative, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities to be sold hereunder, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the conversion of
any security outstanding on the date hereof and referred to in the Prospectus,
(C) any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company referred to
in the Prospectus, (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan, or (E) __________ shares of Common Stock to
be purchased by Xxxxxx Laboratories ("Abbott") pursuant to the stock purchase
agreement, dated as of April 26, 1996, as amended to date, at a price per share
equal to the initial public offering price.
n. The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by each of
the Company's current officers and directors and each of its stockholders
designated by you.
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o. The Company will not waive, modify or amend, or
otherwise release any of the persons or entities who are parties to that
certain Tenth Amended and Restated Rights Agreement, dated March 23, 1998
(together with any predecessor agreement, the "Rights Agreements"), from their
respective obligations under the sale restrictions contained in the Rights
Agreements, in each case without the prior written consent of the
Representative.
p. The Company will supply the Underwriters with copies
of all correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Securities under the 1933
Act.
q. Prior to the Closing Date, the Company shall furnish
to the Underwriters, as soon as they have been prepared, copies of any
unaudited interim financial statements of the Company for any periods
subsequent to the periods covered by the financial statements appearing in the
Registration Statement and the Prospectus.
r. Prior to the Closing Date, the Company will issue no
press release or other communications directly or indirectly and hold no press
conference with respect to the Company, the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company, or the
offering of the Securities, without the prior written consent of the
Representative unless in the judgment of the Company and its counsel, and after
notification to the Representative, such press release or communication is
required by law.
s. The Company has not taken, nor will it take, directly
or indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Securities.
t. The Company will use its best efforts to maintain the
listing of the Securities on the [NNM] [NSC] and will file with [NNM] [NSC] all
documents and notices required by [NNM] [NSC]. [The Company will use its best
efforts to obtain approval for the listing of the Securities on the Nasdaq
National Market as soon as reasonably practicable from the date of this
Agreement.]
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
a. When the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto becomes
effective, at the date of the Prospectus, if different, and at the Closing Date
and the Option Closing Date, as the case may be, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and supplements
thereto complied or will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not contain
any untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and
any supplements or amendments thereto will not at the date of the Prospectus,
at the date of any such supplements or amendments, or at the Closing Date or
the Option Closing Date, if any, include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the requirements
of Rule 434 and the Prospectus shall not be "materially different," as such
term is used in Rule 434, from the Prospectus included in the Registration
Statement at the time it became effective. The representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus relating to any Underwriter made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter, through the Representative expressly for use in the
Registration Statement or Prospectus. The Company has not distributed any
offering materials in connection with the offering or sale of the Securities
other than the Registration Statement, the preliminary prospectus, the
Prospectus, the Term Sheet, if applicable, or any other materials, if any,
permitted by the 1933 Act or the 1933 Act Regulations.
b. Each preliminary prospectus and the prospectus filed
as part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations and, 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.
c. The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
d. The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of the
Company as of the dates indicated and the results of its operations for the
periods specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included in the Registration Statement present fairly the
information required to be stated therein. The financial information and
statistical data set forth in the Prospectus are prepared on an accounting
basis consistent with such financial statements.
e. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change or, to the best
knowledge of the Company, any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or not
arising in
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the ordinary course of business, (ii) there have been no transactions entered
into by the Company, other than those in the ordinary course of business, which
are material with respect to the Company, and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock. The Company has no material contingent obligations which
are not disclosed in the Registration Statement.
f. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not, singly
or in the aggregate, have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of the
Company.
g. The Company does not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity.
h. Each of this Agreement and the Representative's
Warrant Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general principles
of equity and except as rights to indemnity and contribution hereunder may be
limited by Federal or state securities laws or the public policy underlying
such laws.
i. The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under "Capitalization" as of
the dates stated therein (except for subsequent issuances, if any, pursuant to
this Agreement or pursuant to reservations, agreements, employee or director
benefit plans or the exercise of convertible securities referred to in the
Prospectus); the shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and non-
assessable and have not been issued in violation of or are not otherwise
subject to any preemptive or other similar rights; the Securities have been
duly authorized for issuance and sale to the Underwriters pursuant to this
Agreement and the Representative's Warrant Agreement, and, when issued and
delivered by the Company pursuant to this Agreement and the Representative's
Warrant Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable; the certificates
evidencing the Securities are in due and proper form under Delaware law; the
authorized capital stock of the Company, including the Securities, conforms to
all statements relating thereto contained in the Prospectus; and the issuance
of the Securities is not subject to preemptive or other similar rights. There
are no outstanding subscriptions, options, warrants, convertible or
exchangeable securities
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or other rights granted to or by the Company to purchase shares of Common Stock
or other securities of the Company and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock, in each case other than as described in
the Prospectus.
j. Except as disclosed in the Registration Statement and
except as would not, singly or in the aggregate, reasonably be expected to have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company, (A) the
Company is in compliance with all applicable Environmental Laws, (B) the
Company has all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with the requirements
of such permits authorizations and approvals, (C) there are no pending or, to
the best knowledge of the Company, threatened Environmental Claims against the
Company and (D) under applicable law, there are no circumstances with respect
to any property or operations of the Company that are reasonably likely to form
the basis of an Environmental Claim against the Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgement, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law.
