EXHIBIT 1.1
H&D DRAFT
11/11/96
2,000,000 Shares
PROGENICS PHARMACEUTICALS, INC.
Common Stock
UNDERWRITING AGREEMENT
____________, 1996
Xxxxxxxxxxx & Co., Inc.
Vector Securities International, Inc.
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several Underwriters
named on Schedule I attached hereto
Ladies and Gentlemen:
Progenics Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), proposes to sell to you and the other underwriters
named on Schedule I to this Agreement (the "Underwriters"), for
whom you are acting as Representatives, an aggregate of 2,000,000
shares (the "Firm Shares") of the Company's Common Stock, $0.0013
par value (the "Common Stock"). In addition, the Company proposes
to grant to the Underwriters an option to purchase up to an
additional 300,000 shares (the "Option Shares") of Common Stock
from it for the purpose of covering over-allotments in connection
with the sale of the Firm Shares. The Firm Shares and the Option
Shares are together called the "Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the
representations, warranties and agreements contained in, and
subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at $_____ per
share (the "Initial Price"), the number of Firm Shares set
forth opposite the name of such Underwriter on Schedule I to
this Agreement.
(b) The Company grants to the several Underwriters an
option to purchase, severally and not jointly, all or any
part of the Option Shares at the Initial Price. The number
of Option Shares to be purchased by each Underwriter shall be
the same percentage (adjusted by the Representatives to
eliminate fractions) of the total number of Option Shares to
be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Shares. Such option may be exercised
only to cover over-allotments in the sales of the Firm Shares
by the Underwriters and may be exercised in whole or in part
at any time on or before 12:00 noon, New York City time, on
the business day before the Firm Shares Closing Date (as
defined below), and only once thereafter within 30 days after
the date of this Agreement, in each case upon written or
telegraphic notice, or verbal or telephonic notice confirmed
by written or telegraphic notice, by the Representatives to
the Company no later than 12:00 noon, New York City time, on
the business day before the Firm Shares Closing Date or at
least two business days before the Option Shares Closing Date
(as defined below), as the case may be, setting forth the
number of Option Shares to be purchased and the time and date
(if other than the Firm Shares Closing Date) of such
purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the
Firm Shares to the Representatives for the respective accounts of
the Underwriters, and payment of the purchase price by certified
or official bank check or checks payable in New York Clearing
House (next day) funds to the Company, shall take place at the
offices of Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the
third business day following the date of this Agreement, or at
such time on such other date, not later than 10 business days
after the date of this Agreement, as shall be agreed upon by the
Company and the Representatives (such time and date of delivery
and payment are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the
Representatives for the respective accounts of the Underwriters
and payment of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next day)
funds to the Company shall take place at the offices of Xxxxx
Xxxxxxxxxx specified above at the time and on the date (which may
be the same date as, but in no event shall be earlier than, the
Firm Shares Closing Date) specified in the notice referred to in
Section 1(b) (such time and date of delivery and payment are
called the "Option Shares Closing Date"). The Firm Shares Closing
Date and the Option Shares Closing Date are called, individually,
a "Closing Date" and, together, the "Closing Dates."
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Certificates evidencing the Shares shall be registered in
such names and shall be in such denominations as the
Representatives shall request at least two full business days
before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the option as
described in Section 1(b) and shall be made available to the
Representatives for checking and packaging, at such place as is
designated by the Representatives, on the full business day before
the Firm Shares Closing Date (or the Option Shares Closing Date in
the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS: PUBLIC OFFERING.
The Company has prepared in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and
the published rules and regulations thereunder (the "Rules")
adopted by the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No.
333-13627), including a preliminary prospectus relating to the
Shares, and has filed with the Commission the Registration
Statement (as hereinafter defined) and such amendments thereof as
may have been required to the date of this Agreement. Copies of
such Registration Statement (including all amendments thereof) and
of the related preliminary prospectus have heretofore been
delivered by the Company to you. The term "preliminary
prospectus" means any preliminary prospectus (as described in Rule
430 of the Rules) included at any time as a part of the
Registration Statement. The Registration Statement as amended at
the time and on the date it becomes effective (the "Effective
Date"), including all exhibits and information, if any, deemed to
be part of the Registration Statement pursuant to Rule 424(b) and
Rule 430A of the Rules, together with any registration statement
for the same offering filed by the Company that is to be effective
upon filing pursuant to Rule 462(b) of the Securities Act, is
called the "Registration Statement." The term "Prospectus" means
the prospectus in the form first used to confirm sales of the
Shares (whether such prospectus was included in the Registration
Statement at the time of effectiveness or was subsequently filed
with the Commission pursuant to Rule 424(b) of the Rules).
The Company understands that the Underwriters propose to make
a public offering of the Shares, as set forth in and pursuant to
the Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representatives deem advisable. The Company
hereby confirms that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each
preliminary prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the
Underwriters).
