Progenics Pharmaceuticals, Inc. 1,532,467 Shares Common Stock ($0.0013 par value) Underwriting Agreement
EXHIBIT 1.1
Progenics Pharmaceuticals, Inc.
1,532,467 Shares
Common Stock
($0.0013 par value)
New York, New York
June 10, 2005
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Progenics Pharmaceuticals, Inc., a corporation organized under the laws of Delaware (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”) 1,532,467 shares of Common Stock, $0.0013 par value (“Common Stock”), of the Company (said shares to be issued and sold by the Company being hereinafter called the “Securities”). To the extent there are no additional Underwriters listed on Schedule I other than you, the term Underwriters shall mean either the singular or plural as the context requires. Any reference herein to the Registration Statement, the Base Prospectus, 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 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement, or the issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be, that is deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations
and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1. |
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement (file number
333-115895) on Form S-3, including a Base Prospectus, for registration
under the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including a Preliminary Prospectus,
each of which has previously been furnished to you. The Company will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to such
registration statement (including the form of final prospectus and final
prospectus supplement) or (2) after the Effective Date of such registration
statement, a final prospectus and final prospectus supplement in accordance
with Rule 424(b). In the case of clause (2), the Company has included in
such registration statement, as amended at the Effective Date, all information
required by the Act to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus and final
prospectus supplement (in the case of clause (1) of the third sentence
of this Section 1(a)), or such final prospectus and final prospectus supplement
(in the case of clause (2) of such sentence), shall contain all required
information, and, except to the extent the Underwriters shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus
and the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. |
||
(b) On
the Effective Date, the Registration Statement did, and when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined herein) the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable requirements
of the Act and the Exchange Act; on the Effective Date and at the Execution
Time, the Registration Statement did not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading;
and, on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Prospectus (together with any supplement thereto)
will not include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration Statement,
or the Prospectus (or any supplement thereto) in reliance upon and in conformity
with information relating to the Underwriters furnished in writing to the
Company by or on behalf of any Underwriter specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement thereto).
The Registration Statement was declared effective at 12:00 p.m. (Eastern
Time) on March 18, 2005. |
(c) The
Company has been duly organized and is validly existing and in good standing
under the laws of the State of Delaware, and PSMA Development Company LLC,
a Delaware limited liability company (the “LLC”), has been
duly formed and is validly existing and in good standing under the laws
of the State of Delaware, in each case with full corporate (in the case
of the Company) or limited liability company (in the case of the LLC) power
and authority to own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation (in the case of the Company) or
limited liability company (in the case of the LLC) and is in good standing
under the laws of each jurisdiction wherein it owns or leases properties
or conducts business and where the failure to be so qualified would, individually
or in the aggregate, have a material adverse effect on the condition (financial
or otherwise), prospects, results of operations, business or properties
of the Company and the LLC, taken as a whole, whether or not arising from
transactions in the ordinary course of business; notwithstanding the foregoing,
the Company is duly qualified to do business as a foreign corporation,
and the LLC is duly qualified to do business as a foreign limited liability
company, and each of them is in good standing, in each case under the laws
of the State of New York. |
||
(d) The membership interests in the LLC that are held by the Company (i) represent fifty percent (50%) of the outstanding membership interests of the LLC and (ii) are owned by the Company free and clear of any security interests, claims, liens or encumbrances, other than encumbrances imposed pursuant to the terms of the Limited Liability Company Agreement of PSMA Development Company LLC dated June 15, 1999. The Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or business, except for such control as it may exert over the LLC as a result of its membership interest in the LLC. |
(e) The Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; upon official notice of issuance, the Securities will be duly listed on the NASDAQ National Market; the certificates for the Securities are in the form duly authorized by the Board of Directors of the Company and comply in all material respects with the requirements of the Delaware General Corporation Law (the “DGCL”); the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding. |
(f) There
is no franchise, contract or other document of a character required by
the Act to be described in the Registration Statement or Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as required;
and the statements in the Prospectus under the headings “Risk Factors – Disputes
with Cytogen could delay or halt our PSMA programs,” – “If
we do not remedy our failure to achieve milestones or satisfy conditions
regarding some of our product candidates, we may not maintain our rights
under our licenses relating to these product candidates,” – “We
are subject to extensive regulation, which can be costly and time consuming
and can subject us to unanticipated fines and delays,” – “We
do not yet have, and may never obtain, the regulatory approvals we need
to market our products,” – “We are dependent on our patents
and other intellectual property rights. The validity, enforceability and
commercial value of these rights are highly uncertain,” – “We
are dependent on third parties for a variety of functions. These arrangements
