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EXHIBIT 1.01
-Shares
ALLOS THERAPEUTICS, INC.
Common Stock
UNDERWRITING AGREEMENT
-, 2000
XX XXXXX SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
U.S. BANCORP XXXXX XXXXXXX, INC.
As Representatives of the several Underwriters
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Allos Therapeutics, Inc., a Delaware corporation (the
"Company"), proposes to sell, pursuant to the terms of this Agreement,
to the several underwriters named in Schedule A hereto (the
"Underwriters," or, each, an "Underwriter"), an aggregate of - shares
of Common Stock, $0.001 par value (the "Common Stock") of the Company.
The aggregate of - shares so proposed to be sold is hereinafter
referred to as the "Firm Stock". The Company also proposes to sell to
the Underwriters, upon the terms and conditions set forth in Section 3
hereof, up to an additional - shares of Common Stock (the "Optional
Stock"). The Firm Stock and the Optional Stock are hereinafter
collectively referred to as the "Stock". XX Xxxxx Securities
Corporation ("XX Xxxxx"), Prudential Securities Incorporated and U.S.
Bancorp Xxxxx Xxxxxxx, Inc. are acting as representatives of the
several Underwriters and in such capacity are hereinafter referred to
as the "Representatives".
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-95439)
in the form in which it became or becomes effective and also
in such form as it may be when any post-effective amendment
thereto shall become effective with respect to the Stock,
including any preeffective prospectuses included as part of
the registration statement as originally filed or as part of
any amendment or supplement thereto, or filed pursuant to Rule
424 under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, copies of which have heretofore
been delivered to you, has been prepared by the Company in
conformity with the requirements of the Securities Act and has
been filed with the Commission under the Securities Act; one
or more amendments to such registration statement, including
in each case an amended preeffective prospectus, copies of
which amendments have heretofore been delivered to you, have
been so prepared and filed. If it is contemplated, at the time
this Agreement is executed, that a post-effective amendment to
the registration statement will be filed and must be declared
effective before the offering of the Stock may commence,
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the term "Registration Statement" as used in this Agreement
means the registration statement as amended by said
post-effective amendment. The term "Registration Statement" as
used in this Agreement shall also include any registration
statement relating to the Stock that is filed and declared
effective pursuant to Rule 462(b) under the Securities Act.
The term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement,
or, (A) if the prospectus included in the Registration
Statement omits information in reliance on Rule 430A under the
Securities Act and such information is included in a
prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act, the term "Prospectus" as used in
this Agreement means the prospectus in the form included in
the Registration Statement as supplemented by the addition of
the Rule 430A information contained in the prospectus filed
with the Commission pursuant to Rule 424(b) and (B) if
prospectuses that meet the requirements of Section 10(a) of
the Securities Act are delivered pursuant to Rule 434 under
the Securities Act, then (i) the term "Prospectus" as used in
this Agreement means the "prospectus subject to completion"
(as such term is defined in Rule 434(g) under the Securities
Act) as supplemented by (a) the addition of Rule 430A
information or other information contained in the form of
prospectus delivered pursuant to Rule 434(b)(2) under the
Securities Act or (b) the information contained in the term
sheets described in Rule 434(b)(3) under the Securities Act,
and (ii) the date of such prospectuses shall be deemed to be
the date of the term sheets. The term "Preeffective
Prospectus" as used in this Agreement means the prospectus
subject to completion in the form included in the Registration
Statement at the time of the initial filing of the
Registration Statement with the Commission, and as such
prospectus shall have been amended from time to time prior to
the date of the Prospectus.
(b) The Commission has not issued or threatened to issue any
order preventing or suspending the use of any Preeffective
Prospectus, and, at its date of issue, each Preeffective
Prospectus conformed in all material respects with the
requirements of the Securities Act and did not include any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; and, when the
Registration Statement becomes effective and at all times
subsequent thereto up to and including each of the Closing
Dates (as hereinafter defined), the Registration Statement and
the Prospectus and any amendments or supplements thereto
contained and will contain all material statements and
information required to be included therein by the Securities
Act and conformed and will conform in all material respects to
the requirements of the Securities Act and neither the
Registration Statement nor the Prospectus, nor any amendment
or supplement thereto, included or will include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
foregoing representations, warranties and agreements shall not
apply to information contained in or omitted from any
Preeffective Prospectus or the Registration Statement or the
Prospectus or any such amendment or supplement thereto in
reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter,
directly or through you, specifically for use in the
preparation thereof; there is no franchise, lease, contract,
agreement or document required to be described in the
Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described
or filed therein as required; and all descriptions of any such
franchises, leases, contracts, agreements or documents
contained in the Registration Statement are accurate and
complete descriptions of such documents in all material
respects.
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(c) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and
except as set forth or contemplated in the Prospectus, the
Company has not incurred any liabilities or obligations,
direct or contingent, nor entered into any transactions not in
the ordinary course of business, and there has not been any
material adverse change in the condition (financial or
otherwise), properties, business, management, prospects, net
worth or results of operations of the Company or any change in
the capital stock, short-term or long-term debt of the
Company.
(d) The financial statements, together with the related notes,
set forth in the Prospectus fairly present, on the basis
stated in the Registration Statement, the financial position
and the results of operations and changes in financial
position of the Company at the respective dates or for the
respective periods therein specified. Such statements and
related notes have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
except as may be set forth in the Prospectus. The selected
financial and statistical data set forth in the Prospectus
fairly present, on the basis stated in Registration Statement,
the information set forth therein.
(e) PricewaterhouseCoopers LLP, who have expressed their
opinions on the audited financial statements included in the
Registration Statement and the Prospectus are independent
public accountants as required by the Securities Act and the
Rules and Regulations.
(f) The Company has been duly organized and is validly
existing and in good standing as a corporation under the laws
of its jurisdiction of organization, with corporate power and
authority to own or lease its properties and to conduct its
business as described in the Prospectus; the Company is in
possession of and operating in compliance with all franchises,
grants, authorizations, licenses, permits, easements,
consents, certificates and orders required for the conduct of
its business, all of which are valid and in full force and
effect, except to the extent that the failure to be in such
possession would not have a material adverse effect on the
operations of the Company; and the Company is duly qualified
to do business and in good standing as a foreign corporation
in all other jurisdictions where its ownership or leasing of
properties or the conduct of its business requires such
qualification, except to the extent that the failure to so
qualify would not have a material adverse effect on the
operations of the Company. The Company has all requisite power
and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications,
licenses and permits of and from all public regulatory or
governmental agencies and bodies to own, lease and operate its
properties and conduct its business as now being conducted and
as described in the Registration Statement and the Prospectus,
and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in
the Registration Statement and the Prospectus.