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby represents and warrants to each Underwriter as
follows:
(a) On the Effective Date the Registration Statement
complied, and on the date of the Prospectus, on the date any
post-effective amendment to the Registration Statement shall
become effective, on the date any supplement or amendment to
the Prospectus is filed with the Commission and on each
Closing Date, the Registration Statement and the Prospectus
(and any amendment thereof or supplement thereto) will
comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission
thereunder; the Registration Statement did not, as of the
Effective Date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading; and on the other dates referred to above
neither the Registration Statement nor the Prospectus, nor
any amendment thereof or supplement thereto, will contain any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading. When
any related preliminary prospectus was first filed with the
Commission (whether filed as part of the Registration
Statement or any amendment thereto or pursuant to Rule 424(a)
of the Rules) and when any amendment thereof or supplement
thereto was first filed with the Commission, such preliminary
prospectus as amended or supplemented complied in all
material respects with the applicable provisions of the
Securities Act and the Rules and did not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading. Notwithstanding
the foregoing, the Company makes no representation or
warranty as to the last paragraph on the cover page of the
Prospectus, the paragraph with respect to stabilization on
the inside front cover page of the Prospectus, the concession
and reallowance figures appearing under the caption
"Underwriting" in the Prospectus and the last sentence of the
third full paragraph under the caption "Underwriting" in the
Prospectus regarding the exercise of discretionary authority
by the Underwriters. The Company acknowledges that the
statements referred to in the previous sentence constitute
the only information furnished in writing by the
Representatives on behalf of the Underwriters specifically
for inclusion in the Registration Statement, any preliminary
prospectus or the Prospectus.
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(b) All contracts and other documents required to be
filed as exhibits to the Registration Statement have been
filed with the Commission as exhibits to the Registration
Statement.
(c) The financial statements of the Company (including
all notes and schedules thereto) included in the Registration
Statement and Prospectus present fairly the financial
position, results of operations and cash flows and the
stockholders' equity and the other information purported to
be shown therein of the Company at the respective dates and
for the respective periods to which they apply; and such
financial statements have been prepared in conformity with
generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such
periods have been made; PROVIDED, HOWEVER, that the interim
financial statements contained in the Registration Statement
and Prospectus shall be subject to normal year-end
adjustments in accordance with generally accepted accounting
principles.
(d) Coopers & Xxxxxxx LLP, whose reports are filed with
the Commission as a part of the Registration Statement, are
and, during the periods covered by their reports, were
independent public accountants as required by the Securities
Act and the Rules.
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware. The Company has no
subsidiaries and does not control, directly or indirectly,
any corporation, partnership, joint venture, association or
business. The Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the
character or location of its assets or properties (owned,
leased or licensed) or the nature of its business makes such
qualification necessary except for such jurisdictions where
the failure to so qualify would not have a material adverse
effect on the assets or properties, business, results of
operations or financial condition of the Company. Except as
disclosed in the Registration Statement and the Prospectus,
the Company does not own, lease or license any asset or
property or conduct any business outside the United States of
America. The Company has all requisite corporate power and
authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other
person or entity, to own, lease and license its assets and
properties and conduct its businesses as now being conducted
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and as described in the Registration Statement and the
Prospectus except for such authorizations, approvals,
consents, orders, material licenses, certificates and permits
the failure to so obtain would not have a material adverse
effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise)
of the Company; no such authorization, approval, consent,
order, license, certificate or permit contains a materially
burdensome restriction other than as disclosed in the
Registration Statement and the Prospectus; and the Company
has all such corporate power and authority, and such
authorizations, approvals, consents, orders, licenses,
certificates and permits to enter into, deliver and perform
this Agreement and to issue and sell the Shares (except as
may be required under state and foreign Blue Sky laws). To
the Company's knowledge, all of the properties now or
formerly owned or leased by the Company or any subsidiary,
all research and manufacturing operations conducted thereon
(including discharges and emissions therefrom) and all
research and manufacturing equipment now or formerly used at
said properties, have been and are in compliance with all
Federal, state, local and foreign statutes, ordinances,
regulations, rules and standards concerning or relating to
industrial hygiene and the protection of health, safety,
welfare and the environment (collectively, "the Environmental
Laws"), except to the extent that any failure to be in
compliance, singly or in the aggregate, would not have a
material adverse effect upon the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company. The Company has not
received notice, and does not have knowledge, of any claim,
demand, investigation, regulatory action, suit or other
action instituted or threatened against it or said property
relating to any of the Environmental Laws.
(f) The Company has filed with the U.S. Food and Drug
Administration (the "FDA"), and all applicable foreign, state
and local regulatory bodies for, and received approval of,
all registrations, applications, licenses, requests for
exemptions, permits and other regulatory authorizations
material to the conduct of the Company's business as it is
now conducted; the Company is in compliance in all material
respects with all such registrations, applications, licenses,
requests for exemptions, permits and other regulatory
authorizations, and all applicable FDA, foreign, state and
local rules and regulations; the Company has no reason to
believe that any party granting any such registration,
application, license, request for exemption, permit or other
authorization is considering limiting, suspending or revoking
the same.
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(g) The human clinical trials, animal studies and other
preclinical tests conducted by the Company or in which the
Company has participated that are described in the
Registration Statement and Prospectus or the results of which
are referred to in the Registration Statement or Prospectus,
and such studies and tests conducted on behalf of the Company
(including but not limited to studies and tests conducted
under institutional INDs filed by Memorial Xxxxx-Xxxxxxxxx
Cancer Center ("Xxxxx-Xxxxxxxxx"), were and, if still
pending, are being conducted in all material respects in
accordance with experimental protocols, procedures and
controls generally used by qualified experts in the
preclinical or clinical study of products comparable to those
being developed by the Company; the descriptions of the
results of such studies, tests and trials contained in the
Registration Statement and Prospectus are accurate and
complete in all material respects, and the Company has no
knowledge of any other trials, studies or tests, the results
of which reasonably call into question the results described
or referred to in the Registration Statement and Prospectus;
the Company has not received any notices or correspondence
from the FDA or any other governmental agency requiring the
termination, suspension or modification (other than such
modifications as are normal in the regulatory process) of any
animal studies, preclinical tests or clinical trials
conducted by or on behalf of the Company (including but not
limited to studies and tests conducted under institutional
INDs filed by Xxxxx-Xxxxxxxxx) or in which the Company has
participated that are described in the Registration Statement
or Prospectus or the results of which are referred to in the
Registration Statement or Prospectus.