may not provide us with the benefits we expect,” – “If
we are unable to obtain sufficient quantities of the raw and bulk materials
needed to make our products, our product development and commercialization
could be slowed or stopped,” –“Anti-takeover provisions
may make the removal of our Board of Directors or management more difficult
and discourage hostile bids for control of our company that may be beneficial
to our stockholders,” and in the Company’s Annual Report on
Form 10-K for the year ended December 31, 2004 (the “2004 10-K”)
under the headings “Part I – Item 1. Business – Joint Venture
Relating to PSMA,” – “Licenses,” – “Patents
and Proprietary Technology,” and – “Government Regulation,” in
each case insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries
of such legal matters, agreements, documents or proceedings. |
||
(g) This
Agreement has been duly authorized, executed and delivered by the Company. |
(h) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in
the Prospectus, will not be an “investment company” as defined
in the Investment Company Act of 1940, as amended. |
(i) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required on the part of the Company in connection
with the transactions contemplated herein, except such as have been obtained
under the Act and the applicable rules of the National Association of Securities
Dealers, Inc., and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated herein and in the Prospectus. |
(j) Neither
the issue and sale of the Securities nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
or the LLC pursuant to, (i) the charter, by-laws or other organizational
document of the Company or the LLC, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Company
or the LLC is a party or bound or to which any of the Company’s or
the LLC’s property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or the LLC of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or the LLC or any
of the Company’s or the LLC’s properties. |
||
(k) No
holders of securities of the Company have rights to the registration of
such securities under the Registration Statement, other than those rights
which have been waived. |
(l) The
historical financial statements of the Company included in the Prospectus
and the Registration Statement present fairly in all material respects
the financial condition, results of operations and cash flows of the Company
as of the dates and for the periods indicated, comply as to form in all
material respects with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial data set forth
under the caption “Part II – Item 6. – Selected Financial
Data” in the 2004 10-K, which is incorporated by reference into the
Prospectus and Registration Statement, fairly present, on the basis stated
in the Prospectus and the Registration Statement, the information included
therein. |
(m) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or the LLC or
the Company’s or the LLC’s property is pending or, to the knowledge
of the Company, threatened that (i) would have a material adverse effect
on the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would have a material adverse
effect on the condition (financial or otherwise), prospects, results of
operations, business or properties of the Company and the LLC, taken as
a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto). |
(n) The
real and personal properties owned or leased by the Company and the LLC
are adequate in all material respects for the conduct of the Company’s
and the LLC’s businesses as described in the Registration Statement
and the Prospectus. |
(o) Neither
the Company nor the LLC is in violation or default of (i) any provision
of its charter, bylaws or other organizational document, (ii) other than
as disclosed in or contemplated by the Prospectus, the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which the Company’s or the LLC’s
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company
or the LLC or the Company’s or the LLC’s property, as applicable,
where, in the case of clauses (ii) and (iii) only, the consequence of any
such violation or default, individually or in the aggregate, would have
a material adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and the LLC,
taken as a whole, whether or not arising from transactions in the ordinary
course of business. |
||
(p) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and
delivered their report with respect to the audited financial statements
included in the Prospectus, is an independent registered public accounting
firm with respect to the Company within the meaning of the Sarbanes Oxley
Act of 2002 (the “Sarbanes Oxley Act”) and the rules and regulations
of the Public Company Accounting Oversight Board. |
(q) There
are no transfer taxes or other similar fees or charges under Federal law
or the laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this Agreement
or the issuance or sale by the Company to the Underwriters of the Securities. |
(r) The
Company has filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof (except in
any case in which the failure so to file could not reasonably be expected
to have a material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company
and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business), except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto), and has paid all
taxes required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as could not reasonably be expected to have
a material adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and the LLC,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). |
(s) No
labor problem or dispute with the employees of the Company or the LLC exists
or, to the Company’s knowledge, is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or the LLC’s principal suppliers, contractors
or customers, that could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, results of
operations, business or properties of the Company and the LLC, taken as
a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto). |
||
(t) The
Company and the LLC are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; all material policies of insurance
and fidelity or surety bonds insuring the Company or the LLC or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and the LLC are in compliance with the terms of
such policies and instruments in all material respects; and there are no
material claims by the Company or the LLC under any such policy or instrument
as to which any insurance company is denying liability or defending under
a reservation of rights clause; and neither the Company nor the LLC 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 could not reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), prospects, results of operations,