(g) The Company's authorized and outstanding capital stock
will be on the Closing Dates, as set forth under the heading
"Capitalization" in the Prospectus; the outstanding shares of
common stock of the Company conform to the description thereof
in the Prospectus and have been duly authorized and validly
issued and are fully paid and nonassessable and have been
issued in compliance with all federal and state securities
laws and were not issued in violation of or subject to any
preemptive rights or similar rights to subscribe for or
purchase securities and conform to the description thereof
contained in the Prospectus. Except as disclosed in and or
contemplated by the Prospectus and the financial statements of
the Company and related notes thereto included in the
Prospectus, the Company does not have outstanding any options
or warrants to purchase, or any preemptive rights or other
rights to subscribe for or to
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purchase any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of its
capital stock or any such options, rights, convertible
securities or obligations, except for options granted
subsequent to the date of information provided in the
Prospectus pursuant to the Company's employee and stock option
plans as disclosed in the Prospectus. The description of the
Company's stock option and other stock plans or arrangements,
and the options or other rights granted or exercised
thereunder, as set forth in the Prospectus, accurately and
fairly presents the information required to be shown with
respect to such plans, arrangements, options and rights.
(h) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized
and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid
and nonassessable and free of any preemptive or similar rights
and will conform to the description thereof in the Prospectus.
(i) Except as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company is a
party or of which any property of the Company is subject,
which, if determined adversely to the Company, might
individually or in the aggregate (i) prevent or adversely
affect the transactions contemplated by this Agreement, (ii)
suspend the effectiveness of the Registration Statement, (iii)
prevent or suspend the use of the Preeffective Prospectus in
any jurisdiction or (iv) result in a material adverse change
in the condition (financial or otherwise), properties,
business, management, prospects, net worth or results of
operations of the Company and there is no valid basis for any
such legal or governmental proceeding; and to the best of the
Company's knowledge no such proceedings are threatened or
contemplated against the Company by governmental authorities
or others. The Company is not a party nor subject to the
provisions of any material injunction, judgment, decree or
order of any court, regulatory body or other governmental
agency or body. The description of the Company's litigation
under the heading "Legal Proceedings" in the Prospectus is
true and correct and complies with the Rules and Regulations.
(j) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated
(A) will not result in any violation of the provisions of the
certificate of incorporation, by-laws or other organizational
documents of the Company, or any law, order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or
assets, (B) will not conflict with or result in a breach or
violation of any of the terms or provisions of or constitute a
default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company is a party or by which it or any of its properties is
or may be bound, the Certificate of Incorporation, By-laws or
other organizational documents of the Company, or any law,
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties or will result in the creation of a lien.
(k) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby,
except such as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or under the Securities
Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or the securities or "Blue Sky" laws of any
jurisdiction in connection with the purchase and distribution
of the Stock by the Underwriters.
(l) The Company has the full corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder (including to issue, sell and deliver
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the Stock), and this Agreement has been duly and validly
authorized, executed and delivered by the Company and is a
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to
the extent that rights to indemnity and contribution hereunder
may be limited by federal or state securities laws or the
public policy underlying such laws.
(m) The Company is in compliance with, and conducts its
business in conformity with, all applicable federal, state,
local and foreign laws, rules and regulations or any court or
governmental agency or body, except to the extent that the
failure to so comply would not have a material adverse effect
on the operations of the Company; to the knowledge of the
Company, otherwise than as set forth in the Registration
Statement and the Prospectus, no prospective change in any of
such federal or state laws, rules or regulations has been
adopted which, when made effective, would have a material
adverse effect on the operations of the Company.
(n) The Company has filed all necessary federal, state, local
and foreign income, payroll, franchise and other tax returns
and has paid all taxes shown as due thereon or with respect to
any of its properties, and there is no tax deficiency that has
been, or to the knowledge of the Company is likely to be,
asserted against the Company or any of its properties or
assets that would adversely affect the financial position,
business or operations of the Company.
(o) No person or entity has the right to require registration
of shares of Common Stock or other securities of the Company
in the offering contemplated by the Prospectus because of the
filing or effectiveness of the Registration Statement or
otherwise, except for persons and entities who have expressly
waived such right or who have been given proper notice and
have failed to exercise such right within the time or times
required under the terms and conditions of such right.
(p) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any
action designed or intended to stabilize or manipulate the
price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation
of the price of any security of the Company.
(q) The Company has provided the Representatives with all
financial statements since -, 199- to the date hereof that are
available to the officers of the Company, including financial
statements for the months of - and - of 199-.
(r) The Company owns or possesses the right to use all
patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the
Prospectus as being owned or licensed by it or necessary for
the conduct of its business, and the Company is not aware of
any claim to the contrary or any challenge by any other person
to the rights of the Company with respect to the foregoing.
The Company's business as now conducted and as proposed to be
conducted does not and will not infringe or conflict with in
any material respect patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses or other
intellectual property or franchise right of any person. Except
as described in the Prospectus, no claim has been made against
the Company alleging the infringement by the Company of any
patent, trademark, service xxxx, trade name, copyright, trade
secret, license in or other intellectual property right or
franchise right of any person.
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(s) The Company has performed all material obligations
required to be performed by it under all contracts required by
Item 601(b)(10) of Regulation S-K under the Securities Act to
be filed as exhibits to the Registration Statement, and
neither the Company nor any other party to such contract is in
default under or in breach of any such obligations. The
Company has not received any notice of such default or breach.
(t) The Company is not involved in any labor dispute nor is
any such dispute threatened. The Company is not aware that (A)
any executive, key employee or significant group of employees
of the Company plans to terminate employment with the Company
or (B) any such executive or key employee is subject to any
noncompete, nondisclosure, confidentiality, employment,
consulting or similar agreement that would be violated by the
present or proposed business activities of the Company. The
Company does not have or expect to have any liability for any
prohibited transaction or funding deficiency or any complete
or partial withdrawal liability with respect to any pension,
profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
to which the Company makes or ever has made a contribution and
in which any employee of the Company is or has ever been a
participant. With respect to such plans, the Company is in
compliance in all material respects with all applicable
provisions of ERISA.
(u) The Company has obtained the written agreement described
in Section 8(l) of this Agreement from each of its officers,
directors and holders of Common Stock listed on Schedule C
hereto.
(v) The Company has, and as of the Closing Dates will have,
good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned
or proposed to be owned by it which is material to the
business of the Company, in each case free and clear of all
liens, encumbrances and defects except such as are described
the Prospectus or such as would not have a material adverse
effect on the Company; and any real property and buildings
held under lease by the Company or proposed to be held after
giving effect to the transactions described in the Prospectus
are, or will be as of each of the Closing Dates, held by it
under valid, subsisting and enforceable leases with such
exceptions as would not have a material adverse effect on the
Company, in each case except as described in or contemplated
by the Prospectus.