k. The Company is not (i) in violation of its charter or
bylaws or (ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement,
voting trust, or other instrument or agreement to which the Company is a party
or by which it may be bound, or to which any of the property or assets of the
Company is subject; except in the case of clause (ii) above, as would not,
singly or in the aggregate, have a material adverse effect on the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company. The execution, delivery and performance of this
Agreement and the Representative's Warrant Agreement and the consummation of
the transactions contemplated herein and therein and compliance by the Company
with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of
the property or assets of the Company is subject, nor will such action result
in any violation
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of the provisions of the charter or bylaws of the Company or any applicable
statute, law, rule, regulation, ordinance, decision, directive or order.
l. No labor dispute with the employees of the Company
exists or, to the best knowledge of the Company, is imminent; and the Company
is not aware of any existing or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers or contractors which might,
singly or in the aggregate, be expected to result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company.
m. There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the best knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which, singly or in the aggregate, might result
in any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company, or which,
singly or in the aggregate, might materially and adversely affect the
properties or assets thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental proceedings
to which the Company is a party or of which any of its property or assets is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
which are required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
n. The Company owns or is licensed to use all patents,
patent applications, inventions, trademarks, trade names, applications for
registration of trademarks, service marks, service xxxx applications,
copyrights, know-how, manufacturing processes, formulae, trade secrets,
licenses and rights in any thereof and any other intangible property and assets
(herein called the "Proprietary Rights") which are material to the business of
the Company as now conducted and as proposed to be conducted, in each case as
described in the Prospectus. The Company takes security measures adequate to
assert trade secret protection in its non-patented technology. The description
of the Proprietary Rights is correct in all material respects and fairly and
correctly describes the Company's rights with respect thereto. Except as
specifically identified and described in the Prospectus, the Company does not
have any knowledge of, and the Company has not given or received any notice of,
any pending conflicts with or infringement of the rights of others with respect
to any Proprietary Rights or with respect to any license of Proprietary Rights.
Except as specifically identified and described in the Prospectus, no action,
suit, arbitration, or legal, administrative or other proceeding, or
investigation is pending, or, to the best knowledge of the Company, threatened,
which involves any Proprietary Rights. The Company is not subject to any
judgment, order, writ, injunction or decree of any court or any Federal, state,
local, foreign or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any arbitrator, nor has it
entered into or is a party to any contract which restricts or impairs the use
of any such Proprietary Rights in a manner which would have a material adverse
effect on the use of any of the
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Proprietary Rights. To the best knowledge of the Company, no Proprietary
Rights used by the Company, and no services or products sold by the Company,
conflict with or infringe upon any proprietary rights available to any third
party. The Company has not received written notice of any pending conflict
with or infringement upon such third-party proprietary rights. The Company has
not entered into any consent, indemnification, forbearance to xxx or settlement
agreement with respect to Proprietary Rights other than in the ordinary course
of business. To the best knowledge of the Company, no claims have been
asserted by any person with respect to the validity of the Company's ownership
or right to use the Proprietary Rights and, to the best knowledge of the
Company, there is no reasonable basis for any such claim to be successful.
Except as specifically identified and described in the Prospectus, the
Proprietary Rights are valid and enforceable and no registration relating
thereto has lapsed, expired or been abandoned or cancelled or is the subject of
cancellation or other adversarial proceedings, and all applications therefore
are pending and are in good standing. The Company has complied, in all
material respects, with its respective contractual obligations relating to the
protection of the Proprietary Rights used pursuant to licenses. To the best
knowledge of the Company, no person is infringing on or violating the
Proprietary Rights owned or used by the Company.
o. No registration, authorization, approval,
qualification or consent of any court or governmental authority or agency is
necessary in connection with the offering, issuance or sale of the Securities
hereunder or under the Representative's Warrant Agreement, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state securities
or Blue Sky laws (or such as may be required by the National Association of
Securities Dealers, Inc. ("NASD")).
p. The Company possesses and is operating in compliance
with all material licenses, certificates, consents, authorities, approvals and
permits (collectively, "permits") from all state, Federal, foreign and other
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such permit or any circumstance which would
lead it to believe that such proceedings are reasonably likely.
q. Except as described in the Prospectus, there are no
persons with registration or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by
the Company under the 1933 Act.
r. No order preventing or suspending the use of any
preliminary prospectus has been issued and no proceedings for that purpose are
pending, threatened, or, to the knowledge of the Company, threatened or
contemplated by the Commission; and to the best knowledge of the Company, no
order suspending the offering of the Securities in any jurisdiction designated
by the Underwriters pursuant to Section 5(g) of this Agreement has been issued
and, to the best knowledge of the Company, no proceedings for that purpose have
been instituted or threatened or are contemplated.