(h) The Company owns or possesses adequate and
enforceable rights to use all patents, patent applications,
trademarks, trademark applications, trade names, service
marks, copyrights, copyright applications, licenses,
know-how, proprietary techniques, including processes and
substances, and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the
conduct of its business as described in the Registration
Statement and the Prospectus. The Company has not received
any notice of, and to its best knowledge is not aware of, any
infringement of or conflict with asserted rights of others
with respect to any Intangibles which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a material adverse effect upon the
assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the
Company. The Company is not aware of any infringement of any
of the Company's Intangibles by any third party which could
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have a material adverse effect upon the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company.
(i) The Company has good title to each of the items of
personal property which are reflected in the financial
statements referred to in Section 4(c) or are referred to in
the Registration Statement and the Prospectus as being owned
by it and valid and enforceable leasehold interests in each
of the items of real and personal property which are referred
to in the Registration Statement and the Prospectus as being
leased by it, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other
than those described in the Registration Statement and the
Prospectus and those which do not and will not have a
material adverse effect upon the assets or properties,
business, results of operations or financial condition of the
Company.
(j) There is no litigation or governmental or other
proceeding or investigation before any court or before or by
any public body or board pending or, to the Company's best
knowledge, threatened (and the Company does not know of any
basis therefor) against, or involving the assets, properties
or business of, the Company which, if determined adversely to
the Company, would materially adversely affect the value or
the operation of any such assets or properties or the
business, results of operations, prospects or condition
(financial or otherwise) of the Company.
(k) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described therein, (i) there has not
been any material adverse change in the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise), of the Company, whether or not
arising from transactions in the ordinary course of business;
(ii) the Company has not sustained any material loss or
interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or any court or legislative or
other governmental action, order or decree; and (iii) since
the date of the latest balance sheet included in the
Registration Statement and the Prospectus, except as
reflected in the Registration Statement or the Prospectus,
the Company has not (a) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed
money, except such liabilities or obligations incurred in the
ordinary course of business, (b) entered into any transaction
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not in the ordinary course of business or (c) declared or
paid any dividend or made any distribution on any shares of
its stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares of
its stock.
(l) There is no document or contract of a character
required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required. Each
agreement listed in the exhibits to the Registration
Statement is in full force and effect and is valid and
enforceable by and against the Company in accordance with its
terms, assuming the due authorization, execution and delivery
thereof by each of the other parties thereto. Neither the
Company, nor, to the best of the Company's knowledge, any
other party is in default in the observance or performance of
any term or obligation to be performed by it under any such
agreement, and no event has occurred which with notice or
lapse of time or both would constitute such a default, in any
such case which default or event would have a material
adverse effect on the assets or properties, business, results
of operations, prospects or condition (financial or
otherwise) of the Company. No default exists, and no event
has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance
of any term, covenant or condition, by the Company of any
other agreement or instrument to which the Company is a party
or by which it or its properties or business may be bound or
affected which default or event would have a material adverse
effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise)
of the Company.
(m) The Company is not in violation of any term or
provision of its charter or by-laws or of any franchise,
license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would
have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company.
(n) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of
the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the
Shares) will give rise to a right to terminate or accelerate
the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse
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of time or both would constitute a default) under, or require
any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company pursuant to the terms of,
any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it or
any of its properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute,
rule or regulation applicable to the Company or violate any
provision of the charter or by-laws of the Company, except
for such consents or waivers which have already been obtained
and are in full force and effect.
(o) The Company has an authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus. All of the outstanding shares of Common
Stock have been duly and validly issued and are fully paid
and nonassessable and none of them was issued in violation of
any preemptive or other similar right. The Shares, when
issued and sold pursuant to this Agreement, will be duly and
validly issued, fully paid and nonassessable and none of them
will be issued in violation of any preemptive or other
similar right. Except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and there
is no commitment, plan or arrangement to issue, any share of
stock of the Company or any security convertible into, or
exercisable or exchangeable for, such stock. The Common
Stock and the Shares conform in all material respects to all
statements in relation thereto contained in the Registration
Statement and the Prospectus.
(p) No holder of any security of the Company has the
right to have any security owned by such holder included in
the Registration Statement or to demand registration of any
security owned by such holder during the period ending 180
days after the date of this Agreement. Each of the directors
and executive officers of the Company, and other stockholders
of the Company who beneficially own, in the aggregate,
shares of Common Stock (the "Locked-up Holders")
either have agreed with the Company or delivered to the
Representatives his enforceable written agreement that he
will not, for a period of 180 days after the date of this
Agreement, offer for sale, sell, distribute, grant any option
for the sale of, or otherwise dispose of, directly or
indirectly, or exercise any registration rights with respect
to, any shares of Common Stock (or any securities convertible
into, exercisable for, or exchangeable for any shares of
Common Stock) owned by him, without the prior written consent
of Xxxxxxxxxxx & Co., Inc. ("Oppenheimer").
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Oppenheimer agrees to notify Vector Securities International,
Inc. of its intention to consent to any of the transactions
prohibited by this paragraph.
(q) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution,
delivery and performance of this Agreement and the issuance
and sale of the Shares by the Company. This Agreement has
been duly and validly authorized, executed and delivered by
the Company and constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except (A) as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles and (B) to the extent that rights to
indemnity or contribution under this Agreement may be limited
by Federal and state securities laws or the public policy
underlying such laws.
(r) The Company is not involved in any labor dispute
nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a material adverse
effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise)
of the Company.