(w) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such
amounts as are customary for companies at the Company's stage
of development engaged in the business in which it is engaged
or proposes to engage after giving effect to the transactions
described in the Prospectus; and the Company does not have any
reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the
Company, except as described in or contemplated by the
Prospectus.
(x) Other than as contemplated by this Agreement, there is no
broker, finder or other party that is entitled to receive from
the Company any brokerage or finder's fee or other fee or
commission as a result of any of the transactions contemplated
by this Agreement.
(y) The Company has no subsidiaries.
(z) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with
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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
existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(aa) To 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.
(bb) The Company is not and, after application of the net
proceeds of this offering as described under the caption "Use
of Proceeds" in the Prospectus, will not become an "investment
company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of
1940, as amended.
(cc) The Company has not distributed and, prior to the later
of (i) the Closing Date and (ii) the completion of the
distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of
the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or other
materials, if any permitted by the Act.
Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company as to the
matters covered thereby.
3. Purchase by, and Sale and Delivery to, Underwriters--Closing Dates. The
Company agrees to sell to the Underwriters the Firm Stock, and on the
basis of the representations, warranties, covenants and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Underwriters agree, severally and not jointly, to purchase
the Firm Stock from the Company, the number of shares of Firm Stock to
be purchased by each Underwriter being set opposite its name in
Schedule A, subject to adjustment in accordance with Section 12 hereof,
at U.S.$ _per share (the "Purchase Price").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters (in the form of
definitive certificates, issued in such names and in such denominations
as the Representatives may direct by notice in writing to the Company
given at or prior to 12:00 Noon, New York Time, on the second full
business day preceding the First Closing Date (as defined below) or, if
no such direction is received, in the names of the respective
Underwriters or in such other names as XX Xxxxx may designate (solely
for the purpose of administrative convenience) and in such
denominations as XX Xxxxx may determine, against payment of the
aggregate Purchase Price therefor by certified or official bank check
or checks in immediately available funds (same day funds), payable to
the order of the Company, all at the offices of Xxxxx & Xxxx LLP, Xxx
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time and date of the
delivery and closing shall be at 10:00 A.M., New York Time, on March ,
2000, in accordance with Rule 15c6-1 of the Exchange Act. The time and
date of such payment and delivery are herein referred to as the "First
Closing Date". The First Closing Date and the location of delivery of,
and the form of payment for, the Firm Stock may be varied by agreement
between the Company and XX Xxxxx. The First Closing Date may be
postponed pursuant to the provisions of Section 12.
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The Company shall make the certificates for the Stock available to the
Representatives for examination on behalf of the Underwriters not later
than 10:00 A.M., New York Time, on the business day preceding the First
Closing Date at the offices of XX Xxxxx Securities Corporation,
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
It is understood that XX Xxxxx, individually and not as a
Representative of the several Underwriters, may (but shall not be
obligated to) make payment to the Company on behalf of any Underwriter
or Underwriters, for the Stock to be purchased by such Underwriter or
Underwriters. Any such payment by XX Xxxxx shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
The several Underwriters agree to make an initial public offering of
the Firm Stock at the initial public offering price as soon after the
effectiveness of the Registration Statement as in their judgment is
advisable. The Representatives shall promptly advise the Company of the
making of the initial public offering. The Company is advised by you
that the Firm Stock is to be offered to the public initially at U.S.
$________ a share (the "Public Offering Price") and to certain dealers
selected by you at a price that represents a concession not in excess
of U.S. $_________ a share under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a concession,
not in excess of U.S. $__________ a share, to any Underwriter or to
certain other dealers.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the
Prospectus, the Company hereby grants to the Underwriters an option to
purchase, severally and not jointly, up to the aggregate number of
shares of Optional Stock set forth opposite the Company's name on
Schedule B hereto, for an aggregate of up to - shares. The price per
share to be paid for the Optional Stock shall be the Purchase Price.
The option granted hereby may be exercised as to all or any part of the
Optional Stock at any time, and from time to time, not more than thirty
(30) days subsequent to the effective date of this Agreement. No
Optional Stock shall be sold and delivered unless the Firm Stock
previously has been, or simultaneously is, sold and delivered. The
right to purchase the Optional Stock or any portion thereof may be
surrendered and terminated at any time upon notice by the Underwriters
to the Company.
The option granted hereby may be exercised by the Underwriters by
giving written notice from XX Xxxxx to the Company setting forth the
number of shares of the Optional Stock to be purchased by them and the
date and time for delivery of and payment for the Optional Stock. Each
date and time for delivery of and payment for the Optional Stock (which
may be the First Closing Date, but not earlier) is herein called the
"Option Closing Date" and shall in no event be earlier than two (2)
business days nor later than ten (10) business days after written
notice is given. (The Option Closing Date and the First Closing Date
are herein called the "Closing Dates".) All purchases of Optional Stock
from the Company shall be made on a pro rata basis. Optional Stock
shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Stock set forth opposite
such Underwriter's name in Schedule B hereto bears to the total number
of shares of Firm Stock (subject to adjustment by the Underwriters to
eliminate odd lots). Upon exercise of the option by the Underwriters,
the Company agrees to sell to the Underwriters the number of shares of
Optional Stock set forth in the written notice of exercise and the
Underwriters agree, severally and not jointly and subject to the terms
and conditions herein set forth, to purchase the number of such shares
determined as aforesaid.
The Company will deliver the Optional Stock to the Underwriters (in the
form of definitive certificates, issued in such names and in such
denominations as the Representatives may direct by notice in writing to
the Company given at or prior to 12:00 Noon, New York Time, on the
second full business day preceding the Option Closing Date or, if no
such direction is received, in the names of the respective Underwriters
or in such other names as XX Xxxxx may designate (solely
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for the purpose of administrative convenience) and in such
denominations as XX Xxxxx may determine, against payment of
the aggregate Purchase Price therefor by certified or official
bank check or checks in Clearing House funds (next day funds),
payable to the order of the Company all at the offices of
Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Company shall make the certificates for the
Optional Stock available to the Underwriters for examination
not later than 10:00 A.M., New York Time, on the business day
preceding the Option Closing Date at the offices of XX Xxxxx
Securities Corporation, Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Option Closing Date and the location of delivery
of, and the form of payment for, the Option Stock may be
varied by agreement between the Company and XX Xxxxx. The
Option Closing Date may be postponed pursuant to the
provisions of Section 12.
