OXiGENE, INC.
1,000,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
November ___, 1996
X. XXXXXXXX XX
XXXXXXXX CAPITAL INC.
As Representatives of the several Underwriters
c/o X. Xxxxxxxx AB
Xxxxxx Xxxxxx Torg 00
X-000 00
Xxxxxxxxx, Xxxxxx
Dear Sirs:
OXiGENE, Inc., a Delaware corporation (the "Company"), hereby confirms
its agreement with the several underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth
below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the several Underwriters an aggregate
of 1,000,000 shares (the "Firm Securities") of the Company's Common Stock, par
value US$0.01 per share ("Common Stock"). The Company also proposes to issue
and sell to the several
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(1) Plus an option to purchase from OXiGENE, Inc. up to 150,000 additional
shares to cover over-allotments.
Underwriters not more than 150,000 additional shares of Common Stock if
requested by the Representatives as provided in Section 3 of this Agreement.
Any and all shares of Common Stock to be purchased by the Underwriters pursuant
to such option are referred to herein as the "Option Securities," and the Firm
Securities and any Option Securities are collectively referred to herein as the
"Securities."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the several Underwriters
that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended ("the Act"). A registration
statement on such form (File No. 333-12867) with respect to the Securities,
including a prospectus subject to completion, has been filed by the Company
with the Securities and Exchange Commission (the "Commission") under the Act,
and one or more amendments to such registration statement may have been so
filed. After the execution of this Agreement, the Company will file with the
Commission either (i) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the Act
either (A) if the Company relies on Rule 434 under the Act, a Term Sheet (as
hereinafter defined) relating to the Securities, that shall identify the
Preliminary Prospectus (as hereinafter defined) that it supplements, and, if
required to be filed pursuant to Rules 434 (c)(2) and 424(b), an Integrated
Prospectus (as hereinafter defined), in either case, containing such
information as is required or permitted by Rules 434, 430A and 424 (b) under
the Act or (B) if the Company does not rely on Rule 434 under the Act, a
prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are required by
Rule 430A under the Act or permitted by Rule 424(b) under the Act, in the case
of either clause (i)(A) or (i)(B) of this sentence as have been provided to and
approved by the Representatives prior to the execution of this Agreement, or
(ii) if such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act, an amendment to such
registration statement, including a form of prospectus, a copy of which
amendment has been furnished to and approved by the Representatives prior to
the execution of this Agreement. The Company may also file a related
registration statement with the Commission pursuant to Rule 462(b) under the
Act for the purpose of registering certain additional Securities, which
registration shall be effective upon filing with the Commission. As used in
this Agreement, the term "Original Registration Statement" means the
registration statement initially filed relating to the Securities, as amended
at the time when it was or is declared effective, including (i) all financial
schedules and exhibits thereto, (ii) all documents incorporated by reference
therein filed under the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") and (iii) any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined) or,
if required to be filed pursuant to Rules 434(c)(2) and 424(b), in the
Integrated Prospectus; the term "Rule 462(b) Registration Statement" means any
registration statement filed with the Commission pursuant to Rule 462(b) under
the Act (including the Original Registration Statement and any Preliminary
Prospectus or
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7072140.05 October 29, 1996
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion, filed
with such registration statement or any amendment thereto (including the
Prospectus subject to completion, if any, included in the Registration
Statement or any amendment thereto at the time it was or is declared
effective), including all documents incorporated by reference therein filed
under the Exchange Act; the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act,
the Term Sheet relating to the Securities that is first filed
pursuant to Rule 424(b)(7) under the Act, together with the
Preliminary Prospectus identified therein that such Term
Sheet supplements;
(B) if the Company does not rely on Rule 434 under
the Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under
the Act and if no prospectus is required to be filed pursuant
to Rule 424(b) under the Act, the prospectus included in the
Registration Statement, including, in the case of the
immediately foregoing clause (A), (B) or (C) of this
sentence, all documents incorporated by reference therein
filed under the Exchange Act.
The term "Integrated Prospectus" means a prospectus first filed with the
Commission pursuant to Rules 434(c)(2) and 424(b) under the Act; and the term
"Term Sheet" means any abbreviated Term Sheet that satisfies the requirements
of Rule 434 under the Act. Any reference in this Agreement to an "amendment or
supplement" to any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or an "amendment" to any registration statement (including the
Registration Statement) shall be deemed to include any document incorporated by
reference therein that is filed with the Commission under the Exchange Act
after the date of such Preliminary Prospectus, Prospectus, any Integrated
Prospectus, or registration statement, as the case may be; any reference herein
to the "date" of a Prospectus that includes a Term Sheet shall mean the date of
such Term Sheet. For purposes of the preceding sentence, any reference to the
"effective date" of an amendment to a registration statement shall, if such
amendment is effected by means of the filing with the Commission under the
Exchange Act of a document incorporated by reference in such registration
statement, be deemed to refer to the date on which such document was filed with
the Commission. The term "Swedish Prospectus" means any prospectus used in
connection with the sale of the International Firm Securities (as defined in
Section 3 hereof) in Sweden and other countries outside the Unites States of
America, including the Prospectus, the Preliminary Prospectus, any Integrated
Prospectus and any documents incorporated by reference therein.