(s) No transaction has occurred between or among the
Company and any of its officers or directors or any affiliate
or affiliates of any such officer or director that is
required to be described in and is not described in the
Registration Statement and the Prospectus.
(t) The Company has not taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of
the Shares.
(u) The Company has filed all Federal, state, local and
foreign tax returns which are required to be filed by it
through the date hereof, or has received extensions thereof,
and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same are
material and have become due.
(v) The Shares have been duly authorized for quotation
on Nasdaq National Market.
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(w) The Company has complied with all of the
requirements and filed the required forms as specified in
Florida Statutes Section 517.075.
5. CONDITIONS OF THE UNDERWRITERS OBLIGATIONS. The
obligations of the Underwriters under this Agreement are several
and not joint. The respective obligations of the Underwriters to
purchase the Shares are subject to each of the following terms and
conditions:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 6(A)(a) of this
Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or
shall be in effect and no order suspending the effectiveness
of the Registration Statement shall be in effect and no
proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in
the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the satisfaction of the
Representatives.
(c) The representations and warranties of the Company
contained in this Agreement and in the certificates delivered
pursuant to Section 5(d) shall be true and correct when made
and on and as of each Closing Date as if made on such date
and the Company shall have performed all covenants and
agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by it at or
before such Closing Date.
(d) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives
and dated such Closing Date, of the chief executive or chief
operating officer and the chief financial officer or chief
accounting officer of the Company to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and
that the representations and warranties of the Company in
this Agreement are true and correct on and as of such Closing
Date with the same effect as if made on such Closing Date and
the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required
to be performed or satisfied by it at or prior to such
Closing Date.
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(e) The Representatives shall have received on the
Effective Date, at the time this Agreement is executed and on
each Closing Date a signed letter from Coopers & Xxxxxxx LLP
addressed to the Representatives and dated, respectively, the
Effective Date, the date of this Agreement and each such
Closing Date, in form and substance reasonably satisfactory
to the Representatives.
(f) The Representatives shall have received on each
Closing Date from Xxxxx Xxxxxxxxxx, counsel for the Company,
an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under
the laws of the State of Delaware. The Company is duly
qualified and in good standing as a foreign corporation
in each jurisdiction in which the character or location
of its assets or properties (owned, leased or licensed)
or the nature of its businesses makes such qualification
necessary, except for such jurisdictions where the
failure to so qualify would not have a material adverse
effect on the assets or properties, business, results of
operations, prospects or condition (financial or
otherwise) of the Company.
(ii) The Company has all requisite corporate power
and authority to own, lease and license its assets and
properties and conduct its business as described in the
Registration Statement and the Prospectus; and the
Company has all requisite corporate power and authority
and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits to enter
into, deliver and perform this Agreement and to issue
and sell the Shares other than those required under
state and foreign Blue Sky laws.
(iii) The authorized and issued capital stock of
the Company is as set forth in the Registration
Statement and the Prospectus; the certificates
evidencing the Shares are in due and proper legal form
and have been duly authorized for issuance by the
Company; all of the outstanding shares of Common Stock
of the Company have been duly and validly authorized and
have been duly and validly issued and are fully paid and
nonassessable and none of them was issued in violation
of any preemptive or other similar right, except for
those violations which have since been validly waived.
The Shares when issued and sold pursuant to this
Agreement will be duly and validly issued, outstanding,
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fully paid and nonassessable and none of them will have
been issued in violation of any preemptive or other
similar right. To the best of such counsel's knowledge,
except as disclosed in the Registration Statement and
the Prospectus, there is no outstanding option, warrant
or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of
stock of the Company or any security convertible into,
exercisable for, or exchangeable for stock of the
Company. The Common Stock and the Shares conform in all
material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus.
(iv) To the best of such counsel's knowledge, no
holder of any security of the Company has the right to
have any security owned by such holder included in the
Registration Statement or, except as described in the
Registration Statement, to demand registration of any
security during the period ending 180 days after the
Effective Date, except for those rights which have been
validly waived.
(v) All necessary corporate action has been duly
and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement
and the issuance and sale of the Shares. This Agreement
has been duly and validly authorized, executed and
delivered by the Company.
(vi) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of
time, or both, would constitute a default) under, or
require consent or waiver under, or result in the
execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company
pursuant to the terms of any indenture, mortgage, deed
of trust, note or other agreement or instrument known to
such counsel and to which the Company is a party or by
which it or any of its properties or businesses is
bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation known to such
counsel or violate any provision of the charter or
by-laws of the Company.
-14-
(vii) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the performance of this Agreement by the Company or
the consummation of the transactions contemplated
hereby, including without limitation the sale of the
Shares, except such as have been obtained under the
Securities Act and such as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the several
Underwriters.
(viii) To the best of such counsel's knowledge,
there is no litigation or governmental or other
proceeding or investigation, before any court or before
or by any public body or board pending or threatened
against, or involving the assets, properties or
businesses of, the Company which, if determined
adversely to the Company, would have a material adverse
effect upon the assets or properties, business, results
of operations, prospects or condition (financial or
otherwise) of the Company.
(ix) The statements in the Prospectus under the
captions "Risk Factors - Availability of Materials";
"Risk Factors - Dependence on Third Parties; "Risk
Factors - Control by Existing Stockholders; Anti-
Takeover Provisions"; "Risk Factors - Future Sales of
Common Stock; Registration Rights; Possible Adverse
Effect on Future Market Price"; "Business - Research and
Development Collaborations"; "Business - Government
Grants"; "Business -- Patents and Proprietary
Technology" (describing the Columbia License Agreement
(as defined below) and the patents and patent
applications licensed to the Company thereby); "Certain
Transactions"; "Description of Capital Stock"; and
"Shares Eligible for Future Sale", insofar as such
statements constitute a summary of documents referred to
therein or matters of law, are fair summaries in all
material respects and accurately present in all material
respects the information called for with respect to such
documents and matters. All contracts and other
documents known to such counsel and required to be filed
as exhibits to, or described in, the Registration
Statement have been so filed with the Commission or are
fairly described in the Registration Statement, as the
case may be.