4. Covenants and Agreements of the Company. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will (i) if the Company and the
Representatives have determined not to proceed pursuant to
Rule 430A of the of the Rules and Regulations, use its best
efforts to cause the Registration Statement to become
effective, (ii) if the Company and the Representatives have
determined to proceed pursuant to Rule 430A of the Rules and
Regulations, use its best efforts to comply with the
provisions of and make all requisite filings with the
Commission pursuant to Rule 430A and Rule 424 of the Rules and
Regulations and (iii) if the Company and the Representatives
have determined to deliver Prospectuses pursuant to Rule 434
of the Rules and Regulations, to use its best efforts to
comply with all the applicable provisions thereof. The Company
will advise the Representatives promptly as to the time at
which the Registration Statement becomes effective, will
advise the Representatives promptly of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or of the institution of any
proceedings for that purpose, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as
soon as possible the lifting thereof, if issued. The Company
will advise the Representatives promptly of the receipt of any
comments of the Commission or any request by the Commission
for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information and
will not at any time file any amendment to the Registration
Statement or supplement to the Prospectus which shall not
previously have been submitted to the Representatives a
reasonable time prior to the proposed filing thereof or to
which the Representatives shall reasonably object in writing
or which is not in compliance with the Securities Act and the
Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may be
necessary to enable the several Underwriters to continue the
distribution of the Stock and will use its best efforts to
cause the same to become effective as promptly as possible.
(c) If at any time after the effective date of the
Registration Statement when a prospectus relating to the Stock
is required to be delivered under the Securities Act any event
relating to or affecting the Company occurs as a result of
which the Prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Securities Act, the
Company will promptly notify the Representatives thereof and
will prepare an amended or supplemented prospectus which will
correct such statement or omission; and in case any
Underwriter is required to deliver a prospectus relating to
the Stock nine (9) months or
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more after the effective date of the Registration Statement,
the Company upon the request of the Representatives and at the
expense of such Underwriter will prepare promptly such
prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the
Securities Act.
(d) The Company will deliver to the Representatives, at or
before the Closing Dates, signed copies of the Registration
Statement, as originally filed with the Commission, and all
amendments thereto including all financial statements and
exhibits thereto, and will deliver to the Representatives such
number of copies of the Registration Statement, including such
financial statements but without exhibits, and all amendments
thereto, as the Representatives may reasonably request. The
Company will deliver or mail to or upon the order of the
Representatives, from time to time until the effective date of
the Registration Statement, as many copies of the Preeffective
Prospectus as the Representatives may reasonably request. The
Company will deliver or mail to or upon the order of the
Representatives on the date of the initial public offering,
and thereafter from time to time during the period when
delivery of a prospectus relating to the Stock is required
under the Securities Act, as many copies of the Prospectus, in
final form or as thereafter amended or supplemented as the
Representatives may reasonably request; provided, however,
that the expense of the preparation and delivery of any
prospectus required for use nine (9) months or more after the
effective date of the Registration Statement shall be borne by
the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its
shareholders as soon as practicable, but not later than
fifteen (15) months after the effective date of the
Registration Statement, an earning statement which will be in
reasonable detail (but which need not be audited) and which
will comply with Section 11(a) of the Securities Act, covering
a period of at least twelve (12) months beginning after the
"effective date" (as defined in Rule 158 under the Securities
Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to
enable the Stock to be registered or qualified for offering
and sale by the Underwriters and by dealers under the
securities laws of such jurisdictions as the Representatives
may designate and at the request of the Representatives will
make such applications and furnish such consents to service of
process or other documents as may be required of it as the
issuer of the Stock for that purpose; provided, however, that
the Company shall not be required to qualify to do business or
to file a general consent (other than that arising out of the
offering or sale of the Stock) to service of process in any
such jurisdiction where it is not now so subject. The Company
will, from time to time, prepare and file such statements and
reports as are or may be required of it as the issuer of the
Stock to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for the
distribution of the Stock. The Company will advise the
Representatives promptly after the Company becomes aware of
the suspension of the qualifications or registration of (or
any such exception relating to) the Common Stock of the
Company for offering, sale or trading in any jurisdiction or
of any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any orders
suspending such qualifications, registration or exception, the
Company will, with the cooperation of the Representatives use
its best efforts to obtain the withdrawal thereof.
(g) The Company will furnish to its shareholders as soon as
practicable after the end of each fiscal year an annual report
containing financial statements certified by independent
public accountants, will furnish to its shareholders as soon
as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration
Statement) summary financial information of the Company for
such quarter in reasonable detail. During the
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period of five (5) years from the date hereof, the Company
will deliver to the Representatives and, upon request of the
Representatives, to each of the other Underwriters, as soon as
they are available after the end of the fiscal year, copies of
each annual report of the Company containing the balance sheet
of the Company as of the close of such fiscal year and
statements of income, stockholders' equity and cash flows for
the year then ended and the opinion thereon of the Company's
independent public accountants, (i) as soon as they are
available, copies of any other reports (financial or other)
which the Company shall publish or otherwise make available to
any of its shareholders as such; (ii) as soon as practicable
after the filing thereof, copies of each proxy statement,
Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Report on Form 8-K or other report filed by the Company with
the Commission, or the NASD or any securities exchange; (iii)
as soon as available, copies of any report or communication of
the Company mailed generally to holders of its Common Stock;
and (iv) from time to time such other information concerning
the Company as you may request.
(h) The Company will use its best efforts to list the Stock,
subject to official notice of issuance, on the Nasdaq National
Market concurrently with the effectiveness of the Registration
Statement.
(i) The Company will maintain a transfer agent and registrar
for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the
Company will have its independent auditors perform a limited
quarterly review of its quarterly numbers.
(k) The Company will not, for a period of 180 days following
the date of the Prospectus filed by the Company with the
Securities and Exchange Commission in connection with such
public offering without the prior written consent of XX Xxxxx,
on behalf of the several Underwriters, (1) directly or
indirectly, offer, sell, assign, transfer, encumber, pledge,
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, lend, or otherwise dispose of,
other than by operation of law, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable
for Common Stock (including, without limitation, Common Stock
which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations
promulgated under the Securities Act) or (2) enter into any
swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of
Common Stock whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise, other than the
Company's sale of Common Stock hereunder, the Company's
issuance of stock options under the Company's 1995 Stock
Option Plan and the Company's 2000 Stock Incentive
Compensation Plan, and the Company's issuance of Common Stock
upon the exercise of warrants and stock options which are
presently outstanding and described in the Prospectus.
(l) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of Rules and Regulations, the Company
will furnish a copy thereof to the counsel for the
Underwriters and receive and consider its comments thereon,
and will deliver promptly to the Representatives a signed copy
of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of
the Stock as set forth in the description under "Use of
Proceeds" in the Prospectus, which description complies in all
material respects with the requirements of Item 504 of
Regulation S-K.