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7072140.05 October 29, 1996
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus. When any
Preliminary Prospectus and any amendment or supplement thereto was filed with
the Commission, it (i) contained all statements required to be stated therein
in accordance with, and complied in all material respects with the requirements
of, the Act, the Exchange Act and the respective rules and regulations of the
Commission thereunder, and (ii) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. When the Registration Statement or any amendment thereto
was or is declared effective, it (i) contained or will contain all statements
required to be stated therein in accordance with, and complied or will comply
in all material respects with the requirements of the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder and (ii) did
not or will not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading. When the Prospectus or any Term Sheet that is a part thereof or any
Integrated Prospectus or any amendment or supplement to the Prospectus is filed
with the Commission pursuant to Rule 424(b) (or, if the Prospectus or part
thereof or such amendment or supplement is not required to be so filed, when
the Registration Statement or the amendment thereto containing such amendment
or supplement to the Prospectus was or is declared effective), on the date when
the Prospectus is otherwise amended or supplemented and on the Closing Date and
any Over-Allotment Closing Date (both as hereinafter defined), each of the
Prospectus and, if required to be filed pursuant to Rule 434(c)(2) and 424(b)
under the Act, the Integrated Prospectus as amended or supplemented at any such
time, (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material
respects with the requirements of the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder and (ii) did not or will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective, then (i)
the Company has filed a Rule 462(b) Registration Statement in compliance with
and that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act or the Commission has received payment of such
filing fee.
(d) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not
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7072140.05 October 29, 1996
amount to a material liability or disability to the Company and its
subsidiaries, taken as a whole.
(e) The Company and each of its subsidiaries have full power
(corporate or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement, each of
the Prospectus, the Swedish Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus); and the Company has full power (corporate
or other) to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it.
(f) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, neither the Company
nor any such subsidiary owns any shares of stock or any other equity securities
of any corporation or has any equity interest in any firm, partnership,
association or other entity, except as described in or contemplated by the
Prospectus and any Integrated Prospectus (or, if the Prospectus or any
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(g) The Company has an authorized, issued and outstanding
capitalization as set forth in each of the Prospectus, the Swedish Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus). All the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. The
Firm Securities and the Option Securities have been duly authorized and at the
Firm Closing Date or the related Option Closing Date (as the case may be),
after payment therefor in accordance herewith, will be validly issued, fully
paid and nonassessable. No holders of outstanding shares of capital stock of
the Company are entitled as such to any preemptive or other rights to subscribe
for any of the Securities, and no holder of securities of the Company has any
right which has not been fully exercised or waived to require the Company to
register the offer or sale of any securities owned by such holder under the Act
in the public offering contemplated by this Agreement.
(h) The capital stock of the Company conforms to the
description thereof contained in each of the Prospectus, the Swedish Prospectus
and any Integrated Prospectus (or if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(i) Except as disclosed in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (i) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such subsidiary, (ii) warrants, rights or options to subscribe
for or purchase from the Company or any such subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or
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7072140.05 October 29, 1996
any such subsidiary to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants, rights or
options.
(j) The consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included in the Registration
Statement, each of the Prospectus, the Swedish Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are
not in existence, the most recent Preliminary Prospectus) fairly present the
financial position of the Company and its consolidated subsidiaries and the
results of changes in operation and financial condition as of the dates therein
specified. Such financial statements and schedules have been prepared in
accordance with generally accepted accounting principles in the United States
of America applied on a consistent basis throughout the respective periods
involved except as otherwise noted therein. The selected financial data set
forth under the caption "Selected Financial Information" in the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) and in
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1995 fairly present, on the basis stated in each of the Prospectus and any
Integrated Prospectus (or such Preliminary Prospectus) and such Annual Report,
the information included therein.
(k) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered its
respective reports with respect to the audited consolidated financial
statements and schedules included in the Registration Statement, each of the
Prospectus, the Swedish Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) for each of the Company and its
consolidated subsidiaries, are independent public accountants with respect to
such entities as required by the Act, the Exchange Act and the related
published rules and regulations thereunder.
(l) The execution and delivery of this Agreement have been
duly authorized by the Company and this Agreement has been duly executed and
delivered by the Company.
(m) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the property of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement, the Prospectus, the Swedish Prospectus
or any Integrated Prospectus and are not described therein (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus), and, to the Company's knowledge, no such
proceedings that are required to be described in the Registration Statement,
the Prospectus, the Swedish Prospectus or any Integrated Prospectus and are not
described therein (or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus) have been
threatened against the Company or any of its subsidiaries with respect to any
of their respective properties; and no contract or other document is required
to be described in the Registration Statement, the Prospectus, the
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7072140.05 October 29, 1996
Swedish Prospectus or any Integrated Prospectus or to be filed as an exhibit to
the Registration Statement that is not described therein (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) or filed as required.
(n) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, if the registration statement filed with
respect to the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or conflict with or result in a
material breach or violation of any of the terms and provisions of, or
constitute a material default under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party.
(o) Subsequent to the respective dates as of which
information is given in Registration Statement, in each of the Prospectus, the
Swedish Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated prospectus are not in existence, the most recent
Preliminary Prospectus), the Company and its subsidiaries have not sustained
any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or
governmental proceeding and there has not been any material adverse change, or
any development which the Company and its subsidiaries reasonably believe could
result in a prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(p) The Company has not, directly or indirectly, (i) taken
any action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Securities or (ii) since the filing of the Registration Statement (A) sold,
bid for, purchased, or paid anyone any compensation for soliciting purchases of
the Common Stock (including the Securities), any securities convertible into,
exchangeable or exercisable for, shares of Common Stock or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
(q) Except as may be otherwise described in the Prospectus
and any Integrated Prospectus (or if the Prospectus and any Integrated
Prospectus are not in
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7072140.05 October 29, 1996
existence, the most recent Preliminary Prospectus), (i) the Company and its
subsidiaries, taken as a whole, have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction not
in the ordinary course of business; (ii) neither the Company nor any of its
subsidiaries has purchased any of its respective outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock and (iii) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company, except in each
case as described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(r) The Company and its subsidiaries do not own any real
property. Except as may be otherwise described in or contemplated by the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), the Company and its subsidiaries have indefeasible title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, taken as a whole, in each case free and clear of
any liens, encumbrance, security interests, equities, claims and other defects,
except such as do not materially and adversely affect the value of such
property and do not interfere with the use made or proposed to be made of such
property by the Company, and the Company and its subsidiaries hold valid,
subsisting and enforceable leasehold interests in all items of leased real and
personal property, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company.