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s. Except as specifically identified and described in
the Prospectus, the Company has good and marketable title to its properties,
including but not limited to Proprietary Rights, free and clear of all material
security interests, mortgages, pledges, liens, charges, encumbrances, claims
and equities of record. The properties of the Company are, in the aggregate,
in good repair (reasonable wear and tear excepted), and suitable for their
respective uses. Any real properties held under lease by the Company are held
by it under valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the conduct of the
business of the Company.
t. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets, (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.
u. The Company has conducted and is conducting its
business in compliance with all applicable Federal, state, local and foreign
statutes, laws, rules, regulations, ordinances, codes, decisions, decrees,
directives and orders, except where the failure to do so would not, singly or
in the aggregate, have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of the
Company.
v. To the best of the Company's knowledge, neither the
Company nor any employee or agent of the Company has made any payment of funds
of the Company or received or retained any funds in violation of any law, rule
or regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
w. The Company is not now, and after sale of the
Securities to be sold by it hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds"
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
x. All offers and sales of capital stock of the Company
were at all relevant times duly registered or exempt from the registration
requirements of the 1933 Act and were duly registered or subject to an
available exemption from the registration requirements of the applicable state
securities or Blue Sky laws.
y. The Common Stock is registered pursuant to Section
12(g) of the 1934 Act. The Securities have been duly authorized for quotation
on [NNM] [NSC]. The Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Stock under the 1934
Act or delisting the Common Stock from [NNM] [NSC], nor
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has the Company received any notification that the Commission or [NNM] [NSC] is
contemplating terminating such registration or listing.
z. Neither the Company nor, to its knowledge, any of its
officers, directors or affiliates has taken, and at the Closing Date and at any
later Option Closing Date, neither the Company nor, to its knowledge, any of
its officers, directors or affiliates will have taken, directly or indirectly,
any action which has constituted, or might reasonably be expected to
constitute, the stabilization or manipulation of the price of sale or resale of
the Securities.
aa. The Company maintains insurance of the types and in
amounts adequate for its business and consistent with insurance coverage
maintained by similar companies in similar business, including but not limited
to, insurance covering clinical trial liability and real and personal property
owned or leased against theft, damage, destruction, acts of vandalism and all
other risks customarily insured against, all of which insurance is in full
force and effect.
bb. The Company has filed all material tax returns
required to be filed, which returns are true and correct in all material
respects, and the Company is not in default in the payment of any taxes,
including penalties and interest, assessments, fees and other charges, shown
thereon due or otherwise assessed, other than those being contested in good
faith and for which adequate reserves have been provided or those currently
payable without interest which were payable pursuant to said returns or any
assessments with respect thereto.
cc. Except as described in the Prospectus, to the best of
the Company's knowledge, there are no rulemaking or similar proceedings before
The United States Food and Drug Administration or comparable Federal, state,
local or foreign government bodies which involve or affect the Company, which,
if the subject of an action unfavorable to the Company, could involve a
prospective material adverse change in or effect on the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company.
dd. The Company has not received any communication
(whether written or oral) relating to the termination or threatened termination
or modification or threatened modification of any material consulting,
licensing, marketing, research and development, cooperative or any similar
agreement, including, without limitation, the collaboration and license
agreements listed under the section of the Prospectus entitled,
"Business---Collaborative and License Agreements." Each such agreement is in
effect substantially as described in such section of the Prospectus.
ee. To the best knowledge of the Company, if any
full-time employee identified in the Prospectus has entered into any
non-competition, non-disclosure, confidentiality or other similar agreement
with any party other than the Company, such employee is neither in violation
thereof nor is expected to be in violation thereof as a result of the business
conducted or expected to be conducted by the Company as described in the
Prospectus or such person's performance of his obligations to the Company; and
the Company has not received written
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notice that any consultant or scientific advisor of the Company is in violation
of any non-competition, non-disclosure, confidentiality or similar agreement.
The agreements executed by the Company's employees, consultants and other
advisors respecting trade secrets, confidentiality, or intellectual property
rights are valid, binding and enforceable in accordance with their express
terms.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold harmless (i)
each Underwriter and (ii) each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling person")
and (iii) the respective directors, officers, partners and employees of any of
the Underwriters or any controlling person (any person referred to in clause
(i), (ii) or (iii) may hereinafter be referred to as an "Indemnified Person")
to the fullest extent lawful, from and against any and all losses, claims,
damages, liabilities and expenses whatsoever (including, without limitation,
all reasonable costs of pursuing, investigating and defending any claim, suit
or action or any investigation or proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Person), directly or indirectly, caused by, related
to, based upon or arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereto, including the Rule 430A Information and
Rule 434 Information, if applicable, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or caused by, related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which has
been made therein or omitted therefrom in reliance upon and in conformity with
the information relating to such Underwriter furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph a. with respect to any preliminary prospectus shall not inure to
the benefit of any Underwriter (or related Indemnified Person) on account of
any such loss, claim, damage, liability or expense arising from the sale of the
Securities by such Underwriter to any person if a copy of the Prospectus shall
not have been delivered or sent to such person within the time required by the
1933 Act or the 1933 Act Regulations, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained
in such preliminary prospectus was corrected in the Prospectus (or any
amendment or supplement thereto), provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending.