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(n) The Company will supply the Representatives with copies of
all correspondence to and from, and all documents issued to
and by, the Commission in connection with the registration of
the Stock under the Securities Act.
(o) Prior to each of the Closing Dates the Company will
furnish to the Representatives, 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.
(p) Prior to each of the Closing Dates the Company will issue
no press release or other communications directly or
indirectly and hold no press conference with respect to the
Company, the financial condition, results of operations,
business, prospects, assets or liabilities of the Company, or
the offering of the Stock, without the Representatives' prior
written consent. For a period of twelve (12) months following
the first Closing Date, the Company will use commercially
reasonable efforts to provide to the Representatives copies of
each press release or other public communications with respect
to the financial condition, results of operations, business,
prospects, assets or liabilities of the Company at least
twenty-four (24) hours prior to the public issuance thereof or
such longer advance period as may reasonably be practicable.
5. Payment of Expenses. (a) The Company will pay (directly or by
reimbursement) all costs, fees and expenses incurred in connection with
expenses incident to the performance of its obligations under this
Agreement and in connection with the transactions contemplated hereby,
including but not limited to (i) all expenses and taxes incident to the
issuance and delivery of the Stock to the Representatives; (ii) all
expenses incident to the registration of the Stock under the Securities
Act; (iii) the costs of preparing stock certificates (including
printing and engraving costs); (iv) all fees and expenses of the
registrar and transfer agent of the Stock; (v) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale
of the Stock to the Underwriters; (vi) fees and expenses of the
Company's counsel and the Company's independent accountants; (vii) all
costs and expenses incurred in connection with the preparation,
printing filing, shipping and distribution of the Registration
Statement, each Preeffective Prospectus and the Prospectus (including
all exhibits and financial statements) and all amendments and
supplements provided for herein, the "Agreement Among Underwriters"
between the Representatives and the Underwriters, the Master Selected
Dealers' Agreement, the Underwriters' Questionnaire and the Blue Sky
memoranda (including related fees and expenses of counsel to the
Underwriters) and this Agreement; (viii) all filing fees, attorneys'
fees and expenses incurred by the Company or the Underwriters in
connection with exemptions from the qualifying or registering (or
obtaining qualification or registration of) all or any part of the
Stock for offer and sale under the Blue Sky or other securities laws of
such jurisdictions as the Representatives may designate; (ix) fees and
expenses of counsel to the Underwriters; (x) all fees and expenses paid
or incurred in connection with filings made with the NASD; and (xi) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section.
(b) In addition to its other obligations under Section 6(a) hereof, the
Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out
of or based upon (i) any statement or omission or any alleged statement
or omission, (ii) any act or failure to act or any alleged act or
failure to act or (iii) any breach or inaccuracy in its representations
and warranties, it will reimburse each Underwriter on a quarterly basis
for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the Company's
obligation to reimburse each Underwriter for such expenses and the
possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. To the
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extent that any such interim reimbursement payment is so held to have
been improper, each Underwriter shall promptly return it to the Company
together with interest, compounded daily, determined on the basis of
the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to timed by - , New York,
New York (the "Prime Rate"). The request for reimbursement will be sent
to the Company. Any such interim reimbursement payments which are not
made to an Underwriter within thirty (30) days of a request for
reimbursement shall bear interest at the Prime Rate from the due date
for such reimbursement. This expense reimbursement agreement will be in
addition to any other liability which the Company may otherwise have.
(c) In addition to its other obligations under Section 6(b) hereof,
each Underwriter severally agrees that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in Section 6(b) hereof
which relates to information furnished to the Company pursuant to
Section 6(b) hereof, it will reimburse the Company (and, to the extent
applicable, each officer, director or controlling person) on a
quarterly basis for all reasonable legal or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of
the Underwriters' obligation to reimburse the Company (and, to the
extent applicable, each officer, director or controlling person) for
such expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have
been improper, the Company (and, to the extent applicable, each
officer, director or controlling person) shall promptly return it to
the Underwriters together with interest, compounded daily, determined
on the basis of the Prime Rate. Any such interim reimbursement payments
which are not made to the Company within thirty (30) days of a request
for reimbursement shall bear interest at the Prime Rate from the date
of such request. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(d) It is agreed that any controversy arising out of the operation of
the interim reimbursement arrangements set forth in paragraph (b) or
(c) of this Section 5, including the amounts of any requested
reimbursement payments and the method of determining such amounts,
shall be settled by arbitration conducted under the provisions of the
Constitution and Rules of the Board of Governors of the New York Stock
Exchange, Inc. or pursuant to the Code of Arbitration Procedure of the
NASD. Any such arbitration must be commenced by service of a written
demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration
tribunal in such demand or notice, then the party responding to said
demand or notice is authorized to do so. Such an arbitration would be
limited to the operation of the interim reimbursement provisions
contained in paragraph (b) or (c) of this Section 5 and would not
resolve the ultimate propriety or enforceability of the obligation to
reimburse expenses which is created by the provisions of Section 6.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of the Securities Act and
the respective officers, directors, partners, employees,
representatives and agents of each of such Underwriter (collectively,
the "Underwriter Indemnified Parties" and, each, an "Underwriter
Indemnified Party"), against any losses, claims, damages, liabilities
or expenses (including the reasonable cost of investigating and
defending against any claims therefor and counsel fees incurred in
connection therewith), joint or several, which may be based upon the
Securities Act, or any other statute or at common law, (i) on the
ground or alleged ground that any Preeffective Prospectus, the
Registration Statement or the Prospectus (or any Preeffective
Prospectus, the Registration Statement or the Prospectus as from time
to time amended or supplemented) includes or allegedly includes an
untrue statement of a material fact or
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omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
statement or omission was made in reliance upon, and in conformity
with, written information furnished to the Company by any Underwriter,
directly or through the Representatives, specifically for use in the
preparation thereof or (ii) for any materially untrue statement or
allegedly materially untrue statement made by the Company in Section 2
of this Agreement. If the Underwriter Indemnified Party fails to notify
the Company of any claims made or actions brought against any
Underwriter Indemnified Party and such failure to notify the Company of
such claims or actions materially prejudices the Company, the Company
shall not be liable with respect to such claims, but failure to notify
the Company of such claim shall not relieve the Company from any
liability which the Company may have to any Underwriter Indemnified
Party otherwise than on account of its indemnity as contained in this
paragraph. Any notification by the Underwriter Indemnified Party of any
claims against the Underwriter Indemnified Party shall be in writing
and occur within a reasonable time after the summons or other first
legal process giving information of the nature of such claim shall have
been served; provided, however, that any delay in giving such notice
shall not relieve the Company of any liability hereunder except to the
extent the Company is actually prejudiced thereby. The Company will be
entitled to participate at its own expense in the defense or, if it so
elects, to assume the defense of any suit brought to enforce any such
liability, but if the Company elects to assume the defense, such