(s) Except as may be otherwise described in or contemplated
by the Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) no labor dispute with the employees of the Company or
any subsidiary exists or is threatened that could result in a material adverse
change in the condition (financial or otherwise), business prospects, net
worth, or results of operations of the Company and its subsidiaries, taken as a
whole.
(t) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and proprietary or
other confidential information currently employed by it in connection with its
business, and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of any third party
with respect to any of the foregoing. In connection with the filing of its
patent applications, the Company and its subsidiaries conducted reasonable
investigations of the published literature and patent references relating to
the inventions claimed in such applications. There are no issued, enforceable
United States or foreign patents known to the Company or its subsidiaries on
the basis of a reasonable monitoring or patents issued in the United States
which the Company or its subsidiaries believes to be infringed by their present
activities or which would preclude the pursuit of its business as described in
each of the Prospectus, the Swedish Prospectus and any Integrated Prospectus
(or if the Prospectus is not in existence, the most recent Preliminary
Prospectus), except as described in or contemplated
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7072140.05 October 29, 1996
by the Prospectus and any Integrated Prospectus (or, if the Prospectus and any
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(u) The Company and its subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all its
intellectual property in all material aspects.
(v) The Company and its subsidiaries carry insurance in such
amounts and covering such risks as are adequate in the reasonable judgment of
the Company and its subsidiaries; the Company and its subsidiaries have not
been refused any insurance coverage sought or applied for; the Company and its
subsidiaries have no 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 insurers of recognized financial responsibility as may be
necessary to continue its business at a cost that would not materially and
adversely affect the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company, except as described in or
contemplated by the Prospectus and any required Integrated Prospectus (or, if
the Prospectus and any Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus); and the term key-man insurance on the life of
Xx. Xxxxxx X. Xxxx in the amount of $1,000,000 which policy names the Company
as the sole beneficiary thereof is in full force and effect and all premiums
due thereunder have been paid to date.
(w) Each of the Company and its subsidiaries has obtained all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with the appropriate
federal, state or foreign regulatory authorities, including the U.S. Food and
Drug Administration and the Swedish Medical Drug Agency, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets (including trademarks, servicemarks and trade
names) and to conduct its business as currently conducted or proposed to be
conducted by the Company and the Company has not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit.
(x) The Company will conduct its operations in a manner that
will not subject it to registration as an "investment company" as defined in
Section 3 (a) of the Investment Company Act of 1940, as amended, and the
Company is not now and, as a result of the transaction contemplated hereby,
will not become an investment company subject to registration under such Act.
(y) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof and has paid all taxes required to be paid by it and any other
assessment, fine or penalty used against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith.
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7072140.05 October 29, 1996
(z) Except as may be otherwise described in the Prospectus
and any Integrated Prospectus (or, if the Prospectus and any Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), the
Company and its subsidiaries are not in violation of any federal or state law
or regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials and the Company and
its subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety and
health and environmental laws and regulations to conduct their businesses, and
the Company and its subsidiaries are in compliance with all terms and
conditions of any such permit, license or approval.
(aa) Each certificate signed by any officer of the Company
and delivered to the Representatives or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
(ab) Except as may otherwise be described in the Prospectus
and any Integrated Prospectus (or if the Prospectus and any Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus),
neither the Company nor any of its subsidiaries maintain, sponsor or contribute
to any program or arrangement that is an "employee pension benefit plan," an
"employee welfare benefit plan," or a "multiemployer plan" as such terms are
defined in Sections 3(2), 3(1) and 3(37), respectively, of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") ("ERISA Plans").
Neither the Company nor any of its subsidiaries maintain or contribute, now or
at any time previously, to a defined benefit plan, as defined in Section 3(35)
of ERISA. No ERISA Plan (or any trust created thereunder) has engaged in a
"prohibited transaction" within the meaning of Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), which could
subject the Company or any of its subsidiaries, to any tax penalty on
prohibited transactions and which has not adequately been corrected. Each ERISA
Plan is in compliance with all material reporting, disclosure and other
requirements of the Code and ERISA as they relate to any such ERISA Plan.
Determination letters have been received from the Internal Revenue Service with
respect to each ERISA Plan which is intended to comply with Code Section
401(a), stating that such ERISA Plan and the attendant trust are qualified
thereunder. The Company has never completely or partially withdrawn from a
"multiemployer plan."
(ac) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; access to assets is
permitted only in accordance with management's general or specific
authorization; and (iii) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
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7072140.05 October 29, 1996
(ad) Except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus): (i) there are no outstanding loans, advances or
guaranties of indebtedness by the Company which are required to be described in
each of the Prospectus, the Swedish Prospectus and any Integrated Prospectus to
or for the benefit of any of its "affiliates," as such term is defined in Rule
405 under the Act, or any of the officers or directors of the Company, or any
of the members of the "immediate family" (as that term is defined in item
404(a) of Regulation S-K under the Act) of any of such officers or directors,
or of any of the "associates" (as that term is defined in Rule 405 under the
Act) of any of such officers, directors or family members; and (ii) there are
no material agreements or understandings between the Company or any of its
subsidiaries and any of the members of the immediate family of any of the
officers or directors of the Company or any of its subsidiaries, or any of the
associates of any of such officers, directors or family members.
