EXHIBIT 1.1
2,000,000 Shares
PROGENICS PHARMACEUTICALS, INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
_________, 1999
CIBC World Markets Corp.
BancBoston Xxxxxxxxx Xxxxxxxx
Prudential Securities Incorporated
Xxxxxx Xxxxxx Xxxxxxxx & Co.
Punk, Xxxxxx & Company, L.P.
c/o CIBC World Markets Corp.
CIBC 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 wire transfer of immediately available funds to the
Company, shall take place at the offices of Xxxxx Xxxxxxxxxx LLP, 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
wire transfer of immediately available funds to the Company shall take place at
the offices of Xxxxx Xxxxxxxxxx LLP 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."
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-3 (No. 333- ), 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 or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules. The term "Registration
Statement" as used in this Agreement means the initial registration statement
(including all exhibits, financial schedules and information deemed to be a part
of the Registration Statement through incorporation by reference or otherwise),
as amended at the time and on the date it becomes effective (the "Effective
Date") including the information (if any) deemed to be part thereof at the time
of effectiveness pursuant to Rule 430A of the Rules, and as thereafter amended
by post-effective amendments. If the Company has filed an abbreviated
registration statement to register additional Shares pursuant to Rule 462(b)
under the Rules (the "462(b) Registration Statement") then any reference herein
to the Registration Statement shall also be deemed to include such 462(b)
Registration Statement. The term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement at the time of
effectiveness or, if Rule 430A of the Rules is relied on, the term Prospectus
shall also include the final prospectus 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).
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"). 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, none of the representations and
warranties in this paragraph 4(a) shall apply to statements in, or
omissions from, the Registration Statement or the Prospectus made in
reliance upon, and in conformity with, information herein or otherwise
furnished in writing by the Representatives on behalf of the several
Underwriters for use in the Registration Statement or the Prospectus.
With respect to the preceding sentence, the Company acknowledges that
the only information furnished in writing by the Representatives on
behalf of the several Underwriters for use in the Registration or the
Prospectus is the paragraph with respect to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the
Prospectus.
(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement of suspending or preventing
the use of the Prospectus has been issued and no proceedings for that
purpose have been instituted or are threatened under the Securities
Act. Any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) of the Rules has been or will be made in the
manner and within the time period required by such Rule 424(b).
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they were filed
with the Commission, complied in all material respects with the
requirements of the Exchange Act and, when read together and with the
other information in the Registration Statement and the Prospectus, do
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except to the extent that any
statements in such documents have been superseded by statements
specifically set forth in the Registration Statement and the
Prospectus.
(d) 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 financial
information of the Company included therein 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. The summary
and selected financial data included in the Prospectus present fairly
the information shown therein as at the respective dates and for the
respective periods specified and the summary and selected financial
data have been presented on a basis consistent with the consolidated
financial statements so set forth in the Prospectus and other financial
information.
(e) PricewaterhouseCoopers 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.
(f) 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 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 (a "Material Adverse Effect"); 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).
(g) 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.
(h) 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.
(i) 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. The Company has not
received any notice of and is not aware of any infringement of any of
the Company's Intangibles by any third party which could have a
Material Adverse Effect.
(j) 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
(collectively, "Liens"), except as described in the Registration
Statement and the Prospectus and except to the extent that the failure
to have such good title or the existence of any such Lien does not and
will not have a Material Adverse Effect.
(k) 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 reasonable 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.
(l) 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 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.
(m) There is no document or contract of a character required
by the Securities Act or the Rules 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. 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.
(n) 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.
(o) 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 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 to the extent that the
Company has obtained consents or waivers which are in full force and
effect.
(p) 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 right, right of first refusal or first
offer 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 or binding 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.
(q) 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 90 days after the date of this
Agreement. Each stockholder, director and executive officer of the
Company (the "Locked-Up Holders) has delivered to the representatives
his enforceable written lock-up agreement in the form attached to this
Agreement (the "Lock-Up Agreements").
(r) 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 (i) 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 (ii) 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.
(s) 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. The Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its principal suppliers or contractors which would have a Material
Adverse Effect. The Company is not aware of any threatened or pending
litigation between the Company and any of its executive officers which,
if adversely determined,
could have a Material Adverse Effect and has no reason to believe that
such officers will not remain in the employment of the Company.
(t) 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.
(u) 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.
(v) 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. There are no tax audits
or investigations pending, which if adversely determined would have a
Material Adverse Effect; nor are there any material proposed additional
tax assessments against the Company.
(w) The Shares have been duly authorized for quotation on
Nasdaq National Market.