b. If any action, suit or proceeding shall be brought
against any Indemnified Person in respect of which indemnity may be sought
against the Company, such
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Indemnified Person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Indemnified Person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the indemnifying parties have agreed in writing to pay such fees and expenses,
(ii) the indemnifying parties have failed to assume the defense and employ
counsel or (iii) the named parties to any such action, suit, investigation or
proceeding (including any impleaded parties) include both such Indemnified
Person and the indemnifying parties and representation of such Indemnified
Person and any indemnifying party by the same counsel would, in the reasonable
judgment of the Indemnified Person, be inappropriate due to actual or potential
differing interests between them (in which case the indemnifying party shall
not have the right to assume the defense of such action, suit or proceeding on
behalf of such Indemnified Person). It is understood, however, that the
indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by the Representative, and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying parties shall not be liable
for any settlement of any such action, suit or proceeding effected without
their written consent, which consent shall not be unreasonably withheld, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the indemnifying parties
agree to indemnify and hold harmless any Indemnified Person, to the extent
provided in the preceding paragraph, from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
c. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, any person who controls the Company within the
meaning of Section 15 of the 1933 Act, to the same extent as the foregoing
indemnity from the Company to each Indemnified Person, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus, or any
amendment or supplement thereto. If any action, suit, investigation or
proceeding shall be brought against the Company, any of its directors, any such
officer or any such controlling person based on the Registration Statement, the
Prospectus or any preliminary prospectus, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter shall have the
rights and duties given to the Company by paragraph (b) above, and the Company,
its directors, any such officer and any such controlling person shall have the
rights and duties given to the Indemnified Persons by paragraph (a) above.
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d. If the indemnification provided for in this Section 7
is unavailable to, or insufficient to hold harmless, an indemnified party under
paragraphs (a) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law
or judicial determination, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus or, if Rule 434 is used, the corresponding location on the Term
Sheet. The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The indemnity
and contribution obligations of the Company set forth herein shall be in
addition to any liability or obligation the Company may otherwise have to any
Indemnified Person.
e. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 7, no Underwriter (or any of its related Indemnified Persons) shall be
required to contribute (whether pursuant to subsection (a) or (c) or otherwise)
any amount in excess of the underwriting discount applicable to the Securities
underwritten by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Securities set forth opposite their names in Schedule I hereto (or such
numbers of Securities increased as set forth in Section 10 hereof) and not
joint.
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f. No indemnifying party shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such action, suit or proceeding.
g. Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Indemnified Person, the Company, its
directors or officers or any person controlling the Company, (ii) acceptance of
any Securities and payment therefor hereunder and (iii) any termination of this
Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Initial Securities hereunder are subject to
the following conditions:
a. The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective on the date hereof; no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission. 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 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. If the Company has elected to rely upon Rule 434, a Term Sheet
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period.
b. The Underwriters shall have received:
(i) The favorable opinion, dated as of the
Closing Date, of Xxxxxx Godward LLP, counsel for the
Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect that:
A. The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation.
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B. The Company has corporate power and authority
to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus and to enter into and
perform its obligations under this Agreement and the
Representative's Warrant Agreement.
C. The Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, except to the extent that
the failure to be so qualified or be in good standing
would not have a material adverse effect upon the
business or condition, financial or otherwise, of the
Company.
D. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus
under "Capitalization" as of the dates stated therein
(except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans or
the exercise of convertible securities referred to in
the Prospectus), and the shares of issued and
outstanding capital stock of the Company, including
the Common Stock, have been duly authorized and
validly issued and are fully paid and non-assessable
and, to the best of their knowledge and information,
have not been issued in violation of or are not
otherwise subject to any preemptive rights or other
similar rights.
E. The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of
the consideration set forth herein, will be validly
issued and fully paid and non-assessable; and, to the
best of their knowledge and information, the issuance
of the Securities is not subject to preemptive or
other similar rights.
F. To the best of their knowledge and information,
except as described in the Prospectus, there are no
outstanding options, warrants or other rights granted
to or by the Company to purchase shares of Common
Stock or other securities of the Company and there are
no written commitments, plans or arrangements to issue
any shares of Common Stock or other securities.
G. Each of this Agreement and the Representative's
Warrant Agreement has been duly authorized, executed
and delivered by the Company.
H. At the time the Registration Statement became
effective and at the Closing Date, the Registration
Statement (other than the financial statements and
supporting schedules included therein, as to which no
opinion need be
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rendered) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations.
I. The form of certificate used to evidence the
Securities is in due and proper form and complies with
all applicable statutory requirements.
J. To the best of their knowledge and information,
there are no legal or governmental proceedings pending
or threatened which individually or in the aggregate
are required to be disclosed in the Registration
Statement other than those disclosed therein.