business or properties of the Company and the LLC, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto). |
(u) The
Company and the LLC possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except for
such licenses, certificates, permits and other authorizations the absence
of which, individually or in the aggregate, could not reasonably be expected
to have a material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company
and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto). Neither the Company
nor the LLC has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit, the results
of which proceeding could reasonably be expected, singly or in the aggregate,
to have a material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company
and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto). |
(v) The
Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences. |
(w) The
Company has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale
of the Securities. |
||
(x) The
Company and the LLC are (i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice
of any actual or potential liability under any environmental law, except
where such non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability could not reasonably
be expected, individually or in the aggregate, to have a material adverse
effect on the condition (financial or otherwise), prospects, results of
operations, business or properties of the Company and the LLC, taken as
a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto). Neither the Company nor the LLC has been named
as a “potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended. |
(y) In
the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties
of the Company and the LLC, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or approval,
any related constraints on operating activities and any potential liabilities
to third parties). On the basis of such review, the Company has concluded
that such associated costs and liabilities could not reasonably be expected,
singly or in the aggregate, to have a material adverse effect on the condition
(financial or otherwise), prospects, results of operations, business or
properties of the Company and the LLC, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto). |
(z) The
minimum funding standard under Section 302 of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published interpretations
thereunder (“ERISA”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has been established
or maintained by the Company and/or the LLC, and all “pension plans” maintained
by the Company or the LLC that are intended to be qualified under Section
401(a) of the Code have received determination letters of the Internal
Revenue Service to the effect that such plans are so qualified, and to
the knowledge of the Company, no facts exist that are reasonably likely
to adversely effect the “qualified” status of any such plans;
neither the Company nor the LLC maintains or is required to contribute
to a “welfare plan” (as defined in Section 3(1) of ERISA) which
provides retiree or other post-employment welfare benefits or insurance
coverage (other than “continuation coverage” (as defined in
Section 602 of ERISA)); each pension plan and welfare plan established
or maintained by the Company and/or the LLC is in compliance in all material
respects with the currently applicable provisions of ERISA; and neither
the Company nor the LLC has incurred or could reasonably be expected to
incur any withdrawal liability under Section 4201 of ERISA, any liability
under Section 4062, 4063, or 4064 of ERISA, or any other liability under
Title IV of ERISA. |
||
(aa) There
is and has been no failure on the part of the Company or, to the Company’s
knowledge, any of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any provision, to the
extent effective, of the Sarbanes Oxley Act and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans,
Section 404 related to internal control over financial reporting, and Sections
302 and 906 related to certifications. |
(bb) Neither
the Company nor the LLC nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or the LLC is aware
of or has taken any action, directly or indirectly, that would result in
a violation by such Persons of 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, the LLC and, to the knowledge
of the Company, its affiliates have conducted their businesses in compliance
with the FCPA. |
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. |
(cc) Except
as described in or contemplated by the Prospectus, the Company and the
LLC own, possess, license or have other rights to use, all patents, patent
applications, trade and service marks, trade and service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the “Intellectual
Property”) necessary for the conduct of the Company’s business
as now conducted or as proposed in the Prospectus to be conducted (collectively, “Company
Intellectual Property”). Except as set forth in the Prospectus or
such as could not reasonably be expected, individually or in the aggregate,
to have a material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company
and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, (a) to the Company’s knowledge,
there are no rights of third parties to any Company Intellectual Property
other than the retained rights of licensors with respect to licensed Company
Intellectual Property; (b) to the Company’s knowledge, there is no
infringement by third parties of any Company Intellectual Property; (c)
there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s rights
in or to any Company Intellectual Property, and the Company is unaware
of any facts which would form a reasonable basis for any such claim; (d)
there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of
any Company Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (e) there is no
pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise violates
any Intellectual Property of others, and the Company is unaware of any
other fact which would form a reasonable basis for any such claim; (f)
to the Company’s knowledge, there is no U.S. patent or published
U.S. patent application which contains claims that dominate, or, with respect
to such published patent applications, that may dominate if issued, any
Company Intellectual Property or that interferes with the issued or pending
claims of any Company Intellectual Property; and (g) there is no prior
art of which the Company is aware that could reasonably be expected to
render any U.S. patent held by the Company invalid or any U.S. patent application
held by the Company unpatentable which has not been disclosed to the U.S.
