EXHIBIT 1.1
IMMTECH INTERNATIONAL, INC.
Common Stock
UNDERWRITING AGREEMENT
dated February 8, 2006
XXXXXX, XXXXX XXXXX, INCORPORATED
________________________________________________________________________________
Underwriting Agreement
February 8, 2006
Xxxxxx, Xxxxx Xxxxx, Incorporated
Attn: Xxxxxxxx Xxxxx, General Counsel
000 Xxxxx Xx., 0xx XX
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Introductory. Immtech International, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Xxxxxx, Xxxxx Xxxxx, Incorporated,
(the "Underwriter") an aggregate of 2,300,000 shares of its Common Stock, par
value $0.01 per share (the "Common Stock"). The 2,000,000 shares of Common Stock
to be sold by the Company are called the "Firm Shares." In addition, the Company
has granted to the Underwriter an option to purchase up to an additional 300,000
shares of Common Stock. The additional 300,000 shares to be sold by the Company
pursuant to such option are collectively called the "Optional Shares." The Firm
Shares and, if and to the extent such option is exercised, the Optional Shares
are collectively called the "Shares."
The Company hereby confirms its agreement with the Underwriter as follows:
SECTION 1. Representations and Warranties of the Company.
(a) Filing of the Registration Statement. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 333-130970), which contains a form
of prospectus to be used in connection with the public offering and sale of the
Shares. Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, and the documents incorporated by
reference in the prospectus contained in the registration statement at the time
such registration statement became effective, in the form in which it was
declared effective by the Commission under the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (collectively, the
"Securities Act"), and including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A, Rule 430B or Rule
430C under the Securities Act, or pursuant to the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder (collectively, the
"Exchange Act"), is called the "Registration Statement." Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act
is called the "Rule 462(b) Registration Statement," and from and after the date
and time of filing of the Rule 462(b) Registration Statement the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
Such prospectus, in the form first filed pursuant to Rule 424(b) under the
Securities Act after the date and time that this Agreement is executed and
delivered by the parties hereto (the "Execution Time"), or, if no filing
pursuant to Rule 424(b) under the Securities Act is required, the form of final
prospectus relating to the Shares included in the Registration Statement at the
effective date of the Registration Statement, is called the "Prospectus." All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, the Company's preliminary prospectus included in the
Registration Statement (each a "preliminary prospectus"), the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX"). Any reference herein to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such preliminary prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such preliminary prospectus or
Prospectus, as the case may be, under the Exchange Act and incorporated by
reference in such preliminary prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement.
(b) Compliance with Registration Requirements. The Registration Statement
has been declared effective by the Commission under the Securities Act. No stop
order preventing or suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement is in effect and no proceedings for
such purpose have been instituted or are pending or, to the best knowledge of
the Company, are contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all
material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical in content to the copy thereof
delivered to the Underwriter for use in connection with the offer and sale of
the Shares other than with respect to any artwork and graphics that were not
filed. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the time it became
effective and at all subsequent times prior to the date hereof, complied and
will comply in all material respects with the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus (including any Prospectus wrapper), as
amended or supplemented, as of its date and at all subsequent times (prior to
the date hereof), did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein, it being understood and agreed that the
only such information furnished by the Underwriter consists of the information
described as such in Section 8 hereof. There are no contracts or other documents
required to be described in the Prospectus or to be filed as exhibits to the
Registration Statement that have not been described or filed as required.
The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(c) Disclosure Package. The term "Disclosure Package" shall mean (i) to
the extent required, the preliminary prospectus, as amended or supplemented,
(ii) the issuer free writing prospectuses as defined in Rule 433 of the
Securities Act (each, an "Issuer Free Writing Prospectus"), if any, identified
in Schedule A hereto, and (iii) any other free writing prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part of
the Disclosure Package. As of 4:01 p.m. (Eastern time) on February 7, 2006, (the
"Initial Sale Time"), the Disclosure Package did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of the Underwriter consists of the
information described as such in Section 8 hereof.
(d) Company Not Ineligible Issuer. (i) At the time of filing the
Registration Statement and (ii) as of the date of the execution and delivery of
this Agreement (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405 of the Securities Act), without taking account of any
determination by the Commission pursuant to Rule 405 of the Securities Act that
it is not necessary that the Company be considered an Ineligible Issuer.
(e) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus
includes any information that conflicts with the information contained in the
Registration Statement, including any document incorporated by reference therein
that has not been superseded or modified. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing Prospectus based upon
and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists of the
information described as such in Section 8 hereof.
(f) Offering Materials Furnished to Underwriter. The Company has delivered
to the Underwriter five complete manually signed copies of the Registration
Statement and of each consent and certificate of experts filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits)
and preliminary prospectuses and the Prospectus, as amended or supplemented, in
such quantities and at such places as the Underwriter has reasonably requested.
(h) Distribution of Offering Material By the Company. The Company has not
distributed and will not distribute, prior to the later of each Subsequent
Closing Date (as defined below) and the completion of the Underwriter's
distribution of the Shares, any offering material in connection with the
offering and sale of the Shares other than a preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the
Underwriter or the Registration Statement.
(i) The Underwriting Agreement. This Agreement has been duly authorized
(to the extent applicable), executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
(j) Authorization of the Shares. The Shares to be purchased by the
Underwriter from the Company have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(k) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement except for such rights as have been
duly waived.
(l) No Material Adverse Change. Except as otherwise disclosed in the
Disclosure Package, subsequent to the respective dates as of which information
is given in the Disclosure Package: (i) there has been no material adverse
change, or any development that would reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations, whether or not arising from transactions in
the ordinary course of business, of the Company and its subsidiaries, considered
as one entity (any such change is called a "Material Adverse Change"); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.
(m) Independent Accountants. Deloitte & Touche, LLP, who have expressed
their opinion with respect to the financial statements (which term as used in
this Agreement includes the related notes thereto) filed with the Commission as
a part of the Registration Statement and included in the Disclosure Package and
the Prospectus, is an independent registered public accounting firm as required
by the Securities Act and the Exchange Act.
(n) Preparation of the Financial Statements. The financial statements
filed with the Commission as a part of or incorporated by reference in the
Registration Statement, and included or incorporated by reference in the
Disclosure Package and the Prospectus, present fairly the consolidated financial
position of the Company and its subsidiaries as of and at the dates indicated
and the results of their operations and cash flows for the periods specified.
Such financial statements comply as to form with the applicable accounting
requirements of the Securities Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting schedules are
required to be included or incorporated by reference in the Registration
Statement. The financial data set forth in each of the preliminary prospectus
and the Prospectus under the captions "Summary--Summary Consolidated Financial
and Operating Data" and "Capitalization" fairly present the information set
forth therein on a basis consistent with that of the audited financial
statements contained in the Registration Statement.
(o) Incorporation and Good Standing of the Company and its Subsidiaries.
Each of the Company and its subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and, in the case of the Company, to enter
into and perform its obligations under this Agreement. The Company and each of
its subsidiaries is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the aggregate,
result in a Material Adverse Change. All of the issued and outstanding capital
stock of each subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and is owned by the Company, directly or through
subsidiaries. The outstanding capital stock of each of the Company's
subsidiaries is free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit B or C, and the only significant subsidiaries of
the Company (as such term is defined in Rule 405 under the Securities Act) are
(i) Super Insight Limited, a British Virgin Islands company (100%); (ii) Immtech
Therapeutics Limited, a Hong Kong company (51%); (iii) Immtech Hong Kong
Limited, a Hong Kong company (100%); and (iv) Immtech Life Science Limited, a
Hong Kong company (100%).
(p) Capitalization and Other Capital Stock Matters. The authorized, issued
and outstanding capital stock of the Company is as set forth in the each of the
Disclosure Package and the Prospectus under the caption "Capitalization" (other
than for subsequent issuances, if any, pursuant to employee benefit plans
described in each of the Disclosure Package and the Prospectus or upon exercise
of outstanding options or warrants described in the Disclosure Package and
Prospectus, as the case may be). The Common Stock (including the Shares)
conforms in all material respects to the description thereof contained in the
each of the Disclosure Package and Prospectus. All of the issued and outstanding
shares of Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock were issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or any
of its subsidiaries other than those accurately described in the Disclosure
Package and the Prospectus. The description of the Company's stock option, stock
bonus and other stock plans or arrangements, and the options or other rights
granted thereunder, set forth or incorporated by reference in each of the
Disclosure Package and the Prospectus accurately and fairly presents the
information required to be shown with respect to such plans, arrangements,
options and rights.
(q) Quotation. The Shares have been approved for quotation on the American
Stock Exchange (the "AMEX") under the symbol "IMM."
(r) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or is in default (or, with the giving of
notice or lapse of time, would be in default) ("Default") under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound (including, without limitation, such
agreements and contracts filed as exhibits to the Registration Statement or to
which any of the property or assets of the Company or any of its subsidiaries is
subject (each, an "Existing Instrument")), except for such Defaults as would
not, individually or in the aggregate, result in a Material Adverse Change. The
Company's execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Disclosure Package and the
Prospectus (i) have been duly authorized by all necessary corporate action and
will not result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary. No consent, approval, authorization or other
order of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's execution,
delivery and performance of this Agreement and consummation of the transactions
contemplated hereby and by the Disclosure Package and the Prospectus, except the
registration under the Securities Act of the Common Stock and such as have been
obtained or made by the Company and are in full force and effect, from the AMEX,
applicable state securities or blue sky laws and from the National Association
of Securities Dealers, Inc. (the "NASD").
(s) No Integration with Previous Offerings. The sale of the Shares to the
Underwriter and the Underwriter's subsequent distribution of the Shares will
not, as a matter of all applicable securities law, integrate with previous
offerings in a manner so as to render the sales of the Shares, or any offerings
previously made by the Company, in violation of such applicable law. The Company
has reviewed its recent public and private offerings and has concluded that the
sale of Shares will not integrate with any past public or exempt private offer
and sale of the Company's securities.
(t) No Material Actions or Proceedings. Except as otherwise disclosed in
the Disclosure Package and the Prospectus, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, (ii) which has as the subject thereof any officer or director (in
such capacities) of, or property owned or leased by, the Company or any of its
subsidiaries or (iii) relating to environmental or discrimination matters, where
in any such case (A) there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company or such subsidiary and
(B) any such action, suit or proceeding would reasonably be expected to result
in a Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. No material labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the best of
the Company's knowledge, is threatened or imminent except for such disputes as
would not, individually or in the aggregate, result in a Material Adverse
Change.
(u) Intellectual Property Rights. The Company and its subsidiaries own or
possess sufficient trademarks, trade names, patent rights, copyrights, domain
names, licenses, approvals, trade secrets and other similar rights
(collectively, "Intellectual Property Rights") reasonably necessary to conduct
their businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries has received any notice of
infringement or conflict with asserted Intellectual Property Rights of others,
which infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change. The Company is not a party to or bound by
any options, licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required to be set forth in the
Disclosure Package and the Prospectus and are not described in all material
respects. None of the technology employed by the Company has been obtained or is
being used by the Company in violation of any contractual obligation binding on
the Company or, to the Company's knowledge, any of its officers, directors or
employees or otherwise in violation of the rights of any persons.
(v) PTO Applications. The Company has duly and properly filed or caused to
be filed with the United States Patent and Trademark Office (the "PTO") and
applicable foreign and international patent authorities all patent applications
for the patents owned by the Company (the "Company Patent Applications"). To the
knowledge of the Company, the Company has complied with the PTO's duty of candor
and disclosure for the Company Patent Applications and has made no material
misrepresentation in the Company Patent Applications. To the knowledge of the
Company, the Company has complied with the duty of candor and disclosure for the
Company Patent Applications pending in countries outside the United States. The
Company is not aware of any information material to a determination of
patentability regarding the Company Patent Applications not called to the
attention of the PTO or similar foreign authority. The Company is not aware of
any information not called to the attention of the PTO or similar foreign
authority which would preclude the grant of a patent for the Company Patent
Applications. The Company has no knowledge of any information which would
preclude the Company from having clear title to the Company Patent Applications.
(w) All Necessary Permits, etc. Except as otherwise disclosed in the
Disclosure Package and the Prospectus or except as would not result in a
Material Adverse Change, the Company and each subsidiary possess such valid and
current certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and neither the Company nor any subsidiary has received
any notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Change.
(x) Tests and Preclinical and Clinical Studies. The Company has operated
and currently is in compliance with all applicable rules and regulations of the
FDA or any other federal, state, local or foreign governmental body exercising
comparable authority, except where the failure to so operate or be in compliance
would not have a Material Adverse Effect. The tests and preclinical and clinical
studies conducted by or, to the Company's knowledge, on behalf of the Company
that are described in the Registration Statement and the Prospectus were and, if
still pending, are being, conducted in all material respects in accordance with
the protocols submitted to the FDA or any foreign government exercising
comparable authority, procedures and controls pursuant to, where applicable,
accepted professional and scientific standards, and all applicable laws and
regulations; the descriptions of the tests and preclinical and clinical studies,
and results thereof, conducted by or, to the Company's knowledge, on behalf of
the Company contained in the Registration Statement and the Prospectus are
accurate and complete in all material respects; the Company is not aware 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
the Prospectus; and the Company has not received any written notice or
correspondence from the FDA or any foreign, state or local governmental body
exercising comparable authority requiring the termination, suspension, or
clinical hold of any tests or preclinical or clinical studies, or such written
notice or correspondence from any Institutional Review Board or comparable
authority requiring the termination or suspension of a clinical study, conducted
by or on behalf of the Company, which termination, suspension, or clinical hold
would reasonably be expected to have a Material Adverse Effect.
(y) Title to Properties. The Company and each of its subsidiaries have
good and marketable title to all the properties and assets reflected as owned in
the financial statements referred to in Section 1(n) above (or elsewhere in the
Disclosure Package and the Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, claims and other
defects, except such as would not reasonably be expected to result in a Material
Adverse Change. The real property, improvements, equipment and personal property
held under lease by the Company or any subsidiary are held under valid and
enforceable leases, with such exceptions as would not reasonably be expected to
result in a Material Adverse Change.
(z) Tax Law Compliance. The Company and its consolidated subsidiaries have
filed all necessary federal, state and foreign income and franchise tax returns
and have paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any
of them. The Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(i) above in respect of
all federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its consolidated subsidiaries
has not been finally determined.
(aa) Company Not an "Investment Company." The Company has been advised of
the rules and requirements under the Investment Company Act of 1940, as amended
(the "Investment Company Act"). The Company is not, and after receipt of payment
for the Shares and the application of the proceeds thereof as contemplated under
the caption "Use of Proceeds" in each of the preliminary prospectus and the
Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act and will conduct its business in a manner so that it will
not become subject to the Investment Company Act.
(bb) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as the Company
reasonably believes are adequate and customary for their businesses including,
but not limited to, policies covering real and personal property owned or leased
by the Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. The Company reasonably believes that it and its
subsidiaries will be able (i) to renew its existing insurance coverage as and
when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not result in a Material Adverse Change.
Neither of the Company nor any subsidiary has been denied any insurance coverage
which it has sought or for which it has applied.
(cc) No Price Stabilization or Manipulation. The Company has not taken and
will not take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the
price of any securities of the Company to facilitate the sale or resale of the
Shares. The Company acknowledges that the Underwriter may engage in passive
market making transactions in the Shares on the AMEX in accordance with
Regulation M under the Exchange Act.
(dd) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary or any other
person required to be described in the preliminary prospectus or the Prospectus
that have not been described as required.
(ee) Disclosure Controls and Procedures. The Company has established and
maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act), which (i) are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's principal executive officer and its
principal financial officer by others within those entities, particularly during
the periods in which the periodic reports required under the Exchange Act are
being prepared, (ii) will be evaluated for effectiveness as of the end of each
fiscal quarter and fiscal year of the Company and (iii) are effective in all
material respects to perform the functions for which they were established. The
Company is not aware of (a) any significant deficiency in the design or
operation of internal controls which could adversely affect the Company's
ability to record, process, summarize and report financial data or any material
weaknesses in internal controls or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company's internal controls.
(ff) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(gg) No Unlawful Contributions or Other Payments. Neither the Company nor
any of its subsidiaries nor, to the best of the Company's knowledge, any
employee or agent of the Company or any subsidiary, has made any contribution or
other payment to any official of, or candidate for, any federal, state or
foreign office in violation of any law or of the character required to be
disclosed in the Disclosure Package and the Prospectus.
(hh) Compliance with Environmental Laws. Except as would not, individually
or in the aggregate, result in a Material Adverse Change (i) neither the Company
nor any of its subsidiaries is in violation of any federal, state, local or
foreign law or regulation relating to pollution or protection of human health or
the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environment Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received any written
communication, whether from a governmental authority, citizens group, employee
or otherwise, that alleges that the Company or any of its subsidiaries is in
violation of any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation with
respect to which the Company has received written notice, and no written notice
by any person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out of, based
on or resulting from the presence, or release into the environment, of any
Material of Environmental Concern at any location owned, leased or operated by
the Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against
any person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law.
(ii) ERISA Compliance. The Company and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
"Code") of which the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined under ERISA). Neither
the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(jj) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or
other person acting on behalf of the Company or any of its subsidiaries is aware
of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the "FCPA"), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance with
the FCPA and the Company has instituted and maintains policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(kk) Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Money
Laundering Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.
(ll) OFAC. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on behalf of the
Company is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and the Company
will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(mm) Compliance with Xxxxxxxx-Xxxxx Act of 2002. The Company and, to the
best of its knowledge, its officers and directors are in compliance with
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx Act") that
are effective and are actively taking steps to ensure that they will be in
compliance with other applicable provisions of the Xxxxxxxx-Xxxxx Act upon the
effectiveness of such provisions, including Section 402 related to loans and
Sections 302 and 906 related to certifications.
Any certificate signed by an officer of the Company and delivered to the
counsel for the Underwriter shall be deemed to be a representation and warranty
by the Company to the Underwriter as to the matters set forth therein.
The Company acknowledges that the Underwriter and, for purposes of the
opinions to be delivered pursuant to Section 5 hereof, counsel to the Company
and counsel to the Underwriter, will rely upon the accuracy and truthfulness of
the foregoing representations and hereby consents to such reliance.
SECTION 2. Purchase, Sale and Delivery of the Shares.
(a) The Firm Shares. Upon the terms herein set forth, (i) the Company
agrees to issue and sell to the Underwriter an aggregate of 2,000,000 Firm
Shares. On the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Underwriter agrees to purchase from the Company the respective number of
Firm Shares. The purchase price per Firm Common Share to be paid by the
Underwriter to the Company shall be $ 8.00 per share.
(b) The First Closing Date. Delivery of the Firm Shares to be purchased by
the Underwriter and payment therefor shall be made at the offices of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Chrysler Center, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000 (or such other place as may be agreed to by the Company and
the Underwriter) at 9:00 a.m. New York time on February 8, 2006, or such other
time and date as the Underwriter shall designate by notice to the Company (the
time and date of such closing are called the "First Closing Date"). The Company
hereby acknowledges that circumstances under which the Underwriter may provide
notice to postpone the First Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the Underwriter to
recirculate to the public copies of an amended or supplemented Prospectus or a
delay as contemplated by the provisions of Section 10 or Section 19 of this
Agreement.
(c) The Optional Shares; each Subsequent Closing Date. In addition, on the
basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the Underwriter to purchase, severally and not
jointly, up to an aggregate of 300,000 Optional Shares from the Company at the
purchase price per share to be paid by the Underwriter for the Firm Shares. The
option granted hereunder may be exercised at any time and from time to time upon
notice by the Underwriter to the Company, which notice may be given at any time
within 30 days from the date of this Agreement. Such notice shall set forth (i)
the aggregate number of Optional Shares as to which the Underwriter is
exercising the option, (ii) the names and denominations in which the Optional
Shares are to be registered and (iii) the time, date and place at which such
Optional Shares will be delivered (which time and date may be simultaneous with,
but not earlier than, the First Closing Date; and in such case the term "First
Closing Date" shall refer to the time and date of delivery of the Firm Shares
and the Optional Shares). Each time and date of delivery, if subsequent to the
First Closing Date, is called the "Subsequent Closing Date" and shall be
determined by the Underwriter and shall not be earlier than three nor later than
five full business days after delivery of such notice of exercise. The
Underwriter may cancel the option at any time prior to its expiration by giving
written notice of such cancellation to the Company.
(d) Public Offering of the Shares. The Underwriter intends to offer for
sale to the public, as described in the Prospectus, the Shares as soon after
this Agreement has been executed and the Registration Statement has been
declared effective as the Underwriter, in its sole judgment, has determined is
advisable and practicable.
(e) Payment for the Shares. Payment for the Shares to be sold by the
Company shall be made at the First Closing Date (and, if applicable, at any
Subsequent Closing Date) by wire transfer of immediately available funds to the
order of the Company. It is understood that the Underwriter has been authorized,
for its own account, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Optional Shares the Underwriter
has agreed to purchase.
(f) Delivery of the Shares. Delivery of the Firm Shares and the Optional
Shares shall be made through the facilities of The Depository Trust Company
unless the Underwriter shall otherwise instruct. Time shall be of the essence,
and delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriter.
(g) Delivery of Prospectus to the Underwriter. Not later than 4:00 p.m. on
the business day following the date the Shares are first released by the
Underwriter for sale to the public, the Company shall deliver or cause to be
delivered, copies of the Prospectus in such quantities and at such places as the
Underwriter shall reasonably request.
SECTION 3. Covenants of the Company. The Company covenants and agrees with
the Underwriter as follows:
(a) Underwriter's Review of Proposed Amendments and Supplements. During
the period beginning at the Initial Sale Time and ending on the later of the
First Closing Date or such date as, in the opinion of counsel for the
Underwriter, the Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer, including under circumstances
where such requirement may be satisfied pursuant to Rule 172 under the
Securities Act (the "Prospectus Delivery Period"), prior to amending or
supplementing the Registration Statement or the Prospectus, including any
amendment or supplement through incorporation by reference of any report filed
under the Exchange Act, the Company shall furnish to the Underwriter for review
a copy of each such proposed amendment or supplement, and the Company shall not
file any such proposed amendment or supplement to which the Underwriter
reasonably objects in writing.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Underwriter in writing (i) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (ii) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, (iii) of the time
and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any preliminary prospectus or the
Prospectus, (iv) of the time and date that any post-effective amendment to the
Registration Statement becomes effective and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of any order or notice
preventing or suspending the use of the Registration Statement, any preliminary
prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. The Company shall use its best efforts to prevent the issuance of
any such stop order or prevention or suspension of such use. If the Commission
shall enter any such stop order or order or notice of prevention or suspension
at any time, the Company will use its best efforts to obtain the lifting of such
order at the earliest possible moment, or will file a new registration statement
and use its best efforts to have such new registration statement declared
effective as soon as practicable. Additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b) and 430A, as applicable, under the
Securities Act, including with respect to the timely filing of documents
thereunder, and will use its reasonable efforts to confirm that any filings made
by the Company under such Rule 424(b) were received in a timely manner by the
Commission. Further, the Company agrees that any additional documents so filed
and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
(c) Exchange Act Compliance. During the Prospectus Delivery Period, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
(d) Amendments and Supplements to the Registration Statement, Prospectus
and Other Securities Act Matters. If, during the Prospectus Delivery Period, any
event or development shall occur or condition exist as a result of which the
Disclosure Package or the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein in the light of the
circumstances under which they were made, as the case may be, not misleading, or
if it shall be necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by
reference in the Disclosure Package or the Prospectus, in order to make the
statements therein, in the light of the circumstances under which they were
made, as the case may be, not misleading, or if in the opinion of the
Underwriter it is otherwise necessary to amend or supplement the Registration
Statement, the Disclosure Package or the Prospectus, or to file under the
Exchange Act any document incorporated by reference in the Disclosure Package or
the Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection with the
delivery of the Prospectus, the Company agrees to (i) notify the Underwriter of
any such event or condition (unless such event or condition was previously
brought to the Company's attention by the Underwriter during the Prospectus
Delivery Period) and (ii) promptly prepare (subject to Section 3(a) and 3(e)
hereof), file with the Commission (and use its best efforts to have any
amendment to the Registration Statement or any new registration statement to be
declared effective) and furnish at its own expense to the Underwriter and to
dealers, amendments or supplements to the Registration Statement, the Disclosure
Package or the Prospectus, or any new registration statement, necessary in order
to make the statements in the Disclosure Package or the Prospectus as so amended
or supplemented, in the light of the circumstances under which they were made,
as the case may be, not misleading or so that the Registration Statement, the
Disclosure Package or the Prospectus, as amended or supplemented, will comply
with law. This commitment by the Company is specifically intended to capture and
address the situation where the Underwriter has, for one reason or another,
taken some of the Shares into inventory and a resale registration of the shares
becomes required for the Underwriter to sell the Shares in a registered form. In
such an instance the Company will, as expeditiously as possible, file a resale
registration statement on Form S-3, or such other form that may be available to
the Company at that time.
(e) Permitted Free Writing Prospectuses. The Company represents that it
has not made, and agrees that, unless it obtains the prior written consent of
the Underwriter, it will not make, any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a "free writing prospectus" (as defined in Rule 405 of the Securities Act)
required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act; provided that the prior written
consent of the Underwriter hereto shall be deemed to have been given in respect
of the Free Writing Prospectuses included in Schedule D hereto. Any such free
writing prospectus consented to by the Underwriter is hereinafter referred to as
a "Permitted Free Writing Prospectus". The Company agrees that (i) it has
treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 of the
Securities Act applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping.
(f) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Underwriter, without charge, during the Prospectus
Delivery Period, as many copies of each of the preliminary prospectus, the
Prospectus and the Disclosure Package and any amendments and supplements thereto
(including any documents incorporated or deemed incorporated by reference
therein) as the Underwriter may reasonably request.
(g) Blue Sky Compliance. The Company shall cooperate with the Underwriter
and counsel for the Underwriter to qualify or register the Shares for sale under
(or obtain exemptions from the application of) the state securities or blue sky
laws and Canadian provincial Securities laws and other foreign laws of those
jurisdictions designated by the Underwriter, shall comply with such laws and
shall continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Shares. The Company shall not be
required to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not presently qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Underwriter promptly of the suspension
of the qualification or registration of (or any such exemption relating to) the
Shares for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or exemption, the
Company shall use its best efforts to obtain the withdrawal thereof at the
earliest possible moment.
(h) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Shares sold by it in the manner described under the caption "Use of
Proceeds" in the Disclosure Package and the Prospectus.
(i) Transfer Agent. The Company shall engage and maintain, at its expense,
a registrar and transfer agent for the Common Stock.
(j) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Underwriter an earnings
statement (which need not be audited) covering the twelve-month period ending
December 31, 2005 that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
(k) Periodic Reporting Obligations. During the Prospectus Delivery Period
the Company shall file, on a timely basis, with the Commission and the AMEX all
reports and documents required to be filed under the Exchange Act. Additionally,
the Company shall report the use of proceeds from the issuance of the Shares as
may be required under Rule 463 under the Securities Act.
(l) Company to Provide Interim Financial Statements. Prior to the First
Closing Date and, if applicable, each Subsequent Closing Date, the Company will
furnish the Underwriter, as soon as they have been prepared by or are available
to the Company, a copy of any unaudited interim financial statements of the
Company for any period subsequent to the period covered by the most recent
financial statements appearing in the Registration Statement and the Prospectus.
(m) Quotation. The Company will use its best efforts to include, subject
to notice of issuance, the Shares on the AMEX.
(n) Agreement Not to Offer or Sell Additional Securities. During the
period commencing on the date hereof and ending on the 180th day following the
date of the Prospectus, the Company will not, without the prior written consent
of the Underwriter, directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of or transfer, or announce the offering of, or file any registration statement
under the Securities Act in respect of, any shares of Common Stock, options or
warrants to acquire shares of the Common Stock or securities exchangeable or
exercisable for or convertible into shares of Common Stock (other than as
contemplated by this Agreement with respect to the Shares); provided, however,
that the Company may issue shares of its Common Stock or options to purchase its
Common Stock, or shares of Common Stock upon exercise of options, in each case,
pursuant to any stock option, stock bonus or other stock plan or arrangement
described in the Prospectus, but only if the holders of such shares, options, or
shares issued upon exercise of such options, agree in writing not to sell,
offer, dispose of or otherwise transfer any such shares or options during such
90-day period without the prior written consent of the Underwriter.
(o) Future Reports to the Underwriter. During the period of three years
hereafter the Company will furnish, if not otherwise available on XXXXX, to the
Underwriter at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxxx,
General Counsel for Xxxxxx, Xxxxx Xxxxx, Incorporated, (i) as soon as
practicable after the end of each fiscal year, copies of the Annual Report of
the Company containing the balance sheet of the Company as of the close of such
fiscal year and statements of income, stockholders' equity and cash flows for
the year then ended and the opinion thereon of the Company's independent public
or certified public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, the AMEX or any securities exchange; and (iii) as
soon as available, copies of any report or communication of the Company mailed
generally to holders of its capital stock.
(p) Investment Limitation. The Company shall not invest, or otherwise use
the proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of its subsidiaries to register as an
investment company under the Investment Company Act.
(q) No Manipulation of Price. The Company will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
(r) Existing Lock-Up Agreements. There are no existing agreements between
the Company and its security holders that prohibit the sale, transfer,
assignment, pledge or hypothecation of any of the Company's securities. The
Company will direct the transfer agent to place stop transfer restrictions upon
the securities of the Company that are bound by "lock-up" agreements entered
into by the persons listed in Schedule C hereof pursuant to the terms of this
Agreement for the duration of the periods contemplated in such agreements.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of their obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Shares (including all printing and engraving costs, if any), (ii) all fees and
expenses of the registrar and transfer agent of the Common Stock, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Shares to the Underwriter, (iv) all fees and expenses of the
Company's counsel, independent public or certified public accountants and other
advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each Issuer Free Writing Prospectus, each preliminary
prospectus and the Prospectus, and all amendments and supplements thereto, and
this Agreement, (vi) all filing fees, attorneys' fees and expenses incurred by
the Company or the Underwriter in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part
of the Shares for offer and sale under the state securities or blue sky laws or
the provincial securities laws of Canada, and, if requested by the Underwriter,
preparing and printing a "Blue Sky Survey" or memorandum, and any supplements
thereto, advising the Underwriter of such qualifications, registrations and
exemptions, (vii) the filing fees incident to, and the reasonable fees and
expenses of counsel for the Underwriter in connection with, the NASD's review
and approval of the Underwriter' participation in the offering and distribution
of the Shares, (viii) the fees and expenses associated with including the Shares
on the AMEX, (ix) all other fees, costs and expenses referred to in Item 13 of
Part II of the Registration Statement, and (x) all reasonable out-of-pocket
costs and expenses of the Underwriter up to $100,000, including the fees and
disbursements of their counsel. Except as provided in this Section 4, Section 6,
Section 8 and Section 9 hereof, the Underwriter shall pay their own expenses,
including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase and pay for the Firm Shares as
provided herein on the First Closing Date and, with respect to the Optional
Shares, each Subsequent Closing Date, shall be subject to (1) the accuracy of
the representations and warranties on the part of the Company set forth in
Section 1 hereof as of the date hereof and as of the First Closing Date and each
Subsequent Closing Date as though then made; (2) the timely performance by the
Company of its covenants and other obligations hereunder; and (3) each of the
following additional conditions:
(a) [Intentionally Omitted]
(b) Effectiveness of Registration Statement; Compliance with Registration
Requirements; No Stop Order. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the Optional
Shares, any Subsequent Closing Date:
(i) the Company shall have filed the Prospectus with the Commission
(including the information required by Rule 430A under the
Securities Act) in the manner and within the time period required by
Rule 424(b) under the Securities Act; or the Company shall have
filed a post-effective amendment to the Registration Statement
containing the information required by such Rule 430A, and such
post-effective amendment shall have become effective; and
(ii) no stop order suspending the effectiveness of the Registration
Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such purpose
shall have been instituted or threatened by the Commission.
(c) No Material Adverse Change. For the period from and after the date of
this Agreement and prior to the First Closing Date and, with respect to the
Optional Shares, each Subsequent Closing Date, in the judgment of the
Underwriter there shall not have occurred any Material Adverse Change.
(d) Opinion of Counsel for the Company. On each of the First Closing Date
and each Subsequent Closing Date the Underwriter shall have received the
favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx, LLP, counsel for the
Company, dated as of the First Closing Date or the Subsequent Closing Date, as
applicable, substantially in the form attached as Exhibit A.
(f) Officers' Certificate. On each of the First Closing Date and each
Subsequent Closing Date the Underwriter shall have received a written
certificate executed by the Chairman of the Board and Chief Executive Officer of
the Company, the President of the Company and the Chief Financial Officer of the
Company, dated as of the Closing Date, to the effect that the signers of such
certificate have reviewed the Registration Statement, the Prospectus and any
amendment or supplement thereto, any Issuer Free Writing Prospectus and any
amendment or supplement thereto and this Agreement, to the effect set forth in
subsection (b)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement and
prior to such Closing Date, there has not occurred any Material
Adverse Change;
(ii) the representations, warranties and covenants of the Company
set forth in Section 1A of this Agreement are true and correct with
the same force and effect as though expressly made on and as of such
Closing Date; and
(iii) the Company has complied with all the agreements hereunder and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date.
(g) [Intentionally Omitted]
(h) Lock-Up Agreement from Certain Securityholders of the Company. On or
prior to the date hereof, the Company shall have furnished to the Underwriter an
agreement in the form of Exhibit C hereto from each person and each entity set
forth in Schedule C of this Agreement, and such agreement shall be in full force
and effect on each of the First Closing Date and each Subsequent Closing Date.
(i) Additional Documents. On or before each of the First Closing Date and
each Subsequent Closing Date, the Underwriter and counsel for the Underwriter
shall have received such information, documents and opinions as they may
reasonably require, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Underwriter by
notice to the Company at any time on or prior to the First Closing Date and,
with respect to the Optional Shares, at any time prior to each Subsequent
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriter' Expenses. If this Agreement is
terminated by the Underwriter pursuant to Section 5 or Section 10, or by the
Company pursuant to Section 7, or if the sale to the Underwriter of the Shares
on the First Closing Date or Subsequent Closing Date is not consummated because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or to comply with any provision hereof, the Company agrees to
reimburse the Underwriter, upon demand, for all out-of-pocket expenses that
shall have been reasonably incurred by the Underwriter in connection with the
proposed purchase and the offering and sale of the Shares, including but not
limited to reasonable fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
SECTION 7. Effectiveness of this Agreement. This Agreement shall not
become effective until the later of (i) the execution of this Agreement by the
parties hereto and (ii) notification (including by way of oral notification from
the reviewer at the Commission) by the Commission to the Company of the
effectiveness of the Registration Statement under the Securities Act; provided
that Sections 4, 6, 8 and 9 shall at all times be effective.
Prior to such effectiveness, this Agreement may be terminated by any party
by notice to each of the other parties hereto, and any such termination shall be
without liability on the part of (a) the Company to the Underwriter, except that
(solely in the case where the Company has terminated this Agreement pursuant to
this Section 7) the Company shall be obligated to reimburse the expenses of the
Underwriter pursuant to Sections 4 and 6 hereof, (b) of any Underwriter to the
Company or (c) of any party hereto to any other party except that the provisions
of Section 8 and Section 9 shall at all times be effective and shall survive
such termination.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriter. The Company agrees to indemnify
and hold harmless the Underwriter, its officers and employees, and each person,
if any, who controls the Underwriter within the meaning of the Securities Act
and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which the Underwriter or such controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based (i) upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule 430A,
Rule 430B and Rule 430C under the Securities Act, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading; or (ii) upon any untrue statement
or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; or (iii)
in whole or in part upon any inaccuracy in the representations and warranties of
the Company, as applicable, contained herein; or (iv) in whole or in part upon
any failure of the Company to perform their respective obligations hereunder or
under law; or (v) upon any act or failure to act or any alleged act or failure
to act by the Underwriter in connection with, or relating in any manner to, the
Common Stock or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out of
or based upon any matter covered by clause (i) or (ii) above, provided that the
Company shall not be liable under this clause (v) to the extent that such loss,
claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its bad faith or willful misconduct; and to reimburse the Underwriter and each
such controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by Underwriter) as such expenses are reasonably
incurred by such Underwriter or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use in the Registration Statement,
any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The indemnity agreement set forth in
this Section 8(a)(1) shall be in addition to any liabilities that the Company
may otherwise have.
(b) Indemnification of the Company and its Directors and Officers. The
Underwriter agrees, to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement, against
any loss, claim, damage, liability or expense, as incurred, to which the
Company, or any such director or officer may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any Issuer Free Writing Prospectus, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or arises
out of or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Issuer Free Writing
Prospectus, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein; and to
reimburse the Company, or any such director, officer, or controlling person for
any legal and other expense reasonably incurred by the Company, or any such
director, officer, or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action, provided that, notwithstanding anything to the
contrary contained in this Agreement, the liability of the Underwriter shall be
limited to an amount equal to the Commission received by the Underwriter; this
is intended to be an exclusive remedy. The Company hereby acknowledges that the
only information that the Underwriter have furnished to the Company expressly
for use in the Registration Statement, any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the table in the first paragraph, in
the eighth paragraph and tenth--to twelfth paragraphs (relating to stabilization
activities) and in the fifteenth paragraph (relating to market making) under the
caption "Underwriting" in the preliminary prospectus and the Prospectus; and the
Underwriter confirms that such statements are correct.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
to so notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party (in the case of Section 8(b) or Section 9), representing the
indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
8(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
SECTION 9. Contribution. If the indemnification provided for in Section 8
is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying parties on the one hand, and the
indemnified parties, on the other hand, from the offering of the Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying parties, on the one hand, and the indemnified parties,
on the other hand, in connection with the statements or omissions or
inaccuracies in the representations and warranties herein which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the indemnifying
parties, on the one hand, and the indemnified parties, on the other hand, in
connection with the offering of the Shares pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Shares pursuant to this Agreement (before deducting
expenses) received by the indemnifying parties, and the total underwriting
discount received by the indemnified parties, in each case as set forth on the
front cover page of the Prospectus bear to the aggregate initial public offering
price of the Shares as set forth on such cover. The relative fault of the
indemnifying parties, on the one hand, and the indemnified parties, on the other
hand, shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by indemnifying
parties, on the one hand, or the indemnified parties, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 8(c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(c) for purposes of indemnification.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 9. Notwithstanding the
provisions of this Section 9, the Underwriter shall not be required to
contribute any amount in excess of the underwriting commissions received by such
Underwriter in connection with the Shares underwritten by it and distributed to
the public. 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 9, each officer and employee of the Underwriter and each person,
if any, who controls the Underwriter within the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the
Underwriter; each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company with the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Company.
SECTION 10. Termination of this Agreement. Prior to the First Closing Date
and, with respect to Optional Shares, each Subsequent Closing Date, whether
before or after notification by the Commission to the Company of the
effectiveness of the Registration Statement under the Securities Act, this
Agreement may be terminated by the Underwriter by notice given to the Company if
at any time (i) trading or quotation in any of the Company's securities shall
have been suspended or limited by the Commission or by the AMEX, or trading in
securities generally on the AMEX, the Nasdaq Stock Market or the New York Stock
Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the
Commission, the NASD or the AMEX; (ii) a general banking moratorium shall have
been declared by any of federal, New York or Delaware authorities; (iii) there
shall have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or development
involving a prospective substantial change in United States' or international
political, financial or economic conditions, as in the judgment of the
Underwriter is material and adverse and makes it impracticable to market the
Shares in the manner and on the terms described in the Prospectus or to enforce
contracts for the sale of securities; or (iv) in the reasonable judgment of the
Underwriter there shall have occurred any Material Adverse Change (regardless of
whether any loss associated with such Material Adverse Change shall have been
insured). Any termination pursuant to this Section 11 shall be without liability
on the part of (a) the Company to the Underwriter, except that the Company shall
be obligated to reimburse the expenses of the Underwriter pursuant to Sections 4
and 6 hereof, (b) any Underwriter to the Company, or (c) of any party hereto to
any other party except that the provisions of Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
SECTION 11. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Shares pursuant
to this Agreement, including the determination of the public offering price of
the Shares and any related discounts and commissions, is an arm's-length
commercial transaction between the Company, on the one hand, and the
Underwriter, on the other hand, and the Company is capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction the
Underwriter is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary of the Company or their respective
affiliates, stockholders, creditors or employees or any other party; (iii) the
Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters)
and the Underwriter has no obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this
Agreement; (iv) the Underwriter and its respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of
the Company and the Underwriter has no obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Underwriter have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed it appropriate.
This Agreement supercedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriter with respect to the
subject matter hereof. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the
Underwriter with respect to any breach or alleged breach of agency or fiduciary
duty.
SECTION 12. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or the Company or
any of its or their partners, officers or directors or any controlling person,
as the case may be, and will survive delivery of and payment for the Shares sold
hereunder and any termination of this Agreement.
SECTION 13. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Underwriter:
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Senior Vice President and General Counsel
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Chrysler Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
If to the Company:
IMMTECH INTERNATIONAL, INC.
000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: T. Xxxxxxx Xxxxxxxx, President
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx, LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
SECTION 14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 8 and Section 9,
and in each case their respective successors, and personal representatives and
no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from the
Underwriter merely by reason of such purchase.
SECTION 15. Partial Unenforceability. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 17. Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County of
New York (collectively, the "Specified Courts"), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 18. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Table of Contents and the Section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of this
Agreement. Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the Underwriter set forth in
or made pursuant to this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Underwriter, the officers or employees of
the Underwriter, any person controlling the Underwriter, the Company, the
officers or employees of the Company, or any person controlling the Company,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriter, the
Underwriter's officers and employees, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, 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 a purchaser of any of the Shares from the Underwriter
merely because of such purchase.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
IMMTECH INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
---------------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
By: XXXXXX, XXXXX XXXXX, INCORPORATED
By: /s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx, Vice President