K. The information in the Prospectus under "Risk
Factors--Shares Eligible for Future Sale," "Business
--Collaborative and License Agreements," "Management
--Employment Agreements and Change of Control
Agreements," "Management--Stock Plans and Employee
Benefit Plans," "Certain Transactions," "Description
of Capital Stock" and "Shares Eligible for Future
Sale" to the extent that it constitutes matters of
law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed
by them and is correct in all material respects and
fairly and correctly presents the information with
respect thereto.
L. To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, deeds, trusts, notes, leases, subleases,
voting trusts, voting agreements or other instruments
or agreements required to be described or referred to
in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct
in all material respects and fairly and correctly
presents the information called for with respect
thereto; and to the best of their knowledge and
information, no default exists in the due performance
or observance of any material obligation, agreement,
covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting trust, voting
agreement or other instrument or agreement of the
Company.
M. No authorization, approval, consent or order of
any court or governmental authority or agency is
required on behalf of the Company in connection with
the offering, issuance or sale of the Securities to
the Underwriters, except such as may be required under
the 1933 Act or the 1933 Act Regulations or state
securities or Blue Sky laws or such as may be required
by the NASD; and the execution, delivery and
performance of this Agreement and the Representative's
Warrant Agreement and the consummation of the
transactions contemplated herein and therein and the
compliance
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by the Company with its obligations hereunder and
thereunder will not conflict with or constitute a
breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, note,
deed, trust, lease, sublease, voting trust, voting
agreement or other instrument or agreement
("instruments") listed on a schedule to be attached to
their opinion (which schedule shall include all
instruments (A) filed as an exhibit to the
Registration Statement or (B) included in a
certificate of an officer of the Company setting forth
any other instruments material to the Company or any
other instrument identified by you or your counsel) to
which the Company is a party or by which it may be
bound, or to which any of the property or assets of
the Company is subject, nor will such action result in
any violation of the provisions of the charter or
bylaws of the Company or any applicable statute, law,
rule, regulation, ordinance, code, decision or
directive or any order known to them of any court or
governmental agency having jurisdiction over the
Company or any of its properties or assets.
N. Except as described in the Prospectus, to the
best of their knowledge and information, there are no
agreements between the Company and any persons
providing such persons with registration or other
similar rights to have any securities registered
pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
O. The Company is not an "investment company" or a
company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended.
P. All sales of the Company's capital stock during
the nineteen months immediately prior to the date
hereof were at all relevant times duly registered or
exempt from the registration requirements of the 1933
Act.
Q. To the best of their knowledge and information,
the Company is in compliance with, and conducts its
business in conformity with, all applicable laws and
regulations relating to the operation of its business
as described in the Registration Statement, except to
the extent that any failure so to comply or conform
would not have a material adverse effect upon the
business or condition, financial or otherwise, of the
Company.
R. The Registration Statement has become effective
under the 1933 Act; any required filing of the
Prospectus, and any supplements thereto or the Term
Sheet, pursuant to Rule 424(b) and if applicable, Rule
434, has been made in the manner and within the time
period required; and to the best of
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their knowledge and information, no stop order
suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings therefor have been instituted or are
pending or contemplated under the 1933 Act.
S. The Representative's Warrants are exercisable
for Common Stock in accordance with the terms of the
Representative's Warrant Agreement and at the prices
therein provided; the shares of Common Stock of the
Company issuable upon the exercise of the
Representative's Warrants have been duly authorized
and reserved for issuance upon such exercise and such
shares, when issued upon such exercise in accordance
with the terms of the Representative's Warrant
Agreement, will be duly authorized, validly issued,
fully paid and non- assessable; and there are no
preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or
transfer of, any shares of the Common Stock of the
Company issuable upon exercise of the Representative's
Warrants pursuant to the Company's charter or by-laws
or any agreement or other outstanding instrument known
to such counsel after due inquiry.
(ii) The favorable opinion, dated as of the
Closing Date, of Xxxxxx & Xxxxxxx LLP, patent counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that: [NEGOTIATION AND INSERTION
OF P&E OPINIONS TO COME]
A. The statements in the Prospectus relating to
United States patent matters, under the captions "Risk
Factors--Dependence on Patents and Proprietary
Rights," "Business--The RiboGene Programs,"
"Business-- Collaborative and Licensing Agreements"
and "Business--Patents and Proprietary Rights,"
insofar as such statements constitute matters of law,
legal conclusions, or summaries of legal matters or
proceedings, are correct in all material respects and
present fairly the information purported to be shown.
B. To the best of their knowledge and information,
with respect to the United States patent applications
that are referred to in the Registration Statement and
listed in Schedules IV and V hereto (herein called the
"Applications"), the sections of the Registration
Statement entitled "Risk Factors-- Dependence on
Patents and Proprietary Rights," "Business--The
RiboGene Programs," "Business--Collaborative and
Licensing Agreements" and "Business--Patents and
Proprietary Rights," at the time the Registration
Statement became effective, did not contain any untrue
statement of material fact or omit to state a material
fact required to be stated therein or necessary to
make the statements therein, not misleading.