Patent and Trademark Office. |
||
(dd) Each
of the Company and the LLC has filed with the U.S. Food and Drug Administration
(the “FDA”) and all other applicable foreign, state and local
regulatory bodies for, and received approval of, all registrations, applications,
licenses, requests for exemptions, permits and other regulatory authorizations
material to the conduct of its business as now conducted; each of the Company
and the LLC is in compliance in all material respects with all such registrations,
applications, licenses, requests for exemptions, permits and other regulatory
authorizations, and all applicable FDA, foreign, state and local rules
and regulations; and the Company has no reason to believe that any party
granting any such registration, application, license, request for exemption,
permit or other authorization is considering limiting, suspending or revoking
the same in any material respect. |
(ee) Each
of the human clinical trials, animal studies and other preclinical tests
conducted by the Company or the LLC, or in which the Company or the LLC
has participated, that are described in the Registration Statement or the
Prospectus or the results of which are referred to in the Registration
Statement or the Prospectus, and such studies and tests conducted on behalf
of the Company or the LLC, were and, if still pending, are being conducted
in all material respects (i) in accordance with experimental protocols,
procedures and controls generally used by qualified experts in the preclinical
or clinical study of products comparable to those being developed by the
Company and (ii) in compliance with all applicable current Good Laboratory
and Good Clinical Practices; the descriptions of the results of such studies,
tests and trials contained in the Registration Statement and the Prospectus
are accurate and complete in all material respects, and the Company has
no knowledge of any other trials, studies or tests, the results of which
reasonably call into question the results described or referred to in the
Registration Statement and the Prospectus; other than as described in or
contemplated by the Prospectus, neither the Company nor the LLC has received
any notices or correspondence from the FDA or any other governmental agency
requiring the termination, suspension or modification (other than such
suspensions as have been lifted or such modifications as have been complied
with) of any animal studies, preclinical tests or clinical trials conducted
by or on behalf of the Company or the LLC or in which the Company or the
LLC has participated that are described in the Registration Statement or
the Prospectus or the results of which are referred to in the Registration
Statement or the Prospectus. |
||
Any certificate signed by any officer of the Company and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties 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 $18.63
per share, the amount of Securities set forth opposite such Underwriter’s
name in Schedule I hereto. |
3. Delivery
and Payment. Delivery of and payment for the Securities shall be
made at 10:00 AM, New York City time, on June 15, 2005, or at such time
on such later date not more than three Business Days after the foregoing
date as the Underwriters shall designate, which date and time may be
postponed by agreement between the Underwriters and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing Date”).
Delivery of the Securities shall be made to the Underwriters for the
respective accounts of the several Underwriters against payment by the
several Underwriters of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made through