defense shall be conducted by counsel chosen by it and reasonably
acceptable to the Underwriters. In the event the Company elects to
assume the defense of any such suit and retain such counsel, any
Underwriter Indemnified Parties, defendant or defendants in the suit,
may retain additional counsel but shall bear the fees and expenses of
such counsel unless (i) the Company shall have specifically authorized
the retaining of such counsel or (ii) the parties to such suit include
any such Underwriter Indemnified Parties, and the Company and such
Underwriter Indemnified Parties at law or in equity have been advised
by counsel to the Underwriters that one or more legal defenses may be
available to it or them which may not be available to the Company, in
which case the Company shall not be entitled to assume the defense of
such suit notwithstanding its obligation to bear the fees and expenses
of such counsel. This indemnity agreement is not exclusive and will be
in addition to any liability which the Company might otherwise have and
shall not limit any rights or remedies which may otherwise be available
at law or in equity to each Underwriter Indemnified Party.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act
(collectively, the "Company Indemnified Parties") against any losses,
claims, damages, liabilities or expenses (including, unless the
Underwriter or Underwriters elect to assume the defense, the reasonable
cost of investigating and defending against any claims therefor and
counsel fees incurred in connection therewith), joint or several, which
arise out of or are based in whole or in part upon the Securities Act,
the Exchange Act or any other federal, state, local or foreign statute
or regulation, or at common law, on the ground or alleged ground that
any Preeffective Prospectus, the Registration Statement or the
Prospectus (or any Preeffective Prospectus, the Registration Statement
or the Prospectus, as from time to time amended and supplemented)
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances in which
they were made, not misleading, but only insofar as any such statement
or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by such Underwriter, directly or
through the Representatives or their counsel, specifically for use in
the preparation thereof. If the Company fails to notify any Underwriter
Indemnified Party of any claims made or actions brought against the
Company and such failure to notify any Underwriter Indemnified Party of
such
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claims or actions materially prejudices any Underwriter Indemnified
Party, any Underwriter Indemnified Party shall not be liable with
respect to such claims, but failure to notify any Underwriter
Indemnified Party of such claim shall not relieve any Underwriter
Indemnified Party from any liability which any Underwriter Indemnified
Party may have to the Company otherwise than on account of its
indemnity as contained in this paragraph. Any notification by the
Company of any claims against the Company shall be in writing and occur
within a reasonable time after the summons or other first legal process
giving information of the nature of such claim shall have been served;
provided, however, that any delay in giving such notice shall not
relieve any Underwriter Indemnified Party of any liability hereunder
except to the extent any Underwriter Indemnified Party is actually
prejudiced thereby. Such Underwriter shall be entitled to participate
at its own expense in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but, if such
Underwriter elects to assume the defense, such defense shall be
conducted by counsel chosen by it and reasonably acceptable to the
Company. In the event that any Underwriter elects to assume the defense
of any such suit and retains such counsel, the Company Indemnified
Parties and any other Underwriter or Underwriters or controlling person
or persons, defendant or defendants in the suit, may retain additional
counsel but shall bear the fees and expenses of any additional counsel
retained by them, respectively unless (i) the Underwriter shall have
specifically authorized the retaining of such counsel or (ii) the
parties to such suit include the Company and/or any other Underwriter
or Underwriters and the Underwriter at law or in equity has been
advised by counsel to the Company and/or any other Underwriter or
Underwriters that one or more legal defenses may be available to them
which may not be available to the Underwriter, in which case the
Underwriter shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of such
counsel. The Underwriter against whom indemnity may be sought shall not
be liable to indemnify any person for any settlement of any such claim
effected without such Underwriter's consent. This indemnity agreement
is not exclusive and will be in addition to any liability which such
Underwriter might otherwise have and shall not limit any rights or
remedies which may otherwise be available at law or in equity to any
Company Indemnified Party.
(c) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to
herein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Stock. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the
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Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
above. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to above shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating, defending, settling or compromising any
such claim. Notwithstanding the provisions of this subsection (c), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the shares of the Stock
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Underwriters'
obligations to contribute are several in proportion to their respective
underwriting obligations and not joint. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
7. Survival of Indemnities, Representations, Warranties, etc. The
respective indemnities, covenants, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by them
respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Company or any of its officers or directors or any
controlling person, and shall survive delivery of and payment for the
Stock.
8. Conditions of Underwriters' Obligations. The respective obligations of
the several Underwriters hereunder shall be subject to the accuracy, at
and (except as otherwise stated herein) as of the date hereof and at
and as of each of the Closing Dates, of the representations and
warranties made herein by the Company, to compliance at and as of each
of the Closing Dates by the Company with its covenants and agreements
herein contained and other provisions hereof to be satisfied at or
prior to each of the Closing Dates, and to the following additional
conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness thereof shall have been issued and
no proceedings for that purpose shall have been initiated or, to the
knowledge of the Company or the Representatives, shall be threatened by
the Commission, and any request for additional information on the part
of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Representatives. Any filings of the
Prospectus, or any supplement thereto, required pursuant to Rule 424(b)
or Rule 434 of the Rules and Regulations, shall have been made in the
manner and within the time period required by Rule 424(b) and Rule 434
of the Rules and Regulations, as the case may be.
(b) The Representatives shall have been satisfied that there shall not
have occurred any change prior to each of the Closing Dates in the
condition (financial or otherwise), properties, business, management,
prospects, net worth or results of operations of the Company, or any
change in the capital stock, short-term or long-term debt of the
Company, such that (i) the Registration Statement or the Prospectus, or
any amendment or supplement thereto, contains an untrue statement of
fact which, in the opinion of the Representatives, is material, or
omits to state a fact which, in the opinion of the Representatives, is
required to be stated therein or is necessary to make the statements
therein not misleading, or (ii) it is unpracticable in the reasonable
judgment of the Representatives to proceed with the public offering or
purchase the Stock as contemplated hereby.
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(c) The Representatives shall be satisfied that no legal or
governmental action, suit or proceeding affecting the Company which is
material and adverse to the Company or which affects or may affect the
Company's ability to perform its obligations under this Agreement shall
have been instituted or threatened and there shall have occurred no
material adverse development in any existing such action, suit or
proceeding.
(d) At the time of execution of this Agreement, the Representatives
shall have received from PricewaterhouseCoopers LLP, independent
certified public accountants, a letter, dated the date hereof, in form
and substance satisfactory to the Underwriters.
(e) The Representatives shall have received from PricewaterhouseCoopers
LLP, independent certified public accountants, letters, dated each of
the Closing Dates, to the effect that such accountants reaffirm, as of
each of the Closing Dates, and as though made on each of the Closing
Dates, the statements made in the letter furnished by such accountants
pursuant to paragraph (d) of this Section 8.