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C. To the best of their knowledge and information,
with respect to the Applications, the sections of the
Prospectus entitled "Risk Factors--Dependence on
Patents and Proprietary Rights," "Business--The
RiboGene Programs," "Business--Collaborative and
Licensing Agreements" and "Business--Patents and
Proprietary Rights," as of its date and as of the
Closing, do not contain any untrue statement of
material fact or omit to state a material fact
necessary to make the statements therein, in light of
the circumstances in which they were made, not
misleading.
D. With respect to United States patent matters,
nothing has come to their attention which would lead
them to believe that the sections of the Registration
Statement entitled "Risk Factors--Dependence on
Patents and Proprietary Rights," "Business--The
RiboGene Programs," "Business--Collaborative and
Licensing Agreements" and "Business--Patents and
Proprietary Rights," at the time the Registration
Statement became effective, contained any untrue
statement of material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein, not
misleading.
E. With respect to United States patent matters,
nothing has come to their attention which would lead
them to believe that the sections of the Prospectus
entitled "Risk Factors--Dependence on Patents and
Proprietary Rights," "Business--The RiboGene
Programs," "Business--Collaborative and Licensing
Agreements" and "Business--Patents and Proprietary
Rights," as of the Prospectus' date and as of the
Closing Date, contain any untrue statement of material
fact of omit to state a material fact necessary to
make the statements therein, in light of the
circumstances in which they were made, not misleading.
F. The Company is listed in the records of the
appropriate foreign patent offices as the sole
assignee of record of each of the foreign patents that
are referred to in the Registration Statement and
listed on Schedule VI hereto (herein called the
"Foreign Patents") and each of the foreign
applications that are referred to in the Registration
Statement and listed on Schedule VII hereto (herein
called the "Foreign Applications"). To the best of
their knowledge and information, there are no asserted
or unasserted claims of any persons relating to the
scope or ownership of the Foreign Patents or the
Foreign Applications, there are no liens which have
been filed against any of the Foreign Patents or the
Foreign Applications, there are no material defects of
form in the preparation or filing of the Foreign
Applications, the Foreign Applications are being
diligently prosecuted, and none of the Foreign
Applications has been finally rejected or abandoned.
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G. Except as otherwise disclosed in the
Prospectus, nothing has come to their attention that
leads them to believe that the Applications and the
Foreign Applications will not eventuate in issued
patents, or that any patents issued in respect of any
such Applications or Foreign Applications will not be
valid or will not afford the Company reasonable patent
protection relative to the subject matter thereof.
H. To the best of their knowledge and information,
except as described in the Prospectus, and with the
exception of proceedings before the United States
Patent and Trademark Office, there are no pending, or
threatened, legal or governmental proceedings with
respect to any of the United States patents referred
to in the Registration Statement and listed on
Schedules II and III hereto (herein called the
"Patents") or the Applications.
I. According to the records of the United States
Patent and Trademark Office, which are current as of
[DATE], the Company owns each of the Patents and the
patent applications that are referred to in the
Registration Statement and listed on Schedule IV
hereto.
J. To the best of their knowledge and information,
except as described in the Prospectus and except for
rights which may be reserved to the United States
government, no third party has any rights to any of
the Patents or Applications.
K. To the best of their knowledge and information,
no interference has been declared or provoked with
respect to any of the Patents or the Applications.
L. To the best of their knowledge and information,
there is no presently-pending inventorship challenge
with respect to any of the Patents or the
Applications.
M. To the best of their knowledge and information,
without any searches specifically having been
conducted, or having been required to have been
conducted, no third party is infringing on any of the
Patents.
N. To the best of their knowledge and information,
the Company has not received any notice challenging
the Company's rights to any of the Patents or the
Applications.
O. To the best of their knowledge and information,
the Company has not received any notice challenging
the validity or enforceability of any of the Patents.
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P. While there can be no guarantee that any
particular patent application will issue as a patent,
each of the Applications hereto presently is being
properly and diligently prosecuted in the United
States Patent and Trademark Office.
Q. To the best of their knowledge and information,
for each Application, all information known to them to
be "material to patentability," as defined in 37
C.F.R. Section 1.56(b), has been disclosed, or will be
disclosed, pursuant to 00 X.X.X. Xxxxxxx 0.00, xx xxx
Xxxxxx Xxxxxx Patent and Trademark Office.
R. To the best of their knowledge and information,
without any searches specifically having been
conducted, or having been required to have been
conducted, for the purpose of rendering this opinion,
while there can be no guarantee that any particular
patent application will issue as a patent, each of the
Applications discloses patentable subject matter.
S. The Company has an exclusive license to each of
the patent applications and patents listed in Schedule
VIII hereto; and the licenses granting such rights are
listed in Schedule IX hereto, each entry of which
lists the numbers of the patent applications and
patents to which it pertains. All of the licenses
listed in Schedule IX hereto are duly executed, are in
effect, are validly binding, and are enforceable in
accordance with their terms; and none of them has been
terminated or been the subject of a termination
notice.