(x) The books, records and accounts of the Company accurately
and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the
Company. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(y) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the business in which it is engaged or proposes to engage
after giving effect to the transactions described in the Prospectus;
all policies of insurance fidelity or surety bonds insuring the Company
or its
business, assets, employees, officers and directors against such losses
and risk are in full force and effect; the Company is in compliance
with the terms of such policies and instruments in all material
respects; and the Company has no reason to believe that it will not be
able to renew its existing insurance coverage against such losses and
risk as and when such coverage expires or to obtain similar insurers as
may be necessary to continue its business at a cost that would not have
a Material Adverse Effect. The Company has not been denied any
insurance coverage against such losses and risk which it has sought or
for which it has applied.
(z) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated required to be obtained or performed
by the Company (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriters
under the state securities or Blue Sky laws) has been obtained or made
and is in full force and effect.
(aa) There are no affiliations with the NASD among the
Company's officers, directors or, to the best of the knowledge of the
Company, any five percent or greater stockholder of the Company, except
as set forth in the Registration Statement or otherwise disclosed in
writing to the Representatives.
(bb) (i) The Company is in compliance in all material respects
with all rules, laws and regulation relating to the use, treatment,
storage and disposal of toxic substances and protection of health or
the environment ("Environmental Law") which are applicable to its
business; (ii) the Company has not received any notice from any
governmental authority or third party of an asserted claim under
Environmental Laws; (iii) the Company has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and is in compliance with
all terms and conditions of any such permit, license or approval; (iv)
to the Company's knowledge, no facts currently exist that will require
the Company to make future material capital expenditures to comply with
Environmental Laws; and (v) no property which is or has been owned,
leased or occupied by the Company has been designated as a Superfund
site pursuant to the Comprehensive Environmental Response, Compensation
of Liability Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.)
or otherwise designated as a contaminated site under applicable state
or local law. The Company has
not been named as a "potentially responsible party" under the CER, CLA
1980.
(cc) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which the Company identifies and evaluates associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company
has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect.
(dd) Neither the Company or any other person associated with
or acting on behalf of the Company including, without limitation, any
director, officer, agent or employee of the Company has not, directly
or indirectly, while acting on behalf of the Company (i) used any
corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity; (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any other unlawful
payment.
(ee) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of proceeds thereof
as described in the Prospectus, will not be an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(ff) The Company has reviewed its operations to evaluate the
extent to which the business or operations of the company will be
affected by the Year 2000 Problem (that is, any significant risk that
computer hardware or software applications used by the Company will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000); as a result of such
review, (i) the Company has no reason to believe, and does not believe,
that (A) there are any issues related to the Company's preparedness to
address the Year 2000 Problem that are of a character required to be
described or referred to in the Registration Statement or Prospectus
which have not been accurately described in the Registration Statement
or Prospectus and (B) the Year 2000 Problem will have a material
adverse effect on the business or
results of operations of the Company, or result in any material loss or
interference with the business or operations of the Company, and (ii)
the Company reasonably believes, after due inquiry, that the suppliers,
vendors, customers or other material third parties used or served by
the Company are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address Year 2000
by a supplier, vendor, customer or material third party 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.
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)(i) 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 (i) 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 and (ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and to the best of their
knowledge, no proceedings for that purpose have been instituted or are
pending under the Securities Act.
(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 PricewaterhouseCoopers 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 LLP, 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 incorporated 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.
(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 to enter
into, deliver and perform this Agreement and to issue and
sell the Shares.
(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
right, right of first refusal or first offer or other
similar right set forth in the Company's Certificate of
Incorporation, as amended, or in certain agreements
specified in such opinion or as provided by the Delaware
General Corporation Law (with such exceptions as may be
acceptable to the Representatives), 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, fully paid
and nonassessable and none of them will have been issued
in violation of any preemptive right, right of first
refusal or first offer or other similar right set forth in
the Company's Certificate of Incorporation, as amended, or
in certain agreements specified in such opinion or as
provided by the Delaware General Corporation Law (with
such exceptions as may be acceptable to the
Representatives). To 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
or binding 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 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 90 days after the Effective Date, except
for those rights which have been validly waived.
(v) Each of the Lock-Up Agreements executed by the
Company's stockholders, directors and officers has been
duly and validly delivered by such persons and constitutes
the legal, valid and binding obligation of each such
person enforceable against each such person in accordance
with its terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by
general equitable principles.
(vi) 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 and this
Agreement constitutes the legal, valid and binding
obligation of the Company enforceable against the Company
and the Parent in accordance with their respective terms
except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally
and by general equitable principles.