(ae) The clinical trials and the human and animal studies
conducted by or on behalf of the Company and its subsidiaries or in which the
Company and its subsidiaries have participated that are described in each of
the Prospectus, the Swedish Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) were and, if still pending, are being
conducted in accordance with standard medical and scientific research
procedures, and the Company has operated and currently is in compliance in all
material respects with all applicable federal, state, local and foreign laws
and regulations, including without limitation, all United States Food and Drug
Administration and Swedish Medical Drug Agency rules, regulations and policies.
(af) All offers and sales of the Company's capital stock
prior to the date hereof, including the offer and sale of an aggregate of
1,666,700 shares of Common Stock in connection with the Company's 1995 private
placement were at all relevant times exempt from the registration requirements
of the Act, and were the subject of an available exemption from the
registration requirements of all applicable state securities or blue sky laws;
and the Information Memorandum, dated as of June, 1995, delivered to potential
investors in connection with the such private placement, did not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ag) The Company has not received and is not aware of any
communication (written or oral) relating to the termination or modification of
any of the agreements described or referred to in each of the Prospectus, the
Swedish Prospectus and any Integrated Prospectus, (or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), the termination or modification of which could result
in a material adverse change in the condition (financial or otherwise),
business prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole.
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7072140.05 October 29, 1996
(ah) The minute books of the Company have been made available
to the Underwriters and contain a complete summary of all meetings and actions
of the directors and stockholders of the Company since the time of its
incorporation, and reflect all transactions referred to in such minutes
accurately in all material respects.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company, at a purchase price of $____ per share,
the number of Firm Securities set forth opposite the name of such Underwriter
in Schedule 1 hereto under the heading "U.S. Offering" (the "U.S. Firm
Securities"). With respect to the U.S. Firm Securities, one or more
certificates in definitive form for the U.S. Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the U.S. Firm
Closing Date, shall be delivered by or on behalf of the Company to the
Representatives through the facilities of Depository Trust Company ("DTC") for
the respective accounts of the Underwriters, against payment by or on behalf of
the Underwriters of the purchase price therefor by wire transfer of U.S.
dollars in same-day funds (the "U.S. Wired Funds") to the account of the
Company designated by the Company and in a written notice to the
Representatives three days prior to such transfer. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging by the Representatives at least twenty-four hours prior to the time
of delivery with respect thereto at the office of DTC or its designated
custodian (the "Designated Office") [or Company's transfer agent or registrar]
at the offices in __________________. Such delivery of the U.S. Firm Securities
shall be made at the offices of _________________________________ at 9:00 A.M.,
New York time, on _____, 1996, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, such time and date of delivery against
payment being herein referred to as the "U.S. Firm Closing Date."
(b) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company, at a purchase price of [$____/SEK] per
share, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule 1 hereto under the heading "International Offering"
(the "International Firm Securities"). With respect to the International Firm
Securities, one or more certificates in definitive form for the International
Firm Securities that the several Underwriters have agreed to purchase
hereunder, and in such denomination or denominations and registered in such
name or names as the Representatives request upon notice to the Company at
least 48 hours prior to the International Firm Closing Date, shall be delivered
by or on behalf of the
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7072140.05 October 29, 1996
Company to the Representatives through the facilities of Vardepapperscentralen
("VPC") for the respective accounts of the Underwriters, against payment by or
on behalf of the Underwriters of the purchase price therefor by wire transfer
of [U.S. dollars/SEK] in same- day funds (the "International Wired Funds") to
the account of the Company designated by the Company and in a written notice to
the Representatives three days prior to such transfer. The Company will cause
the certificates representing the Shares to be made available for checking and
packaging by the Representatives at least twenty-four hours prior to the time
of delivery with respect thereto at the office of VPC or its designated
custodian (the "Designated Office") [or Company's transfer agent or registrar]
at the offices in __________________. Such delivery of the International Firm
Securities shall be made at the offices of _________________________________ at
3:00 P.M., Stockholm time, on _____, 1996, or at such other place, time or date
as the Representatives and the Company may agree upon or as the Representatives
may determine pursuant to Section 9 hereof, such time and date of delivery
against payment being herein referred to as the "International Firm Closing
Date", and together with the U.S. Firm Closing Date, the "Firm Closing Date."
The U.S. Wired Funds and the International Wired Funds are sometimes
collectively referred to herein as the "Wired Funds."
(c) The Company hereby acknowledges that the wire transfer by
or on behalf of the Underwriters of the purchase price for any Securities does
not constitute closing of a purchase and sale of the Securities. Only execution
and delivery of a receipt for the Securities by the Underwriters indicates
completion of the closing of a purchase of the Securities from the Company.
Furthermore, in the event that the Underwriters wire funds to the Company prior
to the completion of the closing of a purchase of the Securities, the Company
hereby acknowledges that until the Underwriters execute and deliver a receipt
for the Securities, by facsimile or otherwise, the Company will not be entitled
to the Wired Funds and shall return the Wired Funds to the Underwriters as soon
as practicable (by wire transfer of same-day funds) upon demand. In the event
that the closing of a purchase of the Securities is not completed and the Wired
Funds are not returned by the Company, the Company agrees to pay to the
Underwriters in respect of each day the Wired Funds are not returned by it, in
same-day funds, interest on the amount of such Wired Funds in an amount
representing the Underwriters' cost of financing as reasonably determined by
the Representatives.