T. To the best of their knowledge and information,
neither the Company nor the licensor is in default
(declared or undeclared) of any material provision of
any of the licenses listed in Schedule IX, there has
not been any allegation of default or threat of
termination by any party thereto, no person has
challenged the validity and enforceability of any of
such licenses, and all payments having come due under
each of such licenses, if any, have been made.
U. To the best of their knowledge and information,
there are no asserted or unasserted claims by any
persons regarding any of the licenses listed in
Schedule IX, there are no ongoing arbitrations or
other legal proceedings with respect to any of them,
and no such arbitration or legal proceeding is
threatened or contemplated.
V. To the best of their knowledge and information,
except as otherwise disclosed in the Prospectus, no
claim, which is presently pending, has been asserted
against the Company relating to the potential
infringement
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of, or conflict with, any Patents, trademarks,
copyrights, trade secrets, or proprietary rights, of
others.
(iii) The favorable opinion, dated as of the
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), counsel for the Underwriters with respect to the
issuance and sale of the Securities, the Registration
Statement and the Prospectus and such other related matters as
the Underwriters shall reasonably request.
(iv) In giving their opinions required by
subsections (b)(i) and (b)(iii), respectively, of this Section
8, Xxxxxx Godward LLP and Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois) shall each additionally state that nothing has come
to their attention that leads them to believe that the
Registration Statement (except for financial statements and
schedules and other financial information included therein, as
to which counsel need make no statement), at the time it
became effective, 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 or that the Prospectus (except for financial
statements and schedules and other financial information
included therein, as to which counsel need make no statement),
as of its date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes
effective, in which case at the time it is first provided to
the Underwriters for such use) or at the Closing Date or the
Option Closing Date, as the case may be, included or includes
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.
c. (i) There shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business, (ii) the representations and warranties of the Company in
Section 6 hereof shall be true and correct with the same force and effect as
though expressly made at and as of the Closing Date, except to the extent that
any such representation or warranty relates to a specific date, (iii) the
Company shall have complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date, (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission and (v) the Representative shall
have received a certificate, dated the Closing Date and signed by the President
or any Vice President and the chief
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financial or accounting officer of the Company to the effect set forth in
clauses (i), (ii), (iii) and (iv) above.
d. At the time of the execution of this Agreement, the
Underwriters shall have received from Ernst & Young LLP a letter dated such
date, in form and substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
e. The Underwriters shall have received from Ernst &
Young LLP a letter, dated as of the Closing Date, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to the Closing Date.
f. The Securities shall have been approved for quotation
on [NNM] [NSC].
g. In the event that the Underwriters exercise their
option provided in Section 2 hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company
hereunder shall be true and correct as of the Option Closing Date and, at the
relevant Option Closing Date, the Underwriters shall have received:
(1) A certificate, dated such Option
Closing Date, of the President or any Vice President of the
Company and of the chief financial or accounting officer of
the Company confirming that the certificate delivered at the
Closing Date pursuant to Section 8 (c) hereof remains true and
correct as of such Option Closing Date.
(2) The favorable opinion of Xxxxxx
Godward LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such
Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the
same effect as the opinion required by Sections 8 (b)(i) and 8
(b)(iv) hereof (except such subsections thereof as are then
inapplicable).
(3) The favorable opinion of Xxxxxx &
Xxxxxxx LLP, patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated
such Option Closing Date to the same effect as the opinion
required by Section 8(b)(ii) hereof.
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(4) The favorable opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the
Underwriters, dated such Option Closing Date, relating to the
Option Securities to be purchased on such Option Closing Date
and otherwise to the same effect as the opinion required by
Sections 8 (b)(iii) and 8 (b)(iv) hereof.
(5) A letter from Ernst & Young LLP in
form and substance satisfactory to the Underwriters and dated
such Option Closing Date, substantially the same in form and
substance as the letter furnished to the Underwriters pursuant
to Section 8(e) hereof, except that the "specified date" in
the letter furnished pursuant to this Section 8(g)(5) shall be
a date not more than three business days prior to such Option
Closing Date.
h. On or before the Closing Date, the Company shall have
executed and delivered to the Representative (i) the Representative's Warrant
Agreement in final form and substance satisfactory to the Representative and
(ii) the Representative's Warrants issued in such names and in such
denominations as shall have been provided to the Company in writing by the
Representative.
i. At the date of this Agreement, the Underwriters shall
have received lock-up agreements in form and substance satisfactory to the
Underwriters by the persons designated by you.
j. Counsel for the Underwriters shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
k. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
l. Any certificate or document signed by any officer of
the Company and delivered to you, as Representative of the Underwriters, or to
counsel for the Underwriters, pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the
statements made therein.