(vii) 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 Certificate of Incorporation, as amended, or
by-laws of the Company.
(viii) 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.
(ix) To 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.
(x) The statements in the Prospectus under the
captions ["RISK FACTORS - IF WE LOSE OUR COLLABORATIVE
PARTNERS..."; "RISK FACTORS - IF SUFFICIENT QUANTITIES OF
THE RAW MATERIALS NEEDED TO MAKE OUR PRODUCTS ARE NOT
AVAILABLE...; "RISK FACTORS - WE ARE DEPENDENT UPON THIRD
PARTIES...;" "RISK FACTORS - WE LACK SALES AND MARKETING
EXPERTISE..."; "RISK FACTORS - WE ARE DEPENDENT ON OUR
PATENTS AND PROPRIETARY RIGHTS..."; "RISK FACTORS -
ANTI-TAKEOVER PROVISIONS MAY DISCOURAGE HOSTILE BIDS...";
"BUSINESS - LICENSES"; "BUSINESS - CORPORATE
COLLABORATIONS"; "BUSINESS - GOVERNMENT GRANTS AND
CONTRACTS" (OTHER THAN THE FIRST SENTENCE THEREOF);
"BUSINESS -- PATENTS AND PROPRIETARY TECHNOLOGY" (TO THE
EXTENT SUCH SECTION DESCRIBES THE COLUMBIA LICENSE
AGREEMENT (AS DEFINED BELOW), THE COLUMBIA LICENSED
PATENTS (AS DEFINED BELOW) AND THE XXXXX-XXXXXXXXX LICENSE
AGREEMENT (AS DEFINED BELOW))]; "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 by the Securities Act and the Rules
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.
(xi) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements
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.
(xii) The Registration Statement has become
effective under the Securities Act, and, to 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.
(xiii) All necessary corporate action has been
duly and validly taken by the Company to authorize the
execution, delivery and performance of (A) 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"), (B) the License Agreement dated November 17,
1994 between the Company and Xxxxx-Xxxxxxxxx Institute for
Cancer Research (the "Xxxxx-Xxxxxxxxx License Agreement"),
(C) the QS-21 License and Supply Agreement dated August
31, 1995 between the Company and Aquila Biopharmaceuticals
Inc. (the "Aquila QS-21 License Agreement") and the gp120
Sublicense Agreement dated March 17, 1995 between the
Company and Aquila Biopharmaceuticals Inc. (the "Aquila
gp120 Sublicense Agreement"), (D) the License Agreement
dated June 25, 1996 between the Company and The Regents of
the University of California (the "UCAL License
Agreement") and (E) the Joint Development and Master
License Agreement dated April 15, 1997 between the Company
and Xxxxxxx-Xxxxx Squibb Company, and each of the
agreements related thereto or contemplated thereby
(collectively, the "BMS License Agreements"). [ADD FURTHER
MATERIAL LICENSES AND COLLABORATIVE AGREEMENTS.] The
Columbia License Agreement, the Xxxxx-Xxxxxxxxx License
Agreement, the Aquila QS-21 License Agreement, the Aquila
gp120 Sublicense Agreement, the UCAL License Agreement and
the BMS License Agreements have been duly and validly
executed and delivered by the Company.
(xiv) To such counsel's knowledge, the Company has
not received any notice of infringement or of conflict
with asserted rights of others with respect to any
patents, patent applications, licenses or know-how,
proprietary techniques, including processes and
substances, 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.