(d) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as
contemplated by each of the Prospectus, the Swedish Prospectus and any
Integrated Prospectus, the Company hereby grants to the several Underwriters an
option to purchase, severally and not jointly, the Option Securities. The
purchase price to be paid for any Option Securities shall be the same price per
share as the price per share for the Firm Securities set forth above in
paragraph (a) of this Section 3. The option granted hereby may be exercised as
to all or any part of the Option Securities from time to time within thirty
days after the date of the Prospectus (or, if such 30th 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). The Underwriters shall not be under any
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7072140.05 October 29, 1996
obligation to purchase any of the Option Securities prior to the exercise of
such option. The Representatives may from time to time exercise the option
granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company setting forth the aggregate number of Option Securities
as to which the several Underwriters are then exercising the option and the
date and time for delivery of and payment for such Option Securities. Any such
date of delivery shall be determined by the Representatives but shall not be
earlier than two business days or later than three business days after such
exercise of the option and, in any event, shall not be earlier than the Firm
Closing Date. The time and date set forth in such notice, or such other time on
such other date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, is herein called
the "Option Closing Date" with respect to such Option Securities. Upon exercise
of the option as provided herein, the Company shall become obligated to sell to
each of the several Underwriters, and, subject to the terms and conditions
herein set forth, each of the Underwriters (severally and not jointly) shall
become obligated to purchase from the Company, the same percentage of the total
number of the Option Securities as to which the several Underwriters are then
exercising the option as such Underwriter is obligated to purchase of the
aggregate number of Firm Securities, as adjusted by the Representatives in such
manner as they deem advisable to avoid fractional shares. If the option is
exercised as to all or any portion of the Option Securities, one or more
certificates in definitive form for such Option Securities, and payment
therefor, shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this Section
3, except that reference therein to the Firm Securities and the Firm Closing
Date shall be deemed, for purposes of this paragraph (b), to refer to such
Option Securities and Option Closing Date, respectively.
(e) It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations
hereunder.
4. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof, any Integrated Prospectus and any amendment or
supplement thereto with the Commission in the manner and within the
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7072140.05 October 29, 1996
time period required by Rules 434 and 424(b) under the Act. During any time
when a prospectus relating to the Securities is required to be delivered under
the Act, the Company (i) will comply with all requirements imposed upon it by
the Act, the Exchange Act and the respective rules and regulations of the
Commission thereunder to the extent necessary to permit the continuance of
sales of or dealings in the Securities in accordance with the provisions hereof
and each of the Prospectus and any Integrated Prospectus, as then amended or
supplemented, and (ii) will not file with the Commission the Prospectus, Term
Sheet or any Integrated Prospectus or the amendment referred to in the third
sentence of Section 2(a)(i) hereof, any amendment or supplement to such
Prospectus, Term Sheet or any Integrated Prospectus or any amendment to the
Registration Statement (including amendments to documents incorporated by
reference therein) or any Rule 462(b) Registration Statement of which the
Representatives shall not previously have been advised and furnished with a
copy for a reasonable period of time prior to the proposed filing and as to
which filing the Representatives shall not have given its consent. The Company
will prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly upon request by the Representatives or
counsel for the Underwriters, any amendments to the Registration Statement
(including amendments to documents incorporated by reference therein) or any
Rule 462(b) Registration Statement amendments or supplements to the Prospectus
and any Integrated Prospectus that may be necessary or advisable in connection
with the distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration Statement
to be declared effective by the Commission as promptly as possible. The Company
will advise the Representatives, promptly after receiving notice thereof, of
the time when the Registration Statement or any amendment thereto has been
filed or declared effective or the Prospectus or any Integrated Prospectus or
any amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or effectiveness.
(b) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement, the Prospectus or any
Integrated Prospectus or any amendment or supplement thereto or any order
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
or any Integrated Prospectus or any amendment or supplement thereto, (ii) the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or for additional information. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal thereof
as promptly as possible.
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7072140.05 October 29, 1996
(c) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date
when a prospectus relating to the Securities is required to be delivered under
the Act or (ii) the Option Closing Date, any event occurs as a result of which
the Prospectus or any Integrated Prospectus, as then amended or supplemented,
would include any 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, or if for any
other reason it is necessary at any time to amend or supplement the Prospectus
or any Integrated Prospectus to comply with the Act, the Exchange Act or the
respective rules or regulations of the Commission thereunder, the Company will
promptly notify the Representatives thereof and, subject to Section 5(a)
hereof, will prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement to each
of the Prospectus and any required Integrated Prospectus that corrects such
statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (B) to each other Underwriter, a conformed copy of
such registration statement and any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (C) so long as a
prospectus relating to the Securities is required to be delivered under the
Act, as many copies of each Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request; without limiting the application of
clause (iii) of this sentence, the Company, not later than (A) 6:00 PM, New
York City time, on the date of determination of the public offering price, if
such determination occurred at or prior to 12:00 Noon, New York City time, on
such date or (B) 6:00 PM, New York City time, on the business day following the
date of determination of the public offering price, if such determination
occurred after 12:00 Noon, New York City time, on such date will deliver to the
Representatives, without charge, as many copies of the Prospectus and any
amendment or supplement thereto as the Representatives may reasonably request
for purposes of confirming orders that are expected to settle on the Closing
Date.
(f) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives an earnings
statement of the Company and its subsidiaries that satisfies the provisions of
Section 11(a) of the Act and Rule 158 thereunder.
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7072140.05 October 29, 1996
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in each of the Prospectus
and any Integrated Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of the X. Xxxxxxxx AB, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 90 days after the date
hereof, except pursuant to this Agreement and except for (i) issuances of
options or stock appreciation rights under the Company's 1996 Stock Incentive
Plan, (ii) issuances of shares of Common Stock pursuant to the exercise of
stock options, stock appreciation rights, or warrants outstanding on the date
hereof and (iii) issuances of shares of Common Stock in connection with the
acquisition of technology, products or businesses compatible with the Company's
existing business.
(i) The Company will not, directly or indirectly, (i) take
any action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Securities or (ii) (A) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Securities or (B) pay or agree to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company.
(j) The Company will obtain the agreements described in
Section 7(i) hereof prior to the Firm Closing Date.