the facilities of The Depository Trust Company unless the Underwriters
shall otherwise instruct not less than two full Business Days prior to
the Closing Date. |
4. Offering
by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Prospectus. |
|
5. Agreements.
The Company agrees with the several Underwriters that:
|
(a) The
Company will use its best efforts to cause the Registration Statement,
if not effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement to the Base Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if filing of the
Prospectus is required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form approved
by the Underwriters with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence
reasonably satisfactory to the Underwriters of such timely filing. The
Company will promptly advise the Underwriters (1) when the Registration
Statement, if not effective at the Execution Time, shall have become effective,
(2) when the Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective,
(4) of any request by the Commission or its staff for any amendment of
the Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening
of any proceeding for that purpose and (6) of the receipt by the Company
of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. |
(b) If,
at any time when a prospectus relating to the Securities is required to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not misleading,
or if it shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the Exchange Act, the Company
promptly will (1) notify the Underwriters of such event, (2) prepare and
file with the Commission, subject to the second sentence of paragraph (a)
of this Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented Prospectus
to you in such quantities as you may reasonably request. |
(c) As
soon as practicable, the Company will make generally available to its security
holders and to the Underwriters an earnings statement or statements of
the Company and the LLC which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act. |
||
(d) The
Company will furnish to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as many copies
of the Prospectus and any supplement thereto as the Underwriters may reasonably
request. The Company will pay the reasonable expenses of printing or other
production of all documents relating to the offering. |
(e) The
Company will arrange, to the extent necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the Underwriters
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay any fee required to
be paid to the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject. |
(f) The
Company will not, without the prior written consent of UBS Securities LLC,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common Stock
or any securities convertible into, or exercisable, or exchangeable for,
shares of Common Stock, or publicly announce an intention to effect any
such transaction, for a period of 60 days after the date of the Underwriting
Agreement, provided, however, that (i) the Company may issue and sell Common
Stock or issue stock options pursuant to any employee stock option plan,
employee stock purchase plan, stock ownership plan or dividend reinvestment
plan of the Company; (ii) the Company may issue Common Stock issuable upon
the conversion of securities or the exercise of warrants outstanding at
the Execution Time; (iii) the Company may issue or sell securities, or
enter into options, warrants or other agreements providing for the issuance
or sale of securities, to a strategic partner or in connection with a strategic
collaboration, joint venture, licensing arrangement or other similar corporate
transaction, provided that such strategic partner, collaborator, joint
venture partner, licensee or licensor agrees to be bound to the same extent
as the Company by the terms of this paragraph 5(f) (excluding the exceptions
set forth in (i), (ii) and (iii) hereof); (iv) the Company may file registration
statements on Form S-8 relating to shares of common stock which may be
issued pursuant to any employee stock option plan of the Company and (v)
the Company may file a registration statement on Form S-3 for a shelf registration
of shares of common stock pursuant to Rule 415 promulgated under the Securities
Act. |
||
(g) The
Company will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale
of the Securities. |
6. Conditions
to the Obligations of the Underwriters. The obligations of the Underwriters
to purchase the Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company contained herein as of the
Execution Time and the Closing Date to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder and to
the following additional conditions: |
(a) If
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed
in the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened. |
(b) The
Company shall have requested and caused Xxxxx Xxxxxxxxxx LLP, counsel for
the Company, to have furnished to the Underwriters their opinion, dated
the Closing Date and addressed to the Underwriters, to the effect that: |
(i) the
Company has been duly incorporated under the DGCL, and the LLC has been
duly formed under the Delaware Limited Liability Company Act, and each
of them is validly existing and in good standing under the laws of the
State of Delaware, with full corporate (in the case of the Company) or
limited liability company (in the case of the LLC) power and authority
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation, and the LLC is
duly qualified to do business as a foreign limited liability company, and
each of them is in good standing, in each case under the laws of the State
of New York; |
(ii) the
Company’s authorized capital stock is as set forth in the Prospectus;
the capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus; the outstanding shares
of Common Stock have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be fully paid and
nonassessable; the Company has complied in all material respects with the
published rules of The Nasdaq Stock Market Inc. regarding the issuance
of additional shares as such rules relate to the issuance of the Securities,
and upon official notice of issuance, the Securities will be duly listed
on the NASDAQ National Market; the certificates for the Securities comply
in all material respects with the requirements of the DGCL; and the holders
of outstanding shares of capital stock of the Company are not entitled,
in connection with the issuance of the Securities, to any preemptive rights
to subscribe for Securities pursuant to the DGCL or the certificate of
incorporation or bylaws of the Company, or any agreement filed as an exhibit
to the Registration Statement or any document incorporated by reference
therein; |
|||
(iii) to
the knowledge of such counsel, (A) there is no pending or threatened action,
suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or the LLC or the Company’s
or the LLC’s property of a character required by Item 103 of Regulation
S-K promulgated under the Act to be disclosed in the Registration Statement
which is not disclosed in the Prospectus as required, and (B) there is
no contract or other document of a character required by the Act to be
described in the Registration Statement or Prospectus, or to be filed as
an exhibit thereto, which is not described or filed as required; and the
statements included or incorporated by reference in the Prospectus under
the headings “Risk Factors – If we do not remedy our failure
to achieve milestones or satisfy conditions regarding some of our product
candidates, we may not maintain our rights under our licenses relating
to these product candidates,” – “We are dependent on our
patents and proprietary rights. The validity, enforceability and commercial
value of these rights are highly uncertain,” – “If we
are unable to obtain sufficient quantities of the raw and bulk materials
needed to make our products, our product development and commercialization
could be slowed or stopped,” – “Anti-takeover provisions
may make the removal of our Board of Directors or management more difficult
and discourage hostile bids for control of our company that may be beneficial
to our stockholders,” and in the 2004 10-K under the headings “Part
I – Item 1. Business – Joint Venture Relating to PSMA,” and “– Licenses” (to
the extent such statements describe the Company’s certificate of
incorporation or any agreements that are filed as an exhibit to the Registration
Statement or any document incorporated by reference therein), are correct
in all material respects; |
(iv) the
Registration Statement has become effective under the Act; any required
filing of the Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period required
by Rule 424(b); to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened; and the
Registration Statement and the Prospectus and all documents incorporated
by reference in the Registration Statement and the Prospectus (other than
the financial statements and other financial, accounting and statistical
information contained therein, as to which such counsel need express no
opinion) comply or, with respect to the documents incorporated by reference,
when such documents became effective or were filed with the Commission,
complied as to form in all material respects with the applicable requirements
of the Act and the Exchange Act; |
|||
(v) this
Agreement has been duly authorized, executed and delivered by the Company; |
(vi) the
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in
the Prospectus, will not be an “investment company” as defined
in the Investment Company Act of 1940, as amended; |
(vii) no
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction, or
by the National Association of Securities Dealers, Inc. with respect to
the underwriting arrangements, in connection with the purchase and distribution
of the Securities by the Underwriters in the manner contemplated in this
Agreement and in the Prospectus and such other approvals as have been obtained; |
(viii) neither
the issue and sale of the Securities, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
or the LLC pursuant to, (1) the charter, by-laws or other organizational
document of the Company or the LLC, (2) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument filed as an exhibit
to the Registration Statement or any document incorporated by reference
therein, or (3) any statute, law, rule or regulation applicable to the
Company or the LLC, or any judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or the LLC or any of the Company’s
or the LLC’s properties known to such counsel to be applicable to
the Company or the LLC; and |
(ix) no
holders of securities of the Company have rights to the inclusion of such
securities in the offering pursuant to the terms of any agreement filed
as an exhibit to the Registration Statement or any document incorporated
by reference therein, other than those rights which have been waived. |
|||
In addition, such counsel shall state as follows: Such counsel has not undertaken to determine independently, and therefore does not assume any responsibility explicitly or implicitly for the accuracy, completeness or fairness of the statements contained in the Registration Statement and in the Prospectus (except to the extent set forth in paragraph (iii) above). Such counsel has participated in conferences with officers of the Company, representatives of the Underwriters, representatives of counsel to the Underwriters and representatives of the Company's independent auditors during which conferences the contents of the Registration Statement and the Prospectus were reviewed and discussed. Based upon and subject to the foregoing, nothing has come to such counsel’s attention that causes them to believe that the Registration Statement, at the time it became effective, 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, or that the Prospectus, as of its date or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except in each case as to the financial statements and the notes thereto and other financial, accounting and statistical data included or incorporated by reference therein, as to which such counsel need make no comment). |
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. |
(c) The
Company shall have requested and caused Xxxxxx & Xxxxxx LLP, patent
counsel for the Company, to have furnished to the Underwriters their opinion,
dated the Closing Date and addressed to the Underwriters, to the effect
that such counsel is familiar with the technology used by the Company in
its business and has read the portions of the Registration Statement and
the Prospectus headed “Risk Factors – We are dependent upon
our patents and other intellectual property rights. The validity, enforceability
and commercial value of these rights are highly uncertain,” and in
the 2004 10-K under the headings “Part I – Item 1. Business – Licenses” and “– Patents
and Proprietary Technology” (collectively, the “Technology