(xv) To 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 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 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 LLP, 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 - WE ARE DEPENDENT UPON OUR PATENTS AND PROPRIETARY RIGHTS...";
"BUSINESS - LICENSES" 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:
(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 need express 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 need
express 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 need express 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 need express 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 need express no opinion), other than those
filed as exhibits to the Registration Statement; and
(iv) the statements under the captions ["RISK FACTORS - WE
ARE DEPENDENT UPON OUR PATENTS AND PROPRIETARY RIGHTS...";
"BUSINESS - LICENSES" AND "BUSINESS - PATENTS AND PROPRIETARY
TECHNOLOGY"] (except with respect to those statements that describe
the Columbia License Agreement and the Columbia Licensed Patents as
to which such counsel need express no opinion), insofar as such
statements constitute a summary of documents referred to therein or
matters of law, are accurate summaries and fairly and correctly
present, in all material respects, the information called for with
respect to such documents and matters and such counsel has no
reason to believe that the statements therein are untrue or that
there is an omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
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 Company's ganglioside conjugate
vaccine technology and products and has read the portions of the Registration
Statement and the Prospectus headed: ["RISK FACTORS - WE ARE DEPENDENT UPON OUR
PATENTS AND PROPRIETARY RIGHTS..."; "BUSINESS LICENSES" 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 (the "Conjugate Vaccines"):
(i) 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 make, use,
import, offer for sale and sell the Company's Conjugate Vaccines
described in the Prospectus and as presently used by the Company or
as proposed to be used and sold by the Company as described in the
Prospectus. To 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, 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 not licensed by the Company and which are
infringed by the Company as a result of the Company's
making, using, importing, offering for sale or selling its
Conjugate Vaccine;
(ii) to the best of such counsel's knowledge, there are no
legal or governmental proceedings pending relating to proprietary
information or materials of the Company, other than review of
pending applications for patents, and to the best of such counsel's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or others; and
(iii) the statements under the captions ["RISK FACTORS -
WE ARE DEPENDENT UPON OUR PATENTS AND PROPRIETARY RIGHTS...";
"BUSINESS - LICENSES" AND "BUSINESS - PATENTS AND PROPRIETARY
TECHNOLOGY"], insofar as such statements constitute a summary of
patents or of law, are accurate summaries and fairly and correctly
present, in all material respects, the information called for with
respect to such matters and such counsel has no reason to believe
that the statements therein are untrue or that there is an omission
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however,
that such counsel may rely on representations of the Company 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: ["BUSINESS - GOVERNMENT REGULATION"]
(collectively, the "Regulatory Portion"), that the statements under such
captions, insofar as such statements constitute a summary of matters of law
pertaining to the regulation of the Company's business by the Food and Drug
Administration, are accurate summaries and fairly and correctly present, in all
material respects, the information called for with respect to such matters and
such counsel has no reason to believe that the statements therein are untrue or
that there is an omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that such counsel may rely on representations of the Company 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 LLP 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 LLP such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
6. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(i) 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.
(ii) The Company shall promptly advise the Representatives
(A) when any amendment to the Registration Statement shall have
become effective, (B) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for
any additional information, (C) of the prevention or suspension of
the use of any preliminary prospectus or the 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 (D) 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.
(iii) 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 (ii) of
this Section 6(a), an amendment or supplement which shall correct
such statement or omission or an amendment which shall effect such
compliance.
(iv) 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 earnings 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.
(v) 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 many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as
the Representatives may reasonably request.
(vi) 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.
(vii) 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).
(viii) Without the prior written consent of CIBC World
Markets Corp., for a period of 90 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 (A) the Shares pursuant to the Registration
Statement, (B) shares of the Company's Common Stock pursuant to the
Company's existing stock option plan, equity compensation plan or
currently outstanding warrants, or (C) shares of Common Stock or
securities convertible into or exercisable or exchangeable for
equity securities of the Company in connection with licensing,
research and development or other collaborative arrangements,
provided that the transferee of any securities described in this
clause (C) delivers to the Representatives a lock-up agreement of
the type and on the terms described in paragraph 4(q) of this
Agreement. In the event that during this period, (i) any shares are
issued pursuant to the Company's existing stock option plan or
bonus plan that are exercisable during such 90 day period or (ii)
any registration is effected on Form S-8 or on any successor form
relating to shares that are exercisable during such 90 period, the
Company shall obtain the written agreement of such grantee or
purchaser or holder of such registered securities that, for a
period of 90 days after the date of this Agreement, such person
will not, without the prior written consent of CIBC World Markets
Corp., 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 such
person.
(ix) On or before completion of this offering, the Company
shall make all filings required under applicable federal securities
laws and by the Nasdaq National Market (including any required
registration under the Exchange Act).
(x) Without the prior written consent of CIBC World
Markets Corp., for a period of 90 days after the date of this
Agreement, the Company shall not, by amending, terminating or
waiving any agreement between the Locked-up Holder and the Company
described in Section
4(q) or otherwise, permit any Locked-up Holder to offer for sale,
sell, distribute, grant any option 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).
(xi) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
(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)(vi), 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)(vii); (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.