(k) If the Company elects to rely on 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 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on
the date of this Agreement and (ii) the time confirmations are sent or given,
as specified by Rule 462(b)(2).
(l) The Company will cause the Securities to be duly included
for quotation on the Nasdaq National Market prior to the Firm Closing Date. For
five years after the date of the Prospectus, the Company will ensure that the
Securities remain included for quotation on the Nasdaq National Market.
(m) The Company will cause the Securities to be listed on the
Stockholm Stock Exchange prior to the Firm Closing Date. For five years after
the date of the Prospectus, the Company will ensure that the Securities remain
listed on the Stockholm Stock Exchange.
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7072140.05 October 29, 1996
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs, expenses and
taxes incident to (i) the printing or other production of documents with
respect to the transactions, including any costs of printing the registration
statement originally filed with respect to the Securities and any amendment
thereto, any Rule 462(b) Registration Statement, any Preliminary Prospectus and
the Prospectus, the Swedish Prospectus and any Integrated Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda,
(ii) all arrangements relating to the delivery to the Underwriters of copies of
the foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company and all
expenses relating to presentations and meetings held with potential investors
in the Securities, (iv) preparation, issuance and delivery to the Underwriters
of any certificates evidencing the Securities, including transfer agent's and
registrar's fees, fees of DTC and fees of VPC (v) the qualification of the
Securities under state securities and blue sky laws, including filing fees and
fees and disbursements of counsel for the Underwriters relating thereto, (vi)
the filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Securities, (vii) any quotation of the Securities
on the Nasdaq National Market (viii) all of the costs of attending any
presentations and meetings with prospective investors in the Securities, (ix)
any fees, costs, expenses or commissions payable in connection with the
obtaining of all requisite consents and approvals for the transaction and the
listing application for the Stockholm Stock Exchange, (x) the reasonable fees
and expenses (including all legal fees and expenses and all travelling,
telephone and courier expenses and any other out-of-pocket expenses) incurred
by any of the Underwriters in connection with the preparation, management and
implementation of this transaction, and (xi) any stamp or other duties or taxes
payable in Sweden or the United States or in any other jurisdiction wherever
situated on or in connection with the sale of such Securities and/or the
execution of this Agreement or any other agreement connected with this
transaction. In addition, the Company shall pay to the Representatives any
value added tax or similar tax ("VAT") that may be payable in connection with
this Agreement and all references in this Agreement to fees, commissions, costs
and expenses shall be deemed to include, in addition thereto, VAT payable in
respect thereof. If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 11 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by any of the Underwriters, the Company will pay the
Underwriters severally upon demand for all fees, costs and expenses in this
Section 6 (including counsel fees and disbursements) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
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7072140.05 October 29, 1996
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm
Closing Date, to the accuracy of the statements of the Company's officers made
pursuant to the provisions hereof, to the performance by the Company of its
covenants and agreements hereunder to be performed on or prior to the Firm
Closing Date, and to the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11 A.M., New York time, on the date on which the amendment
to the registration statement originally filed with respect to the Securities
or to the Registration Statement, as the case may be, containing information
regarding the public offering price of the Securities has been filed with the
Commission, and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2) or, with respect to the Original Registration Statement, such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any Integrated Prospectus and amendment or supplement thereto shall have been
filed with the Commission in the manner and within the time period required by
Rules 434 and 424(b) under the Act; no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment of
supplement thereto shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission.
(b) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Battle Xxxxxx LLP, counsel for the Company in
substantially the form attached hereto as Exhibit A.
(c) The Representatives shall have received an opinion, dated
the Firm Closing Date, of ______________________, Swedish counsel for the
Company, in substantially the form attached hereto as Exhibit B.
(d) The Representatives have received an opinion, dated the
Firm Closing Date, of ___________________, Swedish patent counsel for the
Company, in form and substance satisfactory to the Representatives with respect
to such patent matters as the Representatives may reasonably require.
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7072140.05 October 29, 1996
(e) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxxx & Xxxxxx, United States patent counsel for the
Company, substantially in the form attached hereto as Exhibit C.
(f) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement and the Prospectus or any Integrated Prospectus, and
such other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received from Ernst &
Young LLP a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives to the
effect that:
(i) They are independent certified public
accountants with respect to the Company and its subsidiaries
within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the financial
statements and any supplementary financial information and
schedules examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the
American Institute of Certified Public Accountants of the
consolidated interim financial statements and the selected
financial data, derived from audited financial statements of
the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
separately furnished to the Representatives;
(iii) They have made a review in accordance
with standards established by the American Institute of
Certified Public Accountants of the unaudited condensed
consolidated statements of operations, consolidated balance
sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives;
and on the basis of specified procedures including inquiries
of officials of the Company who have responsibility for
financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements
referred to in paragraph (f)(A)(i) below comply as to form in
the related in all material respects with the applicable
accounting requirements of the Act and
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7072140.05 October 29, 1996
the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial
information with respect to the consolidated results of
operations and financial position of the Company for the five
most recent fiscal years included in the Registration
Statement, the Prospectus, any Integrated Prospectus and
included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts in the
audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in
the Prospectus and any Integrated Prospectus under selected
captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with
the disclosure requirements of Items 301, 302 and 402,
respectively, of Regulation S-K;
(vi) On the basis of limited procedures,
not constituting an examination in accordance with generally
accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred
to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since
the date of the latest audited financial statements included
or incorporated by reference in the Registration Statement,
the Prospectus, and any Integrated Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) the unaudited condensed
consolidated statements of operations, consolidated balance
sheets and consolidated statements of cash flows included in
the Registration Statement, the Prospectus and any Integrated
Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules
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7072140.05 October 29, 1996
and regulations, or (ii) any material modifications should be
made to the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Registration Statement the
Prospectus and any Integrated Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(B) any other unaudited income