m. If any condition specified in this Section 8 shall not
have been fulfilled when and as required to be fulfilled, this Agreement, or,
in the case of any condition to the purchase of Option Securities, on an Option
Closing Date which is after the Closing Date, the obligations of the several
Underwriters to purchase the relevant Option Securities, may be terminated
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30
by the Representative by notice to the Company at any time at or prior to
Closing Date or such an Option Closing Date as the case may be, and such
termination shall be without liability of any party to any other party except
as provided in Section 9 and except that Sections 6 and 7 shall survive any
such termination and remain in full force and effect.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each preliminary prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight and charges for
counting and packaging) of such copies of the Registration Statement, each
preliminary prospectus, the Prospectus, and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp taxes in connection with the original issuance and sale of
the Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in connection
with the original issuance and sale of the Securities; (v) the registration of
the Common Stock under the 1934 Act and the quotation of the Securities on
[NNM] [NSC]; (vi) the registration or qualification of the Securities for offer
and sale under the securities or Blue Sky laws of the several states as
provided in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of one counsel for the Underwriters relating to the preparation,
printing or reproduction, and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification); (vii) the filing fees
and the reasonable fees and expenses of one counsel for the Underwriters
incident to securing any required review by the NASD; and (viii) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
The Company further agrees that, in addition to the expenses payable
pursuant to the immediately preceding paragraph, it will pay to the
Representative on the Closing Date by certified or bank cashier's check or, at
the election of the Representative, by deduction from the proceeds of the
offering contemplated herein a non-accountable expense allowance equal to three
percent (3%) of the aggregate initial public offering price of the Firm Shares.
In the event the Representative elects to exercise the over-allotment option
described in Section 2 hereof, the Company agrees to pay to the Representative
on the Option Closing Date (by certified or bank cashier's check or, at the
Representative's election, by deduction from the proceeds of the Option Shares)
a non-accountable expense allowance equal to three percent (3%) of the
aggregate initial public offering price of the Option Shares.
If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 or pursuant to clauses (ii), (iii), (iv) and (v)
of Section 11 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the Company to
comply, in any material
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respect, with the terms or fulfill, in any material respect, any of the
conditions of this Agreement, the Company agrees to reimburse the
Representative for all reasonable out-of-pocket expenses (including reasonable
fees and expenses of one counsel for the Underwriters) incurred by you in
connection herewith.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by or on behalf of the
parties hereto; or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Securities may commence, when notification of the effectiveness of the
Registration Statement or such post-effective amendment has been released by
the Commission. Until such time as this Agreement shall have become effective,
it may be terminated by the Company, by notifying you, or by you, as
Representative of the several Underwriters, by notifying the Company.
If one or more of the Underwriters shall fail on the Closing Date to
purchase the Initial Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Representative shall
have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
a. if the number of Defaulted Securities does not exceed
10% of the number of Initial Securities, the non-defaulting Underwriters shall
be obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
b. if the number of Defaulted Securities exceeds 10% of
the number of Initial Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
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11. TERMINATION OF AGREEMENT. a. The Underwriters may terminate
this Agreement, by written notice to the Company, at any time at or prior to
the Closing Date or Option Closing Date, as the case may be, (i) if there has
been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, (ii) if there has occurred any change in the
financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in your judgement, impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities,
(iii) if trading in the Common Stock has been suspended by the Commission, or
if trading generally on the American Stock Exchange, the New York Stock
Exchange or in the over-the-counter markets has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or markets or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal, New York or Illinois authorities, (iv) the
enactment, publication, decree or other promulgation of any Federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your judgement materially and adversely affects or may materially or
adversely affect the business or operations of the Company or (v) the taking of
any action by any Federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your judgement has a material adverse
effect on the securities markets in the United States, and would in your
judgement make it impracticable or inadvisable to market the Securities or to
enforce any contract for the sale thereof. Notice of such termination may be
given by telegram, telecopy or telephone and shall be subsequently confirmed by
letter.
b. If this Agreement is terminated pursuant to this
Section 11, such termination shall be without liability of any party to any
other party except as provided in Section 9 and provided further that Sections
6 and 7 shall survive such termination and remain in full force and effect.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside front cover page, and the statements under the caption "Underwriting" in
any preliminary prospectus and in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters through you as such
information is referred to in Sections 5(a) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company at the office of the
Company at 00000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief
Executive Officer, with a copy to Xxxxxx Godward LLP, Five Palo Alto Square,
0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx;
or (ii) if to you, as Representative of the several Underwriters, Gruntal &
Co., L.L.C., 000 Xxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention:
_______________.
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14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of Illinois
applicable to contracts made and to be performed within the State of Illinois.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall
not become effective unless at least one counterpart hereof shall have been
executed and delivered on behalf of each party hereto.
15. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the several Underwriters, the Company, its directors and officers,
the other persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the
Securities in his status as such purchaser.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
RIBOGENE, INC.
By:
-----------------------------------
President and Chief
Executive Officer
Confirmed as of the date first
above mentioned on behalf of
the Representative and the other
several Underwriters named in Schedule I
hereto.
GRUNTAL & CO., L.L.C.
As Representative of the Several Underwriters
By GRUNTAL & CO., L.L.C.
By:
------------------------------
Vice President
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SCHEDULE I
RIBOGENE, INC.
Number of Initial
Securities to be
Underwriter Purchased from the Company
----------- --------------------------
Gruntal & Co., L.L.C.
---------
Total 2,700,000
35