(x) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements
-15-
and schedules and other financial and statistical data
included therein, as to which such counsel need not
express an opinion) comply as to form in all material
respects with the requirements of the Securities Act and
the Rules.
(xi) The Registration Statement has become
effective under the Securities Act, and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are threatened, pending or contemplated.
(xii) All necessary corporate action has been duly
and validly taken by the Company to authorize the
execution, delivery and performance of the License
Agreement dated March 1, 1989, as amended by a Letter
Agreement dated March 1, 1989, and as amended by a
Letter Agreement dated October 22, 1996, between the
Company and the Trustees of Columbia University. The
Columbia License Agreement (the "Columbia License
Agreement") has been duly and validly authorized,
executed and delivered by the Company.
(xiii) To the best of such counsel's knowledge,
neither the Company nor Columbia has received any notice
of infringement or of conflict with asserted rights of
others with respect to any patents, patent applications,
trademarks, trademark applications, trade names, service
marks, copyrights, copyright applications, licenses or
know-how, proprietary techniques, including processes
and substances, other similar rights and proprietary
knowledge relating to the patents and patent
applications licensed to the Company under the Columbia
License Agreement (such patents and patent applications
being collectively referred to herein as the "Columbia
Licensed Patents"), which could result in any material
adverse effect upon the Company.
(xiv) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending
relating to the Columbia Licensed Patents, other than
review of pending applications for patents, and to the
best of such counsel's knowledge no such proceedings are
threatened or contemplated by governmental authorities
or others.
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of responsible officers of
the Company and public officials and on the opinions of other
-16-
counsel satisfactory to the Representatives as to matters which
are governed by laws other than the laws of the State of New York,
the General Corporation Law of the State of Delaware and the
Federal laws of the United States; provided that such counsel
shall state that in their opinion the Underwriters and they are
justified in relying on such other opinions. Copies of such
certificates and other opinions shall be furnished to the
Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the
Representatives and representatives of the independent certified
public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel
to believe that the Registration Statement at the time it became
effective (except with respect to the financial statements and
notes and schedules thereto and other financial data, as to which
such counsel need express no belief) contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and
notes and schedules thereto and other financial data, as to which
such counsel need make no statement) on the date thereof contained
any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(g) The Representatives shall have received on each Closing
Date from Xxxxxx & Xxxxxx, patent counsel for the Company, an
opinion addressed to the Representatives and dated such Closing
Date, to the effect that such counsel is familiar with the
technology used by the Company in its business and has read the
portions of the Registration Statement and the Prospectus headed:
"Risk Factors - Dependence on and Uncertainty of Protection of
Patents and Proprietary Rights" and "Business - Patents and
Proprietary Technology" (collectively, the "Technology Portion"),
and that, except to the extent that the following opinions relate
to the Company's ganglioside conjugate vaccine technology and
products as to which such counsel provides no opinion:
-17-
(i) such counsel has no knowledge of any facts which
would preclude the Company from having clear title to the
Company's patents or patent applications referenced in the
Technology Portion. To the best of such counsel's knowledge,
the Company does not lack and will not be unable to obtain
any rights or licenses to use any patent or know-how
necessary to conduct the business now conducted or proposed
to be conducted by the Company as described in the
Prospectus, including without limitation the Company's
business relating to HIV receptor technology and products
(except with respect to the Columbia License Agreement and
the Columbia Licensed Patents as to which such counsel
expresses no opinion). To the best of such counsel's
knowledge, the Company has not received any notice of
infringement or of conflict with asserted rights of others
with respect to any patents, patent applications, trademarks,
trademark applications, trade names, service marks,
copyrights, copyright applications, licenses or know-how,
proprietary techniques, including processes and substances,
and other similar rights and proprietary knowledge (except
with respect to the Columbia Licensed Patents as to which
such counsel expresses no opinion) which could result in any
material adverse effect upon the Company. Such counsel is
not aware of any patents of others (except with respect to
the Columbia Licensed Patents as to which such counsel
expresses no opinion) which are infringed by specific
products or processes of the Company referred to in the
Prospectus in such manner as to materially and adversely
affect the Company;
(ii) to the best of such counsel's knowledge, there are
no legal or governmental proceedings pending relating to
trade secrets, trademarks, service marks or other proprietary
information or materials of the Company (except with respect
to the Columbia Licensed Patents as to which such counsel
expresses no opinion), other than review of pending
applications for patents, and to the best of such counsel's
knowledge no such proceedings are threatened or contemplated
by governmental authorities or others;
(iii) such counsel does not know of any material
contracts or other material documents relating to the
Company's proprietary information (except with respect to the
Columbia Licensed Patents as to which such counsel expresses
no opinion), other than those filed as exhibits to the
Registration Statement; and
(iv) the statements under the captions "Risk Factors -
Dependence on and Uncertainty of Protection of Patents and
Proprietary Rights" and "Business - Patents and Proprietary
-18-
Technology" (except with respect to those statements that
describe the Columbia License Agreement and the Columbia
Licensed Patents as to which such counsel expresses no
opinion), insofar as such statements constitute a summary of
documents referred to therein or matters of law, are accurate
summaries and fairly and correctly present, in all material
respects, the information called for with respect to such
documents and matters and such counsel has no reason to
believe that the statements therein are untrue or that there
is an omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that such counsel may rely on
representations of the Company with respect to the factual
matters contained in such statements, provided that such
counsel shall state that nothing has come to the attention of
such counsel which leads them to believe that such
representations are not true and correct in all material
respects.