statement data and balance sheet items included in the
Registration Statement, the Prospectus and any Integrated
Prospectus do not agree with the corresponding items in the
unaudited condensed consolidated financial statements from
which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) as of a specified date not more
than five days prior to the date of such letter, there have
been any changes in the consolidated capital stock (other
than issuances of capital stock upon exercise of options and
stock appreciation rights, exercise of warrants, in each case
which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the
Registration Statement, Prospectus and any Integrated
Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or
other items specified by the Representatives or any increases
in any items specified by the Representatives, in each case
as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Registration
Statement, Prospectus and any Integrated Prospectus, except
in each case for changes, increases or decreases which the
Registration Statement, Prospectus and any Integrated
Prospectus disclosed have occurred or may occur or which are
described in such letter; and
(D) for the period from the date of
the latest financial statements included or incorporated by
reference in the Registration Statement, the Prospectus and
any Integrated Prospectus to the specified date referred to
in Clause (3) there were any increases in consolidated total
operating expenses or the total or per share amounts of
consolidated net loss or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, or any decreases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the
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7072140.05 October 29, 1996
Registration Statement, the Prospectus and any Integrated
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination
referred to in their report(s) included or incorporated by
reference in the Registration Statement, Prospectus and any
Integrated Prospectus and the limited procedures, inspection
of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vii) above, they have carried out
certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial
information specified by the Representatives which are
derived from the general accounting records of the Company
and its subsidiaries, which appear in the Registration
Statement, Prospectus and any Integrated Prospectus
(excluding documents incorporated by reference) or in Part II
of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found
them to be in agreement.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (g) with respect to either letter
referred to above shall include any amendment or supplement thereto at the date
of such letter.
(h) The Representatives shall have received a certificate,
dated the Firm Closing Date, of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that:
(i) the representations and warranties of
the Company in this Agreement are true and correct as if made
on and as of the Firm Closing Date; the Registration
Statement, as amended as of the Firm Closing Date, does not
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein not misleading, and the Prospectus, the Swedish
Prospectus and any Integrated Prospectus, as amended or
supplemented as of the Firm Closing Date, does not include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and the Company has performed all
covenants and agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Firm
Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement or any
post-effective amendment thereto, no order directed at any
document incorporated by reference in the Registration
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7072140.05 October 29, 1996
Statement, the Prospectus or any Integrated Prospectus has
been issued and no proceedings for that purpose have been
instituted or threatened or, to the best of the Company's
knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as
of which information is given in the Registration Statement
and each of the Prospectus, the Swedish Prospectus and any
Integrated Prospectus, neither the Company nor any of its
subsidiaries have sustained any material loss or interference
with its business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material
adverse change, or any development which the Company
reasonably believes could result in a prospective material
adverse change, in the condition (financial or otherwise),
management, business prospects, net worth or results of
operations of the Company, except in each case as described
in or contemplated by the Prospectus and any Integrated
Prospectus (exclusive of any amendment or supplement
thereto).
(i) The Representatives shall have received from each person
who is a director or officer of the Company an agreement to the effect that
such person will not, directly or indirectly, without the prior written consent
of X. Xxxxxxxx AB, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of an option to purchase or other sale or disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock for a period of 180 days after the date of this
Agreement.
(j) On or before the Firm Closing Date, the Representatives
and counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(k) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
National Market.
(l) Prior to the commencement of the offering of the
Securities, the Securities shall have been listed for trading on the Stockholm
Stock Exchange.
(m) On or before the Firm Closing Date, the Company shall
cause OXiGENE (Europe) AB to enter into a Letter Agreement with the
Representatives, substantially in the form attached hereto as Exhibit D,
pursuant to which OXiGENE (Europe) AB guarantees the obligations of the Company
under Sections 6 and 8 hereof and agrees to submit to jurisdiction in New York
with respect to the enforcement of such guarantee.
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7072140.05 October 29, 1996
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages, charges (including VAT), or liabilities, joint or
several, to which such Underwriter or such controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged
untrue statement made by the Company in Section 2 of this
Agreement,
(ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the
Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus, the Swedish
Prospectus, or any Integrated Prospectus or any amendment or
supplement thereto or (B) any application or other document,
or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in order to
qualify the Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to
state in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus, the Swedish
Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or
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7072140.05 October 29, 1996
(iv) any untrue statement or alleged untrue
statement of any material fact contained in any audio or
visual materials used in connection with the marketing of the
Securities, including, without limitation, slides, videos,
films, tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
or any amendment thereto, any Preliminary Prospectus, the Prospectus, the
Swedish Prospectus, and any Integrated Prospectus or any amendment or
supplement thereto or any Application in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have. The Company
will not, without the prior written consent of the Underwriter or Underwriters
purchasing, in the aggregate, more than fifty percent (50%) of the Securities,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such Underwriter or
any person who controls any such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding. This
indemnity shall be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Company or any such director, officer of the Company or any such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus, the Swedish Prospectus, or any Integrated Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any Integrated Prospectus or any amendment or supplement
thereto, or any Application or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was
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7072140.05 October 29, 1996
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for
use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence or (ii) the indemnifying party does not
promptly retain counsel reasonably satisfactory to the indemnified party or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof)
-27-
7072140.05 October 29, 1996
in such proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deduction expenses) received by
the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault of the parties 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 or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Underwriter shall be obligated to
make contributions hereunder that in the aggregate exceed the total public