Portion”), and that, except to the extent that the following opinions
relate to the methylnaltrexone technology and products of the Company,
the ganglioside conjugate vaccine technology and products of the Company,
and the PSMA technology and product development programs of the Company
and the LLC, as to which such counsel provides no opinion: |
||
(i) such
counsel has no knowledge of any facts that would preclude the Company from
having clear title to the Company’s patents or patent applications
referenced in the Technology Portion. To such counsel’s knowledge,
the Company does not lack and will not be unable to obtain any rights or
licenses to use any patent or know-how necessary to conduct the business
now conducted or proposed to be conducted by the Company as described in
the Prospectus, including but not limited to the Company’s business
relating to HIV receptor technology and products (except with respect to
the Columbia License Agreement and the Columbia Licensed Patents, as to
which such counsel need express no opinion). To such counsel’s knowledge,
the Company has not received any notice of infringement or of conflict
with asserted rights of others insofar as any patents, patent applications,
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses or know-how, proprietary techniques, including
processes and substances, and other similar rights and proprietary knowledge
(except with respect to the Columbia License Agreement and the Columbia
Licensed Patents, as to which such counsel need express no opinion) which
could result in a material adverse effect on the condition (financial or
otherwise), prospects, earning, business or properties of the Company and
the LLC, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto). Such counsel is
not aware of any issued patents of others (except with respect to the Columbia
License Agreement and the Columbia Licensed Patents, as to which such counsel
need express no opinion) that are infringed by specific products or processes
of the Company, as described in the Prospectus, in such manner as to materially
and adversely affect the Company; |
(ii) to
such counsel’s knowledge, there are no legal or governmental proceedings
pending relating to trade secrets, trademarks, service marks or other proprietary
information or materials of the Company or the LLC (except with respect
to the Columbia License Agreement and the Columbia Licensed Patents, as
to which such counsel need express no opinion), other than review of pending
applications for patents, and to such counsel’s knowledge no such
proceedings are threatened or contemplated by governmental authorities
or others; |
(iii) such
counsel does not know of any material contracts or other material documents
relating to the Company’s proprietary information (except with respect
to the Columbia License Agreement and the Columbia Licensed Patents, as
to which such counsel need express no opinion), other than those filed
as exhibits to the Registration Statement, the 2004 10-K; and |
||||
(iv) the
statements in the Technology Portion (except with respect to those statements
that describe the Columbia License Agreement and the Columbia Licensed
Patents, as to which such counsel need express no opinion), insofar as
such statements constitute a summary of documents referred to therein or
matters of law, are accurate summaries and fairly and correctly present,
in all material respects, the information called for with respect to such
documents and matters, and such counsel has no reason to believe that the
statements therein are untrue or that there is an omission to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. Such counsel may rely on representations of the
Company with respect to the factual matters contained in such statements,
provided that such counsel shall state that nothing has come to the attention
of such counsel that leads them to believe that such representations are
not true and correct in all material respects. |
(d) The
Company shall have requested and caused Wolf, Greenfield & Sacks, P.C.,
special patent counsel for the Company, to have furnished to the Underwriters
their opinion dated the Closing Date and addressed to the Underwriters,
to the effect that such counsel is familiar with the Company’s methylnaltrexone
technology and products, its ganglioside conjugate vaccine technology and
products, and its joint venture for the development of product candidates
based on PSMA technology licensed from Xxxxx-Xxxxxxxxx and has read the
Technology Portion, and that, solely with respect to the Company’s
methylnaltrexone technology and products (“MNTX Products”),
its ganglioside conjugate vaccine technology and products (the “Conjugate
Vaccines”), and its joint venture for the development of product
candidates based on PSMA technology licensed from Xxxxx-Xxxxxxxxx: |
(i) to
such counsel’s knowledge, the Company does not lack and will not
be unable to obtain any rights or licenses to use any patent or know-how
necessary to make, use, import, offer for sale and sell the Company’s
MNTX Products or Conjugate Vaccines described in the Prospectus and as
presently used by the Company or as proposed to be used and sold by the
Company as described in the Prospectus. To such counsel’s knowledge,
the Company has not received any notice of infringement or of conflict
with asserted rights of others with respect to any patents, patent applications,
licenses or know-how, proprietary techniques, including processes and substances,
and other similar rights and proprietary knowledge that could result in
a material adverse effect on the condition (financial or otherwise), prospects,
earning, business or properties of the Company and the LLC, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto). Such counsel is not aware of any patents of
others that are not licensed by the Company and that are infringed by the
Company as a result of the Company’s making, using, importing, offering
for sale or selling its MNTX Products or Conjugate Vaccines; |
||||
(ii) to
such counsel’s knowledge, neither the Company nor the LLC has received
any notice of infringement or of conflict with asserted rights of others
with respect to any patents, patent applications, licenses or know-how,
proprietary techniques, including processes and substances, and other similar
rights and proprietary knowledge in the field of using PSMA for the treatment
of disease that could result in a material adverse effect on the condition