(h) The Representatives shall have received on each Closing
Date from Wolf, Greenfield & Sacks, P.C., special patent counsel
for the Company, an opinion addressed to the Representatives and
dated such Closing Date, to the effect that such counsel is
familiar with the HIV Receptor Technology and the Company's
ganglioside conjugate vaccine technology and products and has read
the portions of the Registration Statement and the Prospectus
headed: "Risk Factors - Dependence on and Uncertainty of
Protection of Patents and Proprietary Rights" and "Business -
Patents and Proprietary Technology" (collectively, the "Technology
Portion"), and that, solely with respect to the Company's
ganglioside conjugate vaccine technology and products:
(i) such counsel has no knowledge of any facts which
would preclude the Company from having clear title to the
Company's patents or patent applications referenced in the
Technology Portion. To the best of such counsel's knowledge,
the Company does not lack and will not be unable to obtain
any rights or licenses to use any patent or know-how
necessary to conduct the business now conducted or proposed
to be conducted by the Company as described in the
Prospectus. To the best of such counsel's knowledge, the
Company has not received any notice of infringement or of
conflict with asserted rights of others with respect to any
patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights,
copyright applications, licenses or know-how, proprietary
techniques, including processes and substances, and other
similar rights and proprietary knowledge which could result
in any material adverse effect upon the Company. Such
counsel is not aware of any patents of others which are
-19-
infringed by specific products or processes of the Company
referred to in the Prospectus in such manner as to materially
and adversely affect the Company;
(ii) to the best of such counsel's knowledge, there are
no legal or governmental proceedings pending relating to
trade secrets, trademarks, service marks or other proprietary
information or materials of the Company, other than review of
pending applications for patents, and to the best of such
counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or others;
(iii) such counsel does not know of any material
contracts or other material documents relating to the
Company's proprietary information, other than those filed as
exhibits to the Registration Statement; and
(iv) the statements under the captions "Risk Factors -
Dependence on and Uncertainty of Protection of Patents and
Proprietary Rights" and "Business - Patents and Proprietary
Technology", insofar as such statements constitute a summary
of documents referred to therein or matters of law, are
accurate summaries and fairly and correctly present, in all
material respects, the information called for with respect to
such documents and matters and such counsel has no reason to
believe that the statements therein are untrue or that there
is an omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that such counsel may rely on
representations of the Company with respect to the factual
matters contained in such statements, provided that such
counsel shall state that nothing has come to the attention of
such counsel which leads them to believe that such
representations are not true and correct in all material
respects.
(i) The Representatives shall have received on each Closing
Date from Venable, Baetjer, Xxxxxx & Xxxxxxxxx, L.L.P., FDA
counsel for the Company, an opinion addressed to the
Representatives and dated such Closing Date, to the effect that
such counsel has read the portions of the Registration Statement
and the Prospectus headed: "Risk Factors - Government Regulation;
No Assurance of Regulatory Approval", "Risk Factors - Uncertainty
Related to Health Care Reform Measures and Reimbursement",
"Business - Government Regulation" and "Business - Product
Liability" (collectively, the "Regulatory Portion"), that the
statements under such captions, insofar as such statements
constitute a summary of matters of law, are accurate summaries and
fairly and correctly present, in all material respects, the
information called for with respect to such matters and such
-20-
counsel has no reason to believe that the statements therein are
untrue or that there is an omission to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that such counsel may
rely on representations of the Company with respect to the factual
matters contained in such statements, provided that such counsel
shall state that nothing has come to the attention of such counsel
which leads them to believe that such representations are not true
and correct in all material respects.
(j) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the
Representatives and their counsel and the Underwriters shall have
received from Xxxx and Xxxx a favorable opinion, addressed to the
Representatives and dated such Closing Date, with respect to the
Shares, the Registration Statement and the Prospectus, and such
other related matters, as the Representatives may reasonably
request, and the Company shall have furnished to Xxxx and Xxxx
such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(k) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives, and dated
such Closing Date, of an executive officer of the Company to the
effect that the signer of such certificate has reviewed and
understands the provisions of Section 517.075 of the Florida
Statutes, and represents that the Company has complied, and at all
times will comply, with all provisions of Section 517.075 and
further, that as of such Closing Date, neither the Company nor any
of its affiliates does business with the government of Cuba or
with any person or affiliate located in Cuba.
6. COVENANTS OF THE COMPANY.
(A) The Company covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form
approved by the Representatives and file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later
than the Commission's close of business on the second
business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act, and
shall promptly advise the Representatives (i) when any
amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or
for any additional information, (iii) of the prevention or
suspension of the use of any preliminary prospectus or the
-21-
Prospectus or of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding
for that purpose and (iv) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose. The Company shall not file any amendment of the
Registration Statement or supplement to the Prospectus unless
the Company has furnished the Representatives a copy for its
review prior to filing and shall not file any such proposed
amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to
prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act
and the Rules, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the
light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act
or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the second sentence of
paragraph (a) of this Section 6(A), an amendment or
supplement which shall correct such statement or omission or
an amendment which shall effect such compliance.