offering price of the Securities purchased by such Underwriter under this
Agreement, less the aggregate amount of any damages that such Underwriter has
otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions
among Underwriters shall be based on such Underwriter's proportion as is
appropriate to reflect the relative fault of such Underwriter. For purposes of
this paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder
and the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of
-28-
7072140.05 October 29, 1996
such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Firm Closing Date or the related Option Closing
Date, as the case may be, the other Underwriters shall be obligated severally
in proportion to their respective commitments hereunder to purchase the Firm
Securities or Option Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase. If one or more Underwriters so
default with respect to an aggregate number of Securities that is more than ten
percent of the aggregate number of Firm Securities or Option Securities, as the
case may be, to be purchased by all of the Underwriters at such time hereunder,
and if arrangements satisfactory to the Representatives are not made within 36
hours after such default for the purchase by other persons (who may include one
or more of the non-defaulting Underwriters, including the Representatives) of
the Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or
the Company other than as provided in Section 10 hereof. In the event of any
default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary
changes may be made in the arrangements or documents for the purchase and
delivery of the Firm Securities or Option Securities, as the case may be. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 9. Nothing herein shall relieve any
defaulting Underwriter from liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and
the several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Company, any of its officers or directors, any Underwriter or any controlling
person referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date
or the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and
satisfy all conditions on its part to be performed or satisfied hereunder at or
prior thereto or, if at or prior to the Firm Closing Date or such Option
Closing Date, respectively,
-29-
7072140.05 October 29, 1996
(i) the Company or any of its subsidiaries
shall have, in the sole judgment of the Representatives,
sustained any material loss or interference with their
businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or
governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective
material adverse change (including without limitation a
change in management or control of the Company), in the
condition (financial or otherwise), business prospects, net
worth or results of operations of the Company and its
subsidiaries, except in each case as described in or
contemplated by each of the Prospectus, the Swedish
Prospectus and any Integrated Prospectus (exclusive of any
amendment or supplement thereto);
(ii) there shall not have occurred any of
the following: (A) a suspension or material limitation in
trading in securities generally on the New York Stock
Exchange, the NASDAQ National Market or the Stockholm Stock
Exchange; (B) a suspension or material limitation in trading
in the Company's securities on the NASDAQ National Market or
the Stockholm Stock Exchange; (C) a general moratorium on
commercial banking activities in New York or Sweden declared
by the relevant authorities; (D) the outbreak or escalation
of hostilities involving the United States or the European
Union ("EU") or the declaration by the United States or
relevant EU authorities of a national emergency or war if the
effect of any such event in the judgment of the
Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of, or
materially impairs the ability of the Underwriters to
subscribe, hold or sell, the Securities being delivered on
the terms and in the manner contemplated in the Prospectuses;
or (E) a change in national or international political,
financial or economic conditions or taxation regimes or
currency exchange rates or controls if the effect of any such
event in the judgment of the Representatives is so material
and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of, or
materially impairs the ability of the Underwriters to
subscribe, hold or sell, the Shares being delivered on the
terms and in the manner contemplated in the Prospectuses;
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided
in Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth in
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus, the Prospectus or any Integrated Prospectus (to
the extent such statements relate to the Underwriters) constitute the only
information furnished by any Underwriter through the Representatives to the
Company for the purposes of Sections 2(b) and 8 hereof. The Underwriters
confirm that such statements (to such extent) are correct.
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7072140.05 October 29, 1996
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to X. Xxxxxxxx AB, Xxxxxx
Xxxxxx Torg 00, X-000 00 Xxxxxxxxx, Xxxxxx, Telecopier: x00 0 000000; and, if
sent to the Company, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to OXiGENE, Inc., 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000, U.S.A., Telecopier: x0 000 000-0000.
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person 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 (i) the indemnities of the Company contained in Section 8 of this
Agreement shall also be for the benefit of any person or persons who control
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 8 of this Agreement shall also be for the benefit of the directors of
the Company, the officers of the Company who have signed the Registration
Statement and any person or persons who control the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities from any Underwriter shall be deemed a successor because of such
purchase.
This Agreement may not be assigned by either party hereto without the
prior written consent of the other parties hereto.
15. Jurisdiction. The Company hereby irrevocably (i) agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in any state or federal
court located in the Borough of Manhattan, The City of New York, New York (a
"New York Court"), (ii) waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding and (iii) submits to the jurisdiction of such courts in any
such suit, action or proceeding. The Company does hereby appoint M. Xxxxxx
Xxxxx, Esq., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized
agent (the "Authorized Agent") upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter or by the Company,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company may appoint a successor agent to
receive service of process as described herein; provided, however, that the
Company shall at all times maintain an agent for service of process in New York
City. The Company represents and warrants that the Authorized Agent has agreed
to act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that
-31-
7072140.05 October 29, 1996
may be necessary to continue such appointment (or any appointment of a
successor agent, as applicable) in full force and effect as aforesaid. Service
of process upon the Authorized Agent and written notice of such service to the
Company, as the case may be, shall be deemed, in every respect, effective
service of process upon the Company.
16. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, United States
of America.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-32-
7072140.05 October 29, 1996
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and
each of the several Underwriters.
Very truly yours,
OXiGENE, INC.
By:
------------------------------------
Xxxxx Xxxxxxxxxx
President and Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
By: X. XXXXXXXX AB
By: -----------------------------------
Name:
Title:
By: XXXXXXXX CAPITAL INC.
By: -----------------------------------
Name:
Title:
-33-
7072140.05 October 29, 1996
SCHEDULE 1
UNDERWRITERS
--------------------------------------------------------------------------------------------------------------------------
U.S. Offering International Offering
Number of International
Number of U.S. Firm Firm Securities to be
Underwriter Securities to be Purchased Purchased
--------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxxx AB.............................
--------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Capital Inc.......................
--------------------------------------------------------------------------------------------------------------------------
----------- -----------
Total......................... [200,000] [800,000]
--------------------------------------------------------------------------------------------------------------------------
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