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 (i) 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 in any Blue Sky
application or other information or other documents executed by the
Company filed in any state or other jurisdiction to qualify any or
all of the Shares under the securities laws thereof (any such
application, document or information being hereinafter referred to
as a "Blue Sky Application") 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, (ii) in whole or in part upon any breach of
the representations and warranties set forth in Section 4 hereof,
or (iii) in whole or in part upon any failure of the Company to
perform any of its obligations hereunder or under law; 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 thereto, or in any
Blue Sky Application 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. Notwithstanding the
foregoing, the Company shall not be liable to any Underwriter with
respect to any preliminary prospectus or any preliminary prospectus
supplement, to the extent that any such loss, claim, damage or
liability of any Underwriter results solely from an untrue
statement of a material fact contained in, or the omission of a
material fact from, such preliminary prospectus, which untrue
statement or omission was corrected in the Prospectus, if the
Company shall sustain the burden of proving that (i) the
Underwriter sold Shares to the person alleging such loss, claim,
damage or liability without sending or giving or making available
electronically, at or prior to the written
confirmation of such sale, a copy of the Prospectus to such person,
(ii) delivery of a Prospectus was required under the Securities
Act, and (iii) the Company delivered to the Underwriter copies of
such Prospectus in such quantities as it shall have reasonably
requested.
(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 (i) concession and
reallowance figures appearing under the caption "Underwriting" and
(ii) the stabilization information contained under the caption
"Underwriting" in the Prospectus; 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 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, which consent shall not be unreasonably withheld or
delayed.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b), then each indemnifying party 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 any person entitled hereunder
to contribution from any person who may be liable for contribution) to which the
indemnified party 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' 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 Underwriters' 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 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; (v) if a
banking moratorium has been declared by any state or Federal
authority, or (vi) if, in the judgment of the Representatives,
there has occurred a Material Adverse Effect; 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,
the Company shall not be under any liability to any Underwriter except as set
forth in Section 6(b), 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.
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 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 CIBC World Markets Corp., World
Financial Center, New York, New York 10281 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.
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
PROGENICS PHARMACEUTICALS,
INC.
By:
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
Confirmed:
CIBC WORLD MARKETS CORP.
BANCBOSTON XXXXXXXXX XXXXXXXX
PRUDENTIAL SECURITIES INCORPORATED
XXXXXX XXXXXX XXXXXXXX & CO.
PUNK, XXXXXX & COMPANY, L.P.
Acting severally on behalf of itself and as
the representative of the several
Underwriters named in Schedule I
annexed hereto
By: CIBC World Markets Corp.
By:
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SCHEDULE I
NUMBER OF
FIRM SHARES TO
NAME BE PURCHASED
---- ------------
CIBC World Markets Corp.
BancBoston Xxxxxxxxx Xxxxxxxx
Prudential Securities Incorporated
Xxxxxx Xxxxxx Xxxxxxxx & Co.
Punk, Xxxxxx & Company, L.P.
TOTAL
Form of Lock-Up Agreement
-------------------------
October ___, 1999
CIBC World Markets Corp.
As Representatives of the
Several Underwriters
c/o CIBC World Markets Corp.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned is a shareholder of Progenics Pharmaceuticals, Inc.
(the "Company") and wishes to facilitate the public offering (the "Offering") of
Common Stock of the Company ("Common Stock") pursuant to a Registration
Statement on Form S-3 (the "Registration Statement") to be transmitted for
filing with the Securities and Exchange Commission on or about October __, 1999.
In consideration of the foregoing, and in order to induce you to
act as underwriters in the Offering, the undersigned hereby irrevocably agrees
that it will not, directly or indirectly, sell, offer, contract to sell,
transfer the economic risk of ownership in, make any short sale, pledge or
otherwise dispose of any Common Stock or any securities convertible into or
exchangeable or exercisable for or any other rights to purchase or acquire
Common Stock, whether now owned or hereinafter acquired by the undersigned or
with respect to which the undersigned has the power of disposition or beneficial
ownership, without the prior written consent of CIBC World Markets Corp. acting
alone, for a period commencing on the date of the execution hereof until the
expiration of 90 days after the date of the final prospectus relating to the
Offering.
The undersigned hereby waives any rights of the undersigned to sell
Common Stock or any other security issued by the Company pursuant to the
Registration Statement, and acknowledges and agrees that for a period commencing
on the date of execution hereof until the expiration of 90 days after the date
of the final prospectus relating to the Offering the undersigned has no right to
require the Company to register under the Securities Act of 1933, as amended,
such Common Stock or other securities issued by the Company and beneficially
owned by the undersigned.
The undersigned understands that the agreements of the undersigned
are irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns. The undersigned agrees and consents to
the entry of stop transfer instruments with the Company's transfer agent against
the transfer of Common Stock or other securities of the Company held by the
undersigned except in compliance with this agreement.
Very truly yours,
Dated:_______________________
__________________________________
(For entity print name)
By:_______________________________
(Signature)
Name:_____________________________
(Print name of signer)
Title:____________________________
(Print title of signing for entity)