(financial or otherwise), prospects, earning, business or properties of
the Company and the LLC, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto); |
(iii) to
such counsel’s knowledge, there are no legal or governmental proceedings
pending relating to proprietary information or materials of the Company,
other than review of pending applications for patents, and to such counsel’s
knowledge no such proceedings are threatened or contemplated by governmental
authorities or others; and |
(iv) the
statements in the Technology Portion, insofar as such statements constitute
a summary of patents or of law, are accurate summaries and fairly and correctly
present, in all material respects, the information called for with respect
to such matters and such counsel has no reason to believe that the statements
therein are untrue or that there is an omission to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however that such counsel may rely on representations
of the Company and the LLC with respect to the factual matters contained
in such statements, provided that such counsel shall state that
nothing has come to the attention of such counsel which leads them to believe
that such representations are not true and correct in all material respects. |
(e) The
Underwriters shall have received from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and
Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Underwriters, with respect to the
issuance and sale of the Securities, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. |
(f) The
Company shall have furnished to the Underwriters a certificate of the Company,
signed by the Chief Executive Officer and the Chief Financial Officer of
the Company, acting solely in their capacities as such, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to
the Prospectus and this Agreement and that: |
|||
(i) the
representations and warranties of the Company in this Agreement are true
and correct on and as of the Closing Date with the same effect as if made
on the 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 the Closing Date; |
(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 the Company’s knowledge, threatened; |
(iii) since
the date of the most recent financial statements included or incorporated
by reference in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company
and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto); |
(iv) the
membership interest in the LLC that is held by the Company represents fifty
percent (50%) of the outstanding membership interests of the LLC: and |
(v) except
as set forth in the Prospectus, no options, warrant or other rights to
purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding. |
(g) The
Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Underwriters, at the Execution Time and at the Closing
Date, letters in accordance with Statement on Accounting Standards No.
72, dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Underwriters, to the effect that: |
(i) they
are independent registered public accountants with respect to the Company
within the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder; |
(ii) in
their opinion, the audited financial statements included or incorporated
by reference in the Registration Statement and the Prospectus and reported
on by them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission; |
||||
(iii) on
the basis of procedures (but not an audit in accordance with generally
accepted auditing standards) consisting of: |
(1) reading
the minutes of the meetings of the stockholders, directors and executive
and audit committees of the Company since December 31, 2004 as set forth
in the minute books through a specified date not more than five business
days prior to the date of delivery of such letter; |
(2) performing
the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described
in Statement on Auditing Standards No. 100, Interim Financial Information,
on the unaudited interim financial statements of the Company included or
incorporated by references in the Registration Statement and the Prospectus;
and |
(3) making
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company as to transactions and
events subsequent to December 31, 2004; |
nothing came to their attention which caused them to believe that: |
(a) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; |
(b) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; | ||||||
(c) with respect to the period subsequent to March 31, 2005, there were any changes, at a specified date not more than five business days prior to the date of delivery of such letter, in the capital stock of the Company, or increases in long-term debt of the Company as compared with the amounts shown on the March 31, 2005 balance sheet included or incorporated by reference in the Registration Statement and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters. |
(iv) Such
letter shall also state that they have performed certain other specified
procedures as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company) set forth in under the captions “Summary
Financial Data,” “Risk Factors,” “Capitalization,” and “Dilution,” in
the Prospectus, the information included or incorporated by reference in
Items 1, 6, 7 and 12 of the Company’s Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the Prospectus,
and the information included in the “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” included
or incorporated by reference in the Company’s Quarterly Report on
Form 10-Q for the period ended March 31, 2005, incorporated by reference
in the Registration Statement and the Prospectus, agrees with the accounting
records of the Company, excluding any questions of legal interpretation. |
References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. |
(h) Subsequent
to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof)
and the Prospectus (exclusive of any supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or properties
of the Company and the LLC, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Underwriters, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto). |
|||
. |
(i) Prior
to the Closing Date, the Company shall have furnished to the Underwriters
such further information, certificates and documents as the Underwriters
may reasonably request. |
(j) The
Securities shall have been approved for quotation on the NASDAQ National
Market, subject only to official notice of issuance, and reasonably