(c) The Company shall make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of
the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's
fiscal year), an earning statement (which need not be
audited) of the Company, covering such 12-month period, which
shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives
and counsel for the Underwriters, without charge, signed
copies of the Registration Statement (including all exhibits
thereto and amendments thereof), and to each other
Underwriter a copy of the Registration Statement (without
including all exhibits thereto and all amendments thereof),
and, so long as delivery of a prospectus by an underwriter or
dealer may be required by the Securities Act or the Rules, as
-22-
many copies of any preliminary prospectus and the Prospectus
and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify
the Shares for offer and sale under the laws of such
jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required
for the distribution of the Shares; provided, however, that
the Company shall not be required in connection therewith, as
a condition thereof, to qualify as a foreign corporation or
to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business
in any jurisdiction.
(f) For a period of five years after the date of this
Agreement, the Company shall supply to the Representatives
and to each other Underwriter who may so request in writing,
copies of such financial statements and other periodic and
special reports as the Company may from time to time
distribute generally to the holders of any class of its
capital stock and to furnish to the Representatives a copy of
each annual or other report it shall be required to file with
the Commission (including the Report on Form SR required by
Rule 463 of the Rules).
(g) Without the prior written consent of the
Representatives, for a period of 180 days after the date of
this Agreement, the Company shall not issue, sell or register
with the Commission (other than on Form S-8 or on any
successor form), or otherwise dispose of, directly or
indirectly, any equity securities of the Company (or any
securities convertible into or exercisable or exchangeable
for equity securities of the Company), except for the
issuance of the Shares pursuant to the Registration
Statement, and the issuance of shares pursuant to the
Company's existing stock option plan or bonus plan.
(h) On or before completion of this offering, the
Company shall make all filings required under applicable
securities laws and by the Nasdaq National Market (including
any required registration under the Exchange Act).
(i) Without the prior written consent of Xxxxxxxxxxx,
for a period of 180 days after the date of this Agreement,
the Company shall not, by amending, terminating or waiving
the agreement between the Locked-up Holder and the Company
described in Section 4(p) or otherwise, permit any Locked-up
Holder to offer for sale, sell, distribute, grant any option
-23-
for the sale of, or otherwise dispose of, directly or
indirectly, any Shares of Common Stock (or any securities
convertible into, exercisable for, or exchangeable for any
Shares of Common Stock.
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs
and expenses incident to the public offering of the Shares and the
performance of the obligations of the Company under this Agreement
including those relating to: (i) the preparation, printing, filing
and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all
amendments and supplements to the Registration Statement and the
Prospectus, and the printing, filing and distribution of this
Agreement; (ii) the preparation and delivery of certificates for
the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred
to in Section 6(A)(e), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with
such registration and qualification and the preparation,
distribution and shipment of preliminary and supplementary Blue
Sky memoranda; (iv) the furnishing (including costs of shipping
and mailing) to the Representatives and to the Underwriters of
copies of each preliminary prospectus, the Prospectus and all
amendments or supplements to the Prospectus, and of the several
documents required by this Section to be so furnished, as may be
reasonably requested for use in connection with the offering and
sale of the Shares by the Underwriters or by dealers to whom
Shares may be sold; (v) the filing fees of the National
Association of Securities Dealers, Inc. in connection with its
review of the terms of the public offering; (vi) the furnishing
(including costs of shipping and mailing) to the Representatives
and to the Underwriters of copies of all reports and information
required by Section 6(A)(f); (vii) inclusion of the Shares for
quotation on the Nasdaq National Market; and (viii) all transfer
taxes, if any, with respect to the sale and delivery of the Shares
by the Company to the Underwriters. Subject to the provisions of
Section 9, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement
is terminated, all costs and expenses incident to the performance
of the obligations of the Underwriters under this Agreement not
payable by the Company pursuant to the preceding sentence,
including, without limitation, the fees and disbursements of
counsel for the Underwriters.
-24-
7. Indemnification.
(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
Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages and liabilities, joint or
several (including any reasonable investigation, legal and
other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that
such indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising
from the sale of the Shares to any person by such Underwriter
if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary
prospectus, the Registration Statement or the Prospectus, or
such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the
Company by the Representatives on behalf of any Underwriter
specifically for use therein. This indemnity agreement will
be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, each person, if
any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act,
each director of the Company, and each officer of the Company
who signs the Registration Statement, to the same extent as
the foregoing indemnity from the Company to each Underwriter,
but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission
which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto, contained in the last
-25-
paragraph relating to stabilization on the inside front cover
page of the Prospectus, the concession and reallowance
figures appearing under the caption "Underwriting" in the
Prospectus and in the last sentence of the third full
paragraph under the caption "Underwriting" in the Prospectus
relating to the exercise of discretionary authority by the
Underwriters; provided, however, that the obligation of each
Underwriter to indemnify the Company (including any
controlling person, director or officer thereof) shall be
limited to the net proceeds received by the Company from such
Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt
of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section,
notify each such indemnifying party of the commencement of
such action, suit or proceeding, enclosing a copy of all
papers served. No indemnification provided for in Section
7(a) or 7(b) shall be available to any party who shall fail
to give notice as provided in this Section 7(c) if the party
to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by
the failure to give such notice but the omission so to notify
such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability that it
may have to any indemnified party for contribution or
otherwise than under this Section. In case any such action,
suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and the
approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided
below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel
by such indemnified party has been authorized in writing by
the indemnifying parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of
-26-
interest between the indemnifying parties and the indemnified
party in the conduct of the defense of such action (in which
case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying parties shall
not have employed counsel to assume the defense of such
action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and
expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be
liable for any settlement of any action, suit, proceeding or
claim effected without its written consent.
8. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the
indemnification provided for in Section 7(a) is due in accordance
with its terms but for any reason is held to be unavailable from
the Company, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any
contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the
meaning of the Securities Act, officers of the Company who signed
the Registration Statement and directors of the Company, who may
also be liable for contribution) to which the Company and one or
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the
offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in
Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the
relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters
shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but
before deducting expenses) received by the Company, as set forth
in the table on the cover page of the Prospectus, bear to (y) the
underwriting discounts received by the Underwriters, as set forth
in the table on the cover page of the Prospectus. The relative
fault of the Company or the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact related to information
supplied by the Company or the Underwriters and the parties'
-27-
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section
8, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for
any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, and (ii) the
Company shall be liable and responsible for any amount in excess
of such underwriting discount; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person,
if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as such Underwriter,
and each person, if any, who controls the Company within the
meaning of the Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject
in each case to clauses (i) and (ii) in the immediately preceding
sentence of this Section 8. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which
a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such
party or parties from whom contribution may be sought shall not
relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have hereunder or
otherwise than under this Section. No party shall be liable for
contribution, with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 8 are several
in proportion to their respective underwriting commitments and not
joint.
9. TERMINATION. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the
Representatives by notifying the Company at any time
(a) in the absolute discretion of the Representatives
at or before any Closing Date: (i) if on or prior to such
date, any domestic or international event or act or
-28-
occurrence has materially disrupted, or in the opinion of the
Representatives will in the future materially disrupt, the
securities markets; (ii) if there has occurred any new
outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the
judgment of the Representatives, inadvisable to proceed with
the offering; (iii) if there shall be such a material adverse
change in general financial, political or economic conditions
or the effect of international conditions on the financial
markets in the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impracticable
to market the Shares; (iv) if trading in the Shares has been
suspended by the Commission or trading generally on the New
York Stock Exchange, Inc., on the American Stock Exchange,
Inc. or on the Nasdaq National Market has been suspended or
limited, or minimum or maximum ranges for prices for
securities shall have been fixed, or maximum ranges for
prices for securities have been required, by said exchanges
or by order of the Commission, the National Association of
Securities Dealers, Inc., or any other governmental or
regulatory authority; or (v) if a banking moratorium has been
declared by any state or Federal authority, or
(b) at or before any Closing Date, that any of the
conditions specified in Section 5 shall not have been
fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, except as set forth in Section 6(B), the Company shall
not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if
this Agreement is terminated by the Representatives or the
Underwriters because of any failure, refusal or inability on the
part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by
them in connection with the proposed purchase and sale of the
Shares or in contemplation of performing their obligations
hereunder and (z) no Underwriter who shall have failed or refused
to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this
Agreement, shall be relieved of liability to the Company or to the
other Underwriters for damages occasioned by its failure or
refusal.
-29-
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail (other than for a reason sufficient to
justify the cancellation or termination of this Agreement under
Section 9) to purchase on any Closing Date the Shares agreed to be
purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other
arrangements as the Representatives may deem advisable or one or
more of the remaining Underwriters may agree to purchase such
Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this
Agreement. If no such arrangements have been made by the close of
business on the business day following such Closing Date,
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed
10% of the Shares that all the Underwriters are obligated to
purchase on such Closing Date, then each of the nondefaulting
Underwriters shall be obligated to purchase such Shares on
the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the
maximum number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this
Section 10 by more than one-ninth of such number of Shares
without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10%
of the Shares that all the Underwriters are obligated to
purchase on such Closing Date, then the Company shall be
entitled to an additional business day within which it may,
but is not obligated to, find one or more substitute
underwriters reasonably satisfactory to the Representatives
to purchase such Shares upon the terms set forth in this
Agreement.
In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a
period of not more than five business days in order that necessary
changes and arrangements (including any necessary amendments or
supplements to the Registration Statement or Prospectus) may be
effected by the Representatives and the Company. If the number of
Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing
Date, and none of the nondefaulting Underwriters or the Company
shall make arrangements pursuant to this Section within the period
stated for the purchase of the Shares that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate
with respect to the Shares to be purchased on such Closing Date
-30-
without liability on the part of any nondefaulting Underwriter to
the Company and without liability on the part of the Company,
except in both cases as provided in Sections 6(B), 7, 8 and 9.
The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company or to the
nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for
all purposes of this Agreement.
11. MISCELLANEOUS. The respective agreements,
representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement shall remain in full force and
effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of the officers, directors
or controlling persons referred to in Sections 7 and 8 hereof, and
shall survive delivery of and payment for the Shares. The
provisions of Sections 6(B), 7, 8 and 9 shall survive the
termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters, or the Company, and
directors and officers of the Company, and their respective
successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser of Shares
from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if
subsequently confirmed in writing, (a) if to the Representatives,
c/o Oppenheimer & Co., Inc., Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx X. Xxxxxxx, and
(b) if to the Company, to its agent for service as such agent's
address appears on the cover page of the Registration Statement.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard
to principles of conflict of laws.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
-31-
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
PROGENICS PHARMACEUTICALS, INC.
By _____________________________
Name:
Title:
Confirmed:
XXXXXXXXXXX & CO., INC.
VECTOR SECURITIES INTERNATIONAL, INC.
Acting severally on behalf of
themselves and as Representatives
of the several Underwriters named
in Schedule I annexed hereto
XXXXXXXXXXX & CO., INC.
By:_________________________________
Name:
Title:
VECTOR SECURITIES INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
-32-
SCHEDULE I
Number of
Firm Shares to
Name Be Purchased
---- --------------
Xxxxxxxxxxx & Co., Inc.
Vector Securities International, Inc.
_______________________
________
Total
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