(f) The Representatives shall have received from Xxxxxx Godward LLP,
counsel for the Company, opinions, dated each of the Closing Dates in
form and substance satisfactory to the Representatives.
(g) The Representatives shall have received from Xxxxxxx, Xxxxxx,
Xxxxxxx & XxXxxx, special patent counsel of the Company, an opinion
dated each of the Closing Dates in form and substance satisfactory to
the Representatives.
(h) The Representatives shall have received from Xxxxx & Wood LLP,
counsel for the Underwriters, their opinions dated each of the Closing
Dates with respect to the incorporation of the Company, the validity of
the Stock, the Registration Statement and the Prospectus and such other
related matters as it may reasonably request, and the Company shall
have furnished to such counsel such documents as they may request for
the purpose of enabling them to pass upon such matters.
(i) The Representatives shall have received a certificates, dated each
of the Closing Dates, of the chief executive officer or the president
and the chief financial or accounting officer of the Company to the
effect that:
(i) No stop order suspending the effectiveness
of the Registration Statement has been
issued, and, to the best of the knowledge of
the signers, no proceedings for that purpose
have been instituted or are pending or
contemplated under the Securities Act;
(ii) Neither any Preeffective Prospectus, as of
its date, nor the Registration Statement nor
the Prospectus, nor any amendment or
supplement thereto, as of the time when the
Registration Statement became effective and
at all times subsequent thereto up to the
delivery of such certificate, included any
untrue statement of a material fact or
omitted to state any material fact required
to be stated therein or necessary to make
the statements therein, in light of the
circumstances under which they were made,
not misleading;
(iii) Subsequent to the respective dates as of
which information is given in the
Registration Statement and the Prospectus,
and except as set forth or contemplated in
the Prospectus, the Company has not incurred
any material liabilities or obligations,
direct or contingent, nor entered into any
material transactions not in the ordinary
course of business and there
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has not been any material adverse change in
the condition (financial or otherwise),
properties, business, management, prospects,
net worth or results of operations of the
Company, or any change in the capital stock,
short-term or long-term debt of the Company;
(iv) The representations and warranties of the
Company in this Agreement are true and
correct at and as of each of the Closing
Dates, and the Company has complied with all
the agreements and performed or satisfied
all the conditions on its part to be
performed or satisfied at or prior to the
Closing Dates; and
(v) Since the respective dates as of which
information is given in the Registration
Statement and the Prospectus, and except as
disclosed in or contemplated by the
Prospectus, (i) there has not been any
material adverse change or a development
involving a material adverse change in the
condition (financial or otherwise),
properties, business, management, prospects,
net worth or results of operations of the
Company; (ii) the business and operations
conducted by the Company have not sustained
a loss by strike, fire, flood, accident or
other calamity (whether or not insured) of
such a character as to interfere materially
with the conduct of the business and
operations of the Company; (iii) no legal or
governmental action, suit or proceeding is
pending or threatened against the Company
which is material to the Company, whether or
not arising from transactions in the
ordinary course of business, or which may
materially and adversely affect the
transactions contemplated by this Agreement;
(iv) since such dates and except as so
disclosed, the Company has not incurred any
material liability or obligation, direct,
contingent or indirect, made any change in
its capital stock (except pursuant to its
stock plans), made any material change in
its short-term or funded debt or repurchased
or otherwise acquired any of the Company's
capital stock; and (v) the Company has not
declared or paid any dividend, or made any
other distribution, upon its outstanding
capital stock payable to stockholders of
record on a date prior to the Closing Date.
(j) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of each of the Closing Dates,
of the representations and warranties made herein by it and as to
compliance at and as of each of the Closing Dates by it with its
covenants and agreements herein contained and other provisions hereof
to be satisfied at or prior to each of the Closing Dates, and as to
satisfaction of the other conditions to the obligations of the
Underwriters hereunder.
(k) XX Xxxxx shall have received the written agreements, substantially
in the form of Exhibit I hereto, of the officers, directors and holders
of Common Stock listed in Schedule C that each will not offer, sell,
assign, transfer, encumber, contract to sell, grant an option to
purchase or otherwise dispose of, any shares of Common Stock
(including, without limitation, Common Stock which may be deemed to be
beneficially owned by such officer, director or holder in accordance
with the Rules and Regulations) during the 180 days following the date
of the final Prospectus.
(l) The Nasdaq National Market shall have approved the stock for
listing, subject only to official notice of issuance.
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All opinions, certificates, letters and other documents will
be in compliance with the provisions hereunder only if they are
satisfactory in form and substance to the Representatives acting
reasonably. The Company will furnish to the Representatives conformed
copies of such opinions, certificates, letters and other documents as
the Representatives shall reasonably request. If any of the conditions
hereinabove provided for in this Section shall not have been satisfied
when and as required by this Agreement, this Agreement may be
terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to each of the
Closing Dates, but XX Xxxxx, on behalf of the Representatives, shall be
entitled to waive any of such conditions.
9. Effective Date. This Agreement shall become effective immediately as to
Sections 5, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 17 and, as to all other
provisions, at 11:00 a.m. New York City time on the first full business
day following the effectiveness of the Registration Statement or at
such earlier time after the Registration Statement becomes effective as
the Representatives may determine on and by notice to the Company or by
release of any of the Stock for sale to the public. For the purposes of
this Section 9, the Stock shall be deemed to have been so released upon
the release for publication of any newspaper advertisement relating to
the Stock or upon the release by you of telegrams (i) advising
Underwriters that the shares of Stock are released for public offering
or (ii) offering the Stock for sale to securities dealers, whichever
may occur first.
10. Termination. This Agreement (except for the provisions of Section 5)
may be terminated by the Company at any time before it becomes
effective in accordance with Section 9 by notice to the Representatives
and may be terminated by the Representatives at any time before it
becomes effective in accordance with Section 9 by notice to the
Company. In the event of any termination of this Agreement under this
or any other provision of this Agreement, there shall be no liability
of any party to this Agreement to any other party, other than as
provided in Sections 5, 6 and 11 and other than as provided in Section
12 as to the liability of defaulting Underwriters.
This Agreement may be terminated after it becomes effective by the
Representatives by notice to the Company (i) if at or prior to the
First Closing Date trading in securities on any of the New York Stock
Exchange, American Stock Exchange or Nasdaq National Market System
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange or market, or a banking moratorium
shall have been declared by New York or United States authorities; (ii)
trading of any securities of the Company shall have been suspended on
any exchange or in any over-the-counter market; (iii) if at or prior to
the First Closing Date there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign
power or of any other insurrection or armed conflict involving the
United States or (B) any change in financial markets or any calamity or
crisis which, in the judgment of the Representatives, makes it
impractical or inadvisable to offer or sell the Stock on the terms
contemplated by the Prospectus; (iv) if there shall have been any
development or prospective development involving particularly the
business or properties or securities of the Company or the transactions
contemplated by this Agreement, which, in the judgment of the
Representatives makes it impracticable or inadvisable to offer or
deliver the Stock on the terms contemplated by the Prospectus; (v) if
there shall be any litigation or proceeding, pending or threatened,
which, in the judgment of the Representatives, makes it impracticable
or inadvisable to offer or deliver the Stock on the terms contemplated
by the Prospectus; or (vi) if there shall have occurred any of the
events specified in the immediately preceding clauses (i) - (v)
together with any other such event that makes it, in the judgment of
the Representatives, impractical or inadvisable to offer or deliver the
Stock on the terms contemplated by the Prospectus.
11. Reimbursement of Underwriters. Notwithstanding any other provisions
hereof, if this Agreement shall not become effective by reason of any
election of the Company pursuant to the first paragraph of Section 10
or shall be terminated by the Representatives under Section 8 or
Section 10, the Company will bear and pay the expenses specified in
Section 5 hereof and, in addition to
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its obligations pursuant to Section 6 hereof, the Company will
reimburse the reasonable out-of-pocket expenses of the several
Underwriters (including reasonable fees and disbursements of counsel
for the Underwriters) incurred in connection with this Agreement and
the proposed purchase of the Stock, and promptly upon demand the
Company will pay such amounts to the Representatives.
12. Substitution of Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock
hereunder and the aggregate number of shares which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not
exceed ten percent (10%) of the total number of shares underwritten,
the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the shares which
such defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or
defaults occur is more than ten percent (10%) of the total number of
shares underwritten and arrangements satisfactory to the
Representatives and the Company for the purchase of such shares by
other persons are not made within forty-eight (48) hours after such
default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a
defaulting Underwriter or Underwriters as provided in this Section 12,
(i) the Company shall have the right to postpone the Closing Dates for
a period of not more than five (5) full business days in order that the
Company may effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents
or arrangements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of
shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained
shall relieve any defaulting Underwriter of its liability to the
Company or the other Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section
12 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or
reimbursed pursuant to Section 5 and except for the provisions of
Section 6.
13. Notices. All communications hereunder shall be in writing and, if sent
to the Underwriters shall be mailed, delivered or telegraphed and
confirmed to you, as their Representatives c/o XX Xxxxx Securities
Corporation at Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 except that
notices given to an Underwriter pursuant to Section 6 hereof shall be
sent to such Underwriter at the address furnished by the
Representatives or, if sent to the Company, shall be mailed, delivered
or telegraphed and confirmed c/o Allos Therapeutics, Inc., 0000 Xxxxx
Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
14. Successors. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person
other than the persons mentioned in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants,
agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who
control any Underwriter or Underwriters within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, and the
indemnities of the several Underwriters shall also be for the benefit
of each director of the Company, each of its officers who has signed
the Registration Statement and
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the person or persons, if any, who control the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Authority of the Representatives. In connection with this Agreement,
you will act for and on behalf of the several Underwriters, and any
action taken under this Agreement by XX Xxxxx, Prudential Securities
Incorporated and U.S. Bancorp Xxxxx Xxxxxxx, Inc. as Representatives,
will be binding on all the Underwriters.
17. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for
any reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
18. General. This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in
this Agreement are for the convenience of the parties only and will not
affect the construction or interpretation of this Agreement. This
Agreement may be amended or modified, and the observance of any term of
this Agreement may be waived, only by a writing signed by the Company
and the Representatives.
19. Counterparts. This Agreement may be signed in two (2) or more
counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
ALLOS THERAPEUTICS, INC.
By:
---------------------------------------
Name:
Title:
Accepted and delivered in
New York as of the date
first above written.
XX XXXXX SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
U.S. BANCORP XXXXX XXXXXXX, INC.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: XX XXXXX SECURITIES CORPORATION
By:
-----------------------------------
Xxxx X. Xxxxxx
Managing Director - Syndicate
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SCHEDULE A
=========================================================================================
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
=========================================================================================
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
U.S. Bancorp Xxxxx Xxxxxxx, Inc.
=========================================================================================
----------- -----------
Total
=========== ===========
=========================================================================================
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SCHEDULE B
Number of Number of
Firm Optional
Shares to Shares to
be Sold be Sold
Allos Therapeutics, Inc.
------------------------ -----------------------
Total
---------- ----------
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SCHEDULE C
[Persons subject to Lock-up Agreement]
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EXHIBIT I
[Form of Lock-Up Agreement]
, 2000
------------
XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
As representative of the
several Underwriters
Re: Allos Therapeutics, Inc.
Dear Sirs:
In order to induce XX Xxxxx Securities Corporation ("XX Xxxxx"),
Prudential Securities Incorporated and U.S. Bancorp Xxxxx Xxxxxxx Inc. as
representatives of the several underwriters (collectively, the "Underwriters")
to enter into a certain underwriting agreement with Allos Therapeutics, Inc., a
Delaware corporation (the "Company") with respect to the public offering of
shares of the Company's Common Stock, par value $0.001 per share ("Common
Stock"), the undersigned hereby agrees that for a period of 180 days following
the date of the final prospectus filed by the Company with the Securities and
Exchange Commission in connection with such public offering, the undersigned
will not, without the prior written consent of XX Xxxxx, on behalf of the
several Underwriters, (1) directly or indirectly, offer, sell, assign, transfer,
encumber, pledge, 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, lend, or otherwise dispose of, other than by operation of law, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (including, without limitation, Common Stock which
may be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations promulgated under the Securities Act of 1933, as the same
may be amended or supplemented from time to time (such shares, the "Beneficially
Owned Shares")) or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of Common Stock whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
Anything contained herein to the contrary notwithstanding, any person
to whom shares of Common Stock or Beneficially Owned Shares are transferred from
the undersigned shall be bound by the terms of this Agreement.
In addition, the undersigned hereby waives, from the date hereof until
the expiration of the 180 day period following the date of the Company's final
Prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of any shares of Common Stock that are registered
in the name of the undersigned or that are Beneficially Owned Shares.
In order to enable the aforesaid covenants to be enforced, the
undersigned hereby consents to the placing of legends and/or stop-transfer
orders with the transfer agent of the Common Stock with respect to any shares of
Common Stock or Beneficially Owned Shares.
Whether or not the public offering actually occurs depends on a number
of factors, including market conditions. Any public offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
-------------------------------------
(Name)
-------------------------------------
(Address)
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