1
Exhibit 1
================================================================================
2,700,000 SHARES
ANTHRA PHARMACEUTICALS, INC.
COMMON STOCK
____________________________
UNDERWRITING AGREEMENT
SELECTED DEALER AGREEMENT
____________________________
____________, 1998
================================================================================
2
2,700,000 SHARES
ANTHRA PHARMACEUTICALS, INC.
COMMON STOCK
____________________________
UNDERWRITING AGREEMENT
____________________________
___________, 1998
XXXXX & COMPANY INCORPORATED
GRUNTAL & CO., L.L.C.
As Representatives of the Several
Underwriters
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Anthra Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), hereby confirms its agreement with the several Underwriters named in
schedule A hereto (the "Underwriters"), for which you are acting as
representatives (the "Representatives"), as follows:
1. DESCRIPTION OF SECURITIES. The Company has authorized by appropriate
corporate action and proposes to issue and sell to the Underwriters its shares
of Common Stock, $.01 par value. As further described in Section 3 hereof,
2,700,000 of such shares (the "Purchased Shares") are being sold by the Company
to the Underwriters and the Company is granting to the Underwriters an option to
purchase up to 405,000 additional shares (the "Option Shares"). The Purchased
Shares and Option Shares are herein collectively referred to as the "Shares".
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
represents and warrants to and agrees with each Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-47725) with
respect to the Shares, including a preliminary
3
form of prospectus, copies of which have heretofore been delivered to you, has
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") under the Act, and has been filed with the Commission under the
Act; such amendment or amendments to such registration statement, copies of
which have heretofore been delivered to you, as may have been made prior to the
date of this Agreement have been so prepared and filed; and the Company has so
prepared and proposes so to file in a timely manner after the effective date of
such registration statement the final form of prospectus. Such registration
statement (including all exhibits thereto), as finally amended and revised as of
the time the Underwriters first offer the Shares for sale to the public together
with information, if any, which is permitted to be, and is, subsequently filed
pursuant to Rule 430A of the Rules and Regulations, is herein referred to as the
"Registration Statement". Such prospectus in the form filed pursuant to Rule
424(b) of the Rules and Regulations, or, if no final prospectus is filed with
the Commission pursuant to Rule 424(b), in such form as such final prospectus is
included in the Registration Statement, is herein referred to as the
"Prospectus". Each preliminary form of prospectus is herein referred to as a
"Preliminary Prospectus".
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. At the time of filing of each Preliminary
Prospectus, such prospectus did not include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. When the Registration Statement was or is declared effective and at
all times subsequent thereto up to and at each Closing Date (hereinafter
defined) (i) the Registration Statement contained or will contain as of its date
all material statements and information which are required to be included
therein in accordance with the Act and Rules and Regulations and will in all
material respects conform to the requirements of the Act and the Rules and
Regulations, and (ii) the Registration Statement did not or will not include as
of its date any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading. When the
Prospectus or any amendment or supplement thereto is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement
is not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and on each Closing Date (as hereinafter defined), the Prospectus,
as amended or supplemented at any such time, (i) contained or will contain all
statements required to be
3
4
stated therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the Rules and Regulations and
(ii) did not or will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
foregoing representations and warranties shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter through you specifically
for use in the preparation thereof.
(c) Set forth on Schedule B hereto is the name of each subsidiary of
the Company which holds assets or conducts operations which are material to the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole, and, unless otherwise
indicated thereon, the Company holds all right, title and interest in and to the
entire equity interest in each such subsidiary. Except as described in the
Prospectus, subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, neither the Company, nor any
entity which is either identified in the Prospectus as a subsidiary of the
Company or listed on Schedule B hereto (each individually a "Subsidiary" and
collectively the "Subsidiaries"), taken as a whole, has incurred any direct or,
to the best of the Company's knowledge, contingent material liabilities or
material obligations, or entered into any material transactions or contracts not
in the ordinary course of business, and there has not been any change in its
capital shares, options or warrants, nor any material increase or decrease in
the amount thereof outstanding or in any of its long-term debt outstanding,
except pursuant to the terms of the instruments governing the same, or any
material adverse change in the condition (financial or otherwise), results of
operations, business or prospects of the Company and the Subsidiaries taken as a
whole.
(d) Except as set forth in the Prospectus, there is not now pending
or, to the knowledge of the Company, threatened, any action, suit or proceeding
to which the Company or any Subsidiary is a party before any court or
governmental agency or body which could reasonably be expected to result in any
material adverse change in the condition (financial or otherwise), results of
operations, business or prospects of the Company and the Subsidiaries taken as a
whole, or could reasonably be expected to materially and adversely affect the
properties, assets or ability to do business as contemplated in the Prospectus
of the Company and the Subsidiaries taken as a whole; and there are no contracts
or documents required to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations which have not been filed as exhibits to
the Registration Statement.
4
5
(e) This Agreement has been duly authorized, executed and delivered
on behalf of the Company and constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms, except (1) that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
and (2) as rights to indemnity or contribution hereunder may be limited by
federal or state securities laws; the execution, delivery and performance of
this Agreement and the consummation of the transactions herein contemplated will
not result in a breach or violation of any term or provision of, or constitute a
default under, (i) any currently existing statute, any indenture, mortgage, deed
of trust, note agreement or other agreement or instrument filed as an exhibit to
the Registration Statement or any other material indenture, mortgage, deed of
trust, note or agreement or other agreement or instrument to which the Company
or any Subsidiary is a party or by which it or its property is bound; (ii) the
charter or by-laws of the Company or any Subsidiary; or (iii) any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or over their properties; no consent, approval, authorization or
order of any court or governmental agency or body is required for the
consummation by the Company of the transactions on its part herein contemplated,
except such as have been obtained or such as may be required under the Act or as
may be required under state or other securities or blue sky laws in connection
with the purchase and distribution of the Shares by the Underwriters; and
neither the Company nor any of the Subsidiaries is now in default, and no event
has occurred which with the giving of notice or lapse of time or both would be a
default, under any contract, agreement, indenture, mortgage or other undertaking
to which such entity is a party and which is material to the condition
(financial or otherwise), results of operations, business or prospects of the
Company and the Subsidiaries taken as a whole.
(f) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority,
corporate or otherwise, to own its properties and conduct its business as
described and contemplated in the Registration Statement, and is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions where its operations or ownership of property requires such
qualifications and where failure so to qualify would impair title to any
material properties of the Company or its rights to enforce contracts against
others or expose it to liabilities material to the Company and the Subsidiaries
taken as a whole in such jurisdictions.
5
6
(g) The Company has the authorized and outstanding capital stock set
forth in the Prospectus; the outstanding capital stock of the Company conforms,
and the Shares when issued and sold as herein contemplated will conform, in all
material respects, to all statements in relation thereto contained in the
Registration Statement and the Prospectus and all such stock has been duly
authorized and the outstanding capital stock has been and the Shares, when
issued and delivered against payment therefor as provided herein, will be
validly issued, fully-paid and nonassessable; except as stated in the
Prospectus, the stockholders of the Company have no preemptive rights with
respect to the Shares and there are no outstanding rights, options or warrants
to acquire any securities of the Company; to the extent that any rights, options
or warrants to acquire any securities of the Company are outstanding, except as
otherwise set forth in the Prospectus, the issuance of the Shares as described
in the Prospectus will not result in an adjustment of the exercise price or
number of shares issuable upon the exercise in respect of any such rights,
options or warrants; and, except as otherwise set forth in the Prospectus, the
Company owns (directly or indirectly) under valid title the respective
outstanding shares of capital stock of the Subsidiaries, free and clear of any
material liens, encumbrances or claims.
(h) Except as otherwise set forth in the Prospectus, each of the
Company and the Subsidiaries owns or possesses, or can acquire on reasonable
terms, adequate patents, patent licenses, trademarks, service marks and trade
names necessary to carry on its business as presently conducted, and except as
set forth in the Prospectus, neither the Company nor any of the Subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any patents, patent licenses, trademarks, service marks
or trade names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could materially and adversely affect
the condition (financial or otherwise), earnings, affairs, business or prospects
of the Company and the Subsidiaries taken as a whole.
(i) Except as set forth in the Prospectus, the Company and its
Subsidiaries hold in good standing or have applied for all material licenses,
permits, authorizations, franchises, consents and orders of all federal, state,
local, and foreign governmental bodies necessary to carry on their respective
businesses as reflected or contemplated in the Prospectus; except as stated in
the Prospectus the Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
it, in each case free and clear of all liens, encumbrances and defects, other
than for, in each case, such exceptions as are not material to the Company and
the Subsidiaries taken as a whole; and the real property and personal property
referred to in the Prospectus as held under
6
7
lease by the Company is held by it under valid, subsisting and enforceable
leases with only such exceptions as in the aggregate are not material and do not
materially interfere with the conduct of the business of the Company and the
Subsidiaries taken as a whole as contemplated by the Prospectus.
(j) The Company is conducting and proposes to conduct its business
so as to comply in all material respects with all applicable federal, state,
local and foreign governmental statutes, rules and regulations; and except as
set forth in the Prospectus, neither the Company nor any Subsidiary is charged
with, or, is under investigation with respect to, any violation of any of such
statutes, rules or regulations or is the subject of any pending or threatened
proceeding by a governmental body or regulatory authority relating to any such
violation, except for such violations which, individually or in the aggregate,
would not materially and adversely affect the business or financial condition of
the Company and the Subsidiaries taken as a whole.
(k) The Company and each of the Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are customary in the business in which they are engaged; and neither
the Company nor any of the Subsidiaries has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not materially and adversely
affect the business or financial condition of the Company and the Subsidiaries
taken as a whole, except as described or contemplated in the Prospectus.
(l) KPMG Peat Marwick LLP, which has examined and expressed its
opinion on certain of the financial statements of the Company filed with the
Commission as a part of the Registration Statement, are, to the Company's best
knowledge, independent accountants with respect to the Company within the
meaning of the Act and the Rules and Regulations; the financial statements,
together with the related notes, forming part of the Registration Statement and
Prospectus fairly present the financial condition of the Company and its results
of operations as of the dates and for the periods described in such opinion in
the Prospectus; and such financial statements have been prepared in accordance
with the requirements of the Commission.
(m) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
transactions are executed in accordance with management's general or specific
authorizations and are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles.
7
8
(n) Except as stated in the Prospectus, the Company knows of no
outstanding claims for services, either in the nature of a finder's fee or
origination fee, with respect to the transactions contemplated hereby, and the
Company agrees to indemnify and hold the Underwriters harmless from any such
claim for any such services of such nature arising from the act of any person
other than any Underwriter.
(o) No person holds a right to require or participate in the
registration under the Act of the Common Stock of the Company to be effected by
the Registration Statement, which right has not been effectively waived by the
holder thereof as of the date hereof.
(p) The Company has obtained from each of its officers and
directors, and from each of its shareholders owning in excess of 1.0% of the
shares of the Company's Common Stock outstanding immediately prior to the
consummation of the offering contemplated hereby, and will use its best efforts
to seek from each of its other shareholders (provided that a failure to obtain
agreements from such other shareholders will not be deemed a breach of this
representation), an executed agreement in form and substance satisfactory to the
Representatives that each such party will not, without the prior written consent
of the Representatives on behalf of the Underwriters, sell, offer for sale,
contract to sell or otherwise dispose of any shares of the Company's Common
Stock or any securities exercisable for or convertible into its Common Stock or
any rights to acquire Common Stock for a period of 180 days from the date of the
final Prospectus.
3. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $______ per Share, the number of Shares
set forth opposite the name of such Underwriter in Schedule A hereto.
The Company will deliver the Purchased Shares to you for the
accounts of the several Underwriters at the office of Xxxxx & Company
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, against payment of the
purchase price therefor by certified or official bank check or checks in New
York Clearing House funds, payable to the order of Anthra Pharmaceuticals, Inc.,
at 10:00 A.M., New York Time, on ____________, 1998 or at such other time and
date not later than five full business days thereafter as you and the Company
may mutually determine, such time and date of delivery and payment being herein
called the "First Closing Date". The certificates for the Purchased Shares to be
so delivered will be made available to you at such office for
8
9
checking at least one full business day prior to such Closing Date and will be
in such names and denominations as you may request in writing not less than two
full business days prior to such Closing Date.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company grants to the Underwriters an option to purchase up to 405,000 Option
Shares at the same price per share as the Underwriters shall pay for the
Purchased Shares. Such option may be exercised only to cover over-allotments
arising in connection with the sale of Purchased Shares by the Underwriters,
such exercise to be upon written notice by you to the Company within 30 days of
the date hereof setting forth the number of Options Shares as to which the
Underwriters are exercising the option, the denominations and names in which
certificates for such Shares should be registered and the time and place at
which such certificates are to be delivered. Such time and place (unless such
time is the First Closing Date), herein referred to as the "Second Closing
Date", shall be determined by you but shall not be earlier than the First
Closing Date, nor earlier than three full business days or later than ten full
business days after the exercise of such option. The Company will deliver Option
Shares to you for the accounts of the several Underwriters against payment of
the purchase price therefor by certified or official bank check or checks in New
York Clearing House funds payable to the order of Anthra Pharmaceuticals, Inc.
The number of Option Shares to be purchased by each Underwriter shall be in the
same proportion to the aggregate number of Option Shares purchased as the number
of Purchased Shares set forth opposite the name of such Underwriter in Schedule
A hereto bears to 2,700,000.
It is understood that you, individually and not as the
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment on behalf of any Underwriter or Underwriters for Shares to be
purchased by such Underwriter or Underwriters. Any such payment by you shall not
relieve any such Underwriter or Underwriters of any of its or their obligations
hereunder.
After the Registration Statement becomes effective, the several
Underwriters propose to offer the Shares to the public as set forth in the
Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement and any subsequent amendment thereto to become effective as promptly
as possible; it will notify you, promptly after it shall receive notice thereof,
of the time when
9
10
the Registration Statement or any subsequent amendment to the Registration
Statement has become effective or any supplement to the Prospectus has been
filed; it will notify you promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; it will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration Statement
or Prospectus which, in your reasonable opinion, may be necessary or advisable
in connection with the distribution of the Shares by the Underwriters; it will
promptly prepare and file with the Commission, and promptly notify you of the
filing of, any amendments or supplements to the Registration Statement or
Prospectus which may be necessary to correct any statements or omissions, if, at
any time when a prospectus relating to the Shares is required to be delivered
under the Act, any event shall have occurred as a result of which the Prospectus
or any other prospectus relating to the Shares as then in effect would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading; in case any Underwriter
is required to deliver a prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act in connection with sales of the Shares purchased by
the Underwriters from the Company pursuant to Section 3 or otherwise acquired by
the Underwriters during the distribution of the Shares in connection with
stabilization or otherwise, the Company will prepare and file with the
Commission promptly upon request of, but at the expense of, such Underwriter,
any amendments or supplements to the Registration Statement or Prospectus as may
be necessary, in such Underwriter's reasonable opinion, to permit the sale of
such Shares in the manner determined by such Underwriter, in compliance with the
requirements of the Act, including Section 10(a)(3) thereunder; and it will file
no amendment or supplement to the Registration Statement or Prospectus that
shall not previously have been submitted to you in writing a reasonable time
prior to the proposed filing thereof or to which you shall reasonably object in
writing.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order suspending trading in the Shares or other of the Company's securities or
of the initiation or threat of any proceeding for that purpose; and it will use
promptly its best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such a stop order should be issued.
(c) The Company will use its best efforts to qualify the Shares for
sale under the blue sky or securities laws of such jurisdictions as you may
reasonably designate and to continue such qualifications in effect for so long
as may be required for
10
11
purposes of the distribution of the Shares, except that the Company shall not be
required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in any
state.
(d) The Company will furnish to you, as soon as available, copies of
the Registration Statement (two of which will be signed and will include all
exhibits), each Preliminary Prospectus, the Prospectus, and any amendments or
supplements to such documents, including any prospectus prepared to permit
compliance with Section 10(a)(3) of the Act, all in such quantities as you may
from time to time reasonably request.
(e) The Company will make generally available to its security
holders as soon as practicable, an earnings statement (which will be in
reasonable detail but need not be audited) covering a 12-month period beginning
after the effective date of the Registration Statement which shall satisfy the
provisions of Section 11(a) of the Act.
(f) The Company agrees, during each fiscal year for a period of five
years from the date hereof, to furnish to its stockholders as promptly as may be
practicable an annual report (including financial statements audited by
independent public accountants) and to publish quarterly financial statements
(which need not be audited) for each of the first three quarters of each fiscal
year, and to furnish, upon request, to each Underwriter hereunder (i) as soon as
practicable after the end of each of the first three quarters of each fiscal
year, the Company's quarterly report on Form 10-Q or statements of operations
and surplus of the Company for such quarter in reasonable detail and certified
by the Company's principal financial or accounting officer; (ii) as soon as
practicable after the end of each fiscal year, financial statements of the
Company as at the end of such fiscal year, including statements of operations,
retained earnings and changes in financial position of the Company for such
fiscal year, all in reasonable detail and accompanied by a copy of the report
thereon of independent public accountants or the Company's annual report on Form
10-K; and (iii) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission. During such
period, if and so long as the Company shall have active subsidiaries, the
foregoing financial statements shall be on a combined or consolidated basis to
the extent that the accounts of the Company and its subsidiaries are combined or
consolidated.
(g) The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the
following: (i) the fees, disbursements, and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the Act;
(ii) all other expenses in connection with the preparation, printing, and filing
of the
11
12
Registration Statement, each Preliminary Prospectus, and the Prospectus
and amendments and supplements thereto, and the mailing and delivering of copies
thereof to the Underwriters and dealers; (iii) the cost of printing this
Agreement, the Selected Dealer Agreement, the Blue Sky Memorandum, and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iv) all costs and expenses in connection with the issuance and delivery
of the Shares hereunder to the Underwriters, including related transfer taxes,
if any; (v) all expenses in connection with the qualification of the Shares for
offering and sale under the securities laws of various jurisdictions, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky Survey; (vi) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vii) the costs
of preparing stock certificates; (viii) the cost and charges of any transfer
agent or registrar; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 4. In addition to the foregoing, the Company shall
reimburse the Underwriters, upon request from time to time, for their reasonable
itemized out-of-pocket expenses up to a maximum of $150,000, including their
legal fees and disbursements and travel, roadshow and syndicate expenses, upon
the presentation of reasonable documentation thereof. If the Company determines
not to proceed with the offering for any reason, other than the Underwriters'
unwillingness to proceed on the terms and conditions set forth in this
Agreement, or if the Representatives exercise their right to terminate this
Agreement pursuant to Section 10(b)(i) hereof, the Company shall reimburse the
Underwriters for all reasonable out-of-pocket expenses including legal fees and
disbursements and travel, roadshow and syndicate expenses actually incurred by
the Underwriters up to a maximum of $150,000. The Company shall not in any event
be liable to any of the Underwriters for the loss of anticipated profits from
the transactions covered by this Agreement.
(h) The Company agrees that it will not, without the prior written
consent of the Representatives on behalf of the Underwriters, sell, offer for
sale, contract to sell or otherwise dispose of any shares of its Common Stock or
any securities exercisable for or convertible into shares of its Common Stock or
any rights to acquire Common Stock, for a period of 180 days after the date of
the final Prospectus.
(i) The Company understands that no action has been or will be taken
in any jurisdiction (except in the United States) that would permit a public
offering of the Shares or the possession, circulation or distribution of the
Prospectus or any amendment or supplement thereto or any other material
relating to the Company or the Shares in any jurisdiction where action for that
purpose is required. Accordingly, the Company agrees that it will not offer or
sell, directly or indirectly, the Shares, nor will it distribute or publish the
Prospectus or any amendment or supplement thereto nor any other offering
material or advertisements in connection with the Shares, in or from any country
or jurisdiction except in compliance with any applicable rules and regulations
of any such country or jurisdiction.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters to purchase and pay for the Purchased Shares on the First Closing
Date and the Option Shares on the Second Closing Date, as provided herein shall
be subject to the accuracy, as of the date hereof and such Closing Date (as if
made on and as of such Closing Date), of the
12
13
representations and warranties of the Company herein, to the performance by the
Company of its obligations hereunder, and to the following additional
conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M., New York City Time, on the date of this Agreement, or such later
date as shall be consented to in writing by you; if required, the Prospectus and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rule 424(b) under the Act; and
no stop order suspending the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the knowledge of
the Company or any Underwriter, threatened by the Commission, and any request of
the Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Prior to such Closing Date, except as contemplated in the
Prospectus, there shall not have been any change in the capital shares, nor the
issuance of any rights, options, or warrants to purchase any capital shares, nor
any material increase or decrease in any long-term debt of the Company or any of
the Subsidiaries or any material adverse change in the condition (financial or
otherwise), results of operations, business or prospects of the Company or any
of the Subsidiaries which in your reasonable judgment renders it inadvisable to
proceed with the offering and sale of the Shares.
(c) You shall have received the opinion of Xxxxxxxx & Xxxxxxxx LLP,
counsel for the Company, dated such Closing Date, in the form substantially set
forth as Exhibit A attached hereto.
(d) You shall have received from Xxxxxxxxx & Xxxxxxx, regulatory
counsel to the Company, an opinion, dated such Closing Date, in form and
substance satisfactory to you, to the effect that the statements in the
Prospectus under the captions "Risk Factors - Uncertainty of Government
Regulatory Requirements; Lengthy Approval Process" and "Business - Government
Regulation", insofar as they pertain to legal matters, fairly present in all
material respects the information presented therein.
(e) You shall have received from Xxxxxx & Carnelutti, A Professional
Corporation, counsel for the several Underwriters, an opinion or opinions, dated
such Closing Date, in form and substance satisfactory to you, with respect to
the sufficiency of all such corporate proceedings and other legal matters
relating to this Agreement and the transactions contemplated hereby as you
may reasonably require, and the Company shall have furnished to such counsel
such documents as they may have requested for the purpose of enabling them to
pass upon such matters.
13
14
(f) You shall have received, at the time of execution of this
Agreement and on such Closing Date from KPMG Peat Marwick LLP, independent
public accountants, a letter or letters, dated the date of delivery thereof,
substantially in the form and substance heretofore approved by you.
(g) You shall have received a certificate, dated such Closing Date,
of each of the President and Chief Executive Officer and the Chief Financial
Officer of the Company, delivered on behalf of the Company, to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made
on and as of such Closing Date; and the Company has complied with
all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date in all
material respects;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to their knowledge, are
contemplated by the Commission; and
(iii) except as contemplated by or described in the Prospectus,
the Company and/or its Subsidiaries taken as a whole have not
incurred any direct or, to the best of the Company's knowledge,
contingent material liabilities or obligations, or entered into any
material transactions or contracts not in the ordinary course of
business, and there has not been any change in the capital shares of
the Company and/or its Subsidiaries, nor the issuance of any rights,
options, or warrants to purchase any capital shares, nor any
material increase or decrease in any thereof or in any long-term
debt or any material adverse change in the condition (financial or
otherwise) results of operations, business or prospects of the
Company and its Subsidiaries taken as a whole; provided, however,
that all of the outstanding shares of the Company's preferred stock
shall have been converted, simultaneously with the First Closing
Date, into shares of Common Stock as contemplated in the Prospectus.
(h) The Company shall have furnished to you such certificates, in
addition to those specifically mentioned herein, as you may have reasonably
requested, as to the accuracy and completeness at such Closing Date of any
statement in the Registration Statement or Prospectus, as to the accuracy at
such Closing Date of the representations and warranties of the Company herein,
as to the performance by the Company of its obligations
14
15
hereunder, and as to the fulfillment of the conditions concurrent and precedent
to the obligations of the Underwriters hereunder.
(i) The Company shall have furnished to you the agreements described
in Section 2(p) of this Agreement.
6. INDEMNIFICATION. (a) The Company will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are 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, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending against any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
such Preliminary Prospectus, the Prospectus or such amendment or such supplement
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you specifically for use therein; and
provided further, that the foregoing indemnity with respect to Preliminary
Prospectuses shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if such untrue statement or
omission or alleged untrue statement or omission made in any Preliminary
Prospectus is eliminated or remedied in the Prospectus and a copy of the
Prospectus has not been furnished to the person asserting any such losses,
claims, damages, or liabilities at or prior to the written confirmation of the
sale of such Shares to such person. Such indemnity obligation will be in
addition to any liability which the Company may otherwise have. The indemnity
agreement of the Company contained in this paragraph (a) and the representations
and warranties of the Company contained in Section 2 hereof shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any indemnified party and shall survive the delivery of and
payment for the Shares.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors,
15
16
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are 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 reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through you specifically for use therein; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending against any
such loss, claim, damage, liability or action. Such indemnity obligation will be
in addition to any liability which such Underwriter may otherwise have. The
indemnity agreement of each Underwriter contained in this paragraph (b) shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any indemnified party and shall survive the delivery of
and payment for the Shares.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement thereof.
Indemnification shall not be available to any party who shall fail so to give
notice, if the party to whom notice was required to be given was unaware of the
action, suit, investigation, inquiry or proceeding to which the notice would
have related, to the extent that such party was prejudiced by the failure to
give notice; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel chosen by such indemnifying party which is reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying
16
17
party will not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnified party reasonably
determines that there may be a conflict between the positions of the
indemnifying party and of the indemnified party in conducting the defense of
such action, suit, investigation, inquiry or proceeding or that there may be
legal defenses available to such indemnified party different from or in addition
to those available to the indemnifying party, then counsel for the indemnified
party shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interests of the
indemnified party and (ii) in any event, the indemnified party (at its own
expense) shall be entitled to have counsel chosen by such indemnified party
participate in, but not conduct, the defense. No indemnifying party shall be
liable to any indemnified party in respect to any settlement effected without
its prior written consent, which consent shall not be unreasonably withheld. In
addition, the indemnifying party will not, without the prior written consent of
an indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party is a party to such claim, action or suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability arising out of such claim, action,
suit or proceeding.
7. CONTRIBUTION. In order to provide for just and equitable contribution
in case the indemnification provided for in Section 6 shall be unavailable to or
insufficient to hold harmless an indemnified party under Sections 6(a) or 6(b)
hereof, then each indemnifying party under any such paragraph, in lieu of
indemnifying such party thereunder, shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to
17
18
be in the same proportion as the total net proceeds from the offering of the
Shares (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, (i)
except as may be provided in its Master Agreement Among Underwriters provided to
Xxxxx & Company Incorporated, in no case shall any Underwriter be responsible
for any amount in excess of the underwriting discount and commission applicable
to the Shares purchased by such Underwriter hereunder and (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to contribution as such Underwriter, and each person,
if any, who controls the Company within the meaning of Section 15 of the Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same right to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 7. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this Section 7.
No party shall be liable for contribution with respect to any action or claim
settled
18
19
without its consent, which consent shall not be unreasonably withheld.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company or of the Underwriters
herein or in certificates delivered pursuant hereto shall remain operative and
in full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person, the Company, or any of its officers,
directors, or controlling persons, and shall survive delivery of the Shares to
the several Underwriters hereunder.
9. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
fail to take up and pay for the number of Shares to be purchased by such
Underwriter or Underwriters hereunder upon tender of such Shares in accordance
with the terms hereof, and if the aggregate number of Shares which such
defaulting Underwriter or Underwriters so agreed but failed to purchase does not
exceed 10% of the Shares, the remaining Underwriters shall be obligated
severally in proportion to their respective commitments hereunder to take up and
pay for the Shares of such defaulting Underwriter or Underwriters. If one or
more of the Underwriters shall fail or refuse (other than for a reason
sufficient to justify the termination of this Agreement) to purchase on any
Closing Date the aggregate number of Shares agreed to be purchased by such
Underwriter or Underwriters and the aggregate number of Shares agreed to be
purchased by such Underwriter or Underwriters shall exceed 10% of the aggregate
number of Shares to be sold on any Closing Date hereunder by the Company to the
Underwriters, then the other Underwriters shall have the right to purchase or
procure one or more other underwriters to purchase, in such proportions as they
may agree upon and upon the terms herein set forth, the Shares which such
defaulting Underwriter or Underwriters agreed to purchase, and this Agreement
shall be carried out accordingly. If such other Underwriters do not exercise
such right within thirty-six hours after receiving notice of any such default,
which notice the Representatives shall have also promptly delivered to the
Company, then the Company shall have the right, but not the obligation, to
procure another party or parties reasonably satisfactory to the Representatives
to purchase or agree to purchase such Shares on the terms herein set forth. If
the Company is unable to procure another such party, the Company shall have the
right, but not the obligation, to notify the Representatives that the
non-defaulting Underwriters are, by the giving of such notice, released from
their obligations to purchase such number of Shares being sold hereunder by the
Company as are indicated in such notice as, when subtracted from the total
number of Shares originally agreed to be purchased by all of the Underwriters
hereunder, shall leave a reduced number of Shares to be purchased by the
non-defaulting Underwriters not in excess of 110% of the aggregate number of
Shares originally
19
20
contracted to be purchased hereunder by the non-defaulting Underwriters, and
each of them, in which event such non-defaulting Underwriters shall purchase
such reduced number of Shares. In any such case, either the Representatives or
the Company shall have the right to postpone any Closing Date for a period of
not more than seven business days in order that necessary changes and
arrangements may be effected by the Representatives and the Company. If neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the period stated for the purchase of the Shares which such defaulting
Underwriter or Underwriters agreed to purchase, including such arrangements for
the purchase of a reduced number of Shares as are provided for in this Section
9, then this Agreement shall terminate without liability on the part of any
non-defaulting Underwriters to the Company and without liability on the part of
the Company to the Underwriters.
In the event of any termination of this Agreement pursuant to the
preceding paragraph of this Section, the Company shall not be under any
liability to any Underwriter (except as provided in Section 4(g) and 6 hereof)
nor shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase the
number of Shares to be purchased by such Underwriter hereunder, which
Underwriter shall remain liable to the Company and the other Underwriters for
damages resulting from such default) be under any liability to the Company
(except as provided in Section 6 hereof).
The term "Underwriter" in this Agreement shall include any person
substituted for an Underwriter under this Section 9.
10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at such time after the
declaration by the Commission of the effectiveness of the Registration Statement
as you in your discretion shall first release the Shares for sale to the public.
For the purposes of this Section, the Shares shall be deemed to have been
released for sale to the public upon release by you for publication of a
newspaper advertisement relating to the Shares or upon release by you of letters
or telegrams offering the Shares for sale to securities dealers, whichever shall
first occur. By giving notice as hereinafter specified before the time this
Agreement becomes effective, you, as Representatives of the several
Underwriters, or the Company may prevent this Agreement from becoming effective
without liability on the part of the Company to any Underwriter or of any
Underwriter to the Company, other than as provided in Sections 4(g) and 6
hereof.
(b) You, as Representatives of the several Underwriters, shall have
the right to terminate this Agreement by
20
21
giving notice as hereinafter specified at any time at or prior to the First
Closing Date if (i) the Company shall have failed, refused or been unable, at or
prior to the First Closing Date, to perform any material agreement on its part
to be performed, or because any other material condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is not fulfilled;
(ii) trading on the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange by the New York Stock Exchange or by order of the Commission or any
other governmental authority having jurisdiction, since the execution of this
Agreement; (iii) a banking moratorium shall have been declared by Federal or New
York authorities since the execution of this Agreement; or (iv) an outbreak of
major hostilities or other national calamity shall have occurred. Any such
termination shall be without liability on the part of the Company to any
Underwriter or of any Underwriter to the Company other than as provided in
Sections 4(g) and 6 hereof.
(c) If you elect to prevent this Agreement from becoming effective
or to terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter. If the
Company shall elect to prevent this Agreement from becoming effective, you shall
be notified promptly by the Company by telephone or telegram, confirmed by
letter.
11. AGREEMENTS OF THE UNDERWRITERS.
(a) Each Underwriter understands that no action has been or will be
taken in any jurisdiction (except in the United States) that would permit a
public offering of the Shares or the possession, circulation or distribution of
the Prospectus or any amendment or supplement thereto or any other material
relating to the Company or the Shares in any jurisdiction where action for that
purpose is required. Accordingly, each Underwriter agrees, on a several basis,
that it will not offer or sell, directly or indirectly, the Shares, nor will it
distribute or publish the Prospectus or any amendment or supplement thereto nor
any other offering material or advertisements in connection with the Shares, in
or from any country or jurisdiction except in compliance with any applicable
rules and regulations of any such country or jurisdiction.
(b) Each Underwriter represents and agrees, on a several basis, that
(i) it has not offered or sold and, for a period of six months following
consummation of the Offering, will not offer or sell any shares of Common Stock
to persons in the United Kingdom, except to a person whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Common Stock in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and
will only issue or pass on to any person in the United Kingdom any document
received by it in connection with the issuance of Common Stock if that person
is of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996, as amended, or is a person
to whom such document may otherwise lawfully be issued or passed on.
12. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered or telecopied and confirmed to you c/o Allen & Company
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with copy to Xxxxxx &
Carnelutti, a Professional Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxx X. Xxxxxxxx, Esq. or if sent to the Company shall be
mailed, delivered or telecopied and confirmed to the Company at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xx. Xxxxxxx X.
Xxxxxx, President with a copy to Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
Notice to any Underwriter pursuant to Section 6 shall be mailed, delivered or
telecopied and confirmed to such Underwriter's address as set forth in its
Master Agreement Among Underwriters furnished to Xxxxx & Company Incorporated.
13. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters and the Company and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person or corporation, other than the parties
hereto and their respective successors and assigns and the controlling
21
22
persons, officers and directors referred to in Section 6, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors, and for the benefit of no other person or
corporation. No purchaser of any of the Shares from any Underwriter shall be
construed a successor or assign merely by reason of such purchase.
In all dealings with the Company under this Agreement, you shall be
and are authorized to act on behalf of each of the several Underwriters, and the
Company shall be entitled to act and rely upon any statement request, notice or
agreement on behalf of each of the several Underwriters if the same shall have
been made or given in writing by you.
14. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made, and to be fully performed, therein.
22
23
If the foregoing correctly sets forth the understanding between the
Company and the several Underwriters, please so indicate in the space provided
below for that purpose whereupon this letter shall constitute a binding
agreement between the Company and the several Underwriters.
Very truly yours,
ANTHRA PHARMACEUTICALS, INC.
By:_________________________
President
Accepted as of the date
first above written:
XXXXX & COMPANY INCORPORATED
GRUNTAL & CO., L.L.C.
By: XXXXX & COMPANY INCORPORATED
By:___________________________
On behalf of each of the several
Underwriters named in Schedule A hereto.
23
24
SCHEDULE A
NUMBER
OF
NAME OF UNDERWRITER SHARES
------
Xxxxx & Company Incorporated......................................
Gruntal & Co., L.L.C. ............................................
Total............................................................. 2,700,000
25
SCHEDULE B
SUBSIDIARIES OF THE COMPANY
26
2,700,000 Shares
ANTHRA PHARMACEUTICALS, INC.
Common Stock
________________________
SELECTED DEALER AGREEMENT
________________, 1998
Dear Sirs:
1. PURCHASE OF SECURITIES BY THE SEVERAL UNDERWRITERS. The several
Underwriters named in the enclosed Prospectus, on whose behalf we are acting as
Representatives, have severally agreed to purchase from Anthra Pharmaceuticals,
Inc. (the "Company") an offering of 2,700,000 Shares of the Company's Common
Stock (the "Shares"), as set forth in the Prospectus and subject to the terms of
the Underwriting Agreement between the several Underwriters and the Company. The
Shares are described in the Prospectus, additional copies of which will be
supplied in reasonable quantities upon request to us.
2. OFFERING TO SELECTED DEALERS. One or more of the several Underwriters
acting through us are severally offering a portion of the Shares to certain
dealers ("Selected Dealers") as principals, subject to the terms and conditions
of their purchase, to the terms and conditions hereof, and to the modification
or cancellation of the offering without notice, at the public offering price set
forth in the Prospectus, less a concession not in excess of $.____ per Share.
Shares purchased by the several Underwriters, and not sold to the Selected
Dealers as aforesaid, may be sold by the several Underwriters. Any of the
several Underwriters may be included among the Selected Dealers.
The offering of a portion of the Shares to Selected Dealers may be made on
the basis of reservations or allotments against subscription. We are advising
you by telegram of the method and terms of the offering. Acceptance of any
reserved Shares received by us at the office of Xxxxx & Company Incorporated,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, after the time specified therefor in
the telegrams, and any subscriptions for additional Shares, will be subject to
prior sale and allotment. Subscription books may be closed by us at any time
without notice, and the right is reserved to reject any subscriptions in whole
or in part.
3. OFFERING TO PUBLIC BY SELECTED DEALERS. Upon receipt of the
aforementioned telegram, the Shares purchased by you hereunder may be re-offered
to the public in conformity with the
1
27
terms of offering set forth in the Prospectus. You may, in accordance with the
rules of the National Association of Securities Dealers, Inc., reallow a
concession of $.___ per Share sold by you to any other dealer or broker who is a
member of the National Association of Securities Dealers, Inc., provided such
discount is retained.
Neither you nor any other person is or has been authorized by the Company,
any of the several Underwriters or us to give information or make any
representations in connection with the sale of the Shares other than those
contained in the Prospectus.
In the event that during the term of this agreement we, as Representatives
for the account of the several Underwriters, shall purchase or contract to
purchase, at or below the original public offering price set forth in the
Prospectus, any of the Shares purchased by you hereunder (which Shares
theretofore were not effectively placed for investment by you, including Shares
represented by transfers), we may, at our election, either (a) require you to
repurchase such Shares at a price equal to the total cost of such Shares
purchased by us, including brokerage commissions, if any, and transfer taxes on
the redelivery, or (b) charge you with and collect from you an amount equal to
the selling concession with respect to the Shares so purchased by us.
4. PAYMENT AND DELIVERY. Payment for the Shares which you have agreed to
purchase hereunder shall be made by you on _______, 1998, or such later date as
we may advise you, at 9:00 a.m., New York Time, at Xxxxx & Company
Incorporated's office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, by
certified or bank cashier's check payable in New York Clearing House funds to
the order of Xxxxx & Company Incorporated, against delivery of such Shares.
Delivery instructions must be in our hands at said address at such time as we
request.
Additional Shares confirmed to you shall be delivered on such date or
dates as we shall advise you.
5. BLUE SKY MATTERS. Neither we nor any of the several Underwriters shall
have any obligation or responsibility with respect to the right of any dealer to
sell the Shares in any jurisdiction, notwithstanding any information which may
be furnished as to the states under the securities laws of which it is believed
the Shares may be sold.
6. TERMINATION. This agreement shall terminate 20 full days after the
First Closing Date (as defined in the Underwriting Agreement) but may be
extended for a period or periods not exceeding in the aggregate 20 days as we
may determine. We may terminate this Agreement at any time without prior notice.
Notwithstanding the termination of this agreement, you shall remain liable for
your portion of any transfer tax or other
2
28
liability which may be asserted or assessed against us or any one or more of the
several Underwriters or Selected Dealers based upon the claim that the Selected
Dealers or any of them constitute a partnership, an association, an
unincorporated business or other separate entity.
7. OBLIGATIONS OF SELECTED DEALERS. Your acceptance hereof will constitute
an obligation on your part to purchase, upon the terms and conditions hereof,
the aggregate amount of the Shares reserved for and accepted by you and to
perform and observe all the terms and conditions hereof.
You are not authorized to act as agent for any of the several Underwriters
in offering Shares to the public or otherwise. Nothing contained herein shall
constitute the Selected Dealers an association, or partners with the several
Underwriters, with us, or with each other.
8. POSITION OF THE REPRESENTATIVES. We shall have full authority to take
such action as we may deem advisable in respect of all matters pertaining to the
offering or arising hereunder, but shall act only as Representatives of the
several Underwriters. Neither we nor any of the several Underwriters shall be
under any liability to you, except for our own want of good faith, obligations
assumed in this agreement, or any liabilities arising under the Securities Act
of 1933. No obligation not expressly assumed by us in this agreement shall be
implied hereby or inferred herefrom.
9. NOTICES. All communications from you should be addressed to us, c/o
Allen & Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any
notice from us to you shall be deemed to have been duly given if mailed or
telegraphed to you at the address to which this letter is mailed.
Please confirm the foregoing by signing the duplicate copy of this
agreement enclosed herewith and returning it to us at the address in Section 9
above.
Very truly yours,
XXXXX & COMPANY INCORPORATED
GRUNTAL & CO., L.L.C.
By: XXXXX & COMPANY INCORPORATED
By:_________________________
Vice President
3
29
XXXXX & COMPANY INCORPORATED
GRUNTAL & CO., L.L.C.
As Representatives of the Several
Underwriters
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Sirs:
We hereby confirm our agreement to purchase Shares of the Anthra
Pharmaceuticals, Inc. (the "Shares"), subject to your acceptance or rejection in
whole or in part in the case of a subscription subject to allotment or in excess
of any reservation, and subject to all the other terms and conditions stated in
the foregoing letter.
We hereby acknowledge receipt of the prospectus relating to the above
described Shares (the "Prospectus") and we further state that in purchasing the
Shares confirmed to us we have relied upon such Prospectus and on no other
statements whatsoever, written or oral.
We hereby represent that we are a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and agree to comply with the
provisions of Article III, Section 24 of the NASD's Rules of Fair Practice (the
"NASD Rules"), or, if we are not such a member, we are a foreign dealer or
institution that is not registered under Section 15(b) of the Securities
Exchange Act of 1934 and that hereby agrees (i) to make no sales within the
United States, its territories or its possessions or to persons who are citizens
thereof or residents therein, (ii) if the offering of the Shares is one within
the scope of the NASD's Interpretation with Respect to Free-Riding and
Withholding, not to make other sales of Shares to persons enumerated in
paragraphs "1" through "5" of such Interpretation or in a manner inconsistent
with paragraph "6" thereof and (iii) to comply with the provisions of Article
III, Sections 8, 24, 25 (as applicable to a non-member broker/dealer in a
foreign country) and 36 of the NASD Rules.
Name of Selected Dealer
____________________________________
____________________________________
(Authorized Signature)
Dated:________________ , 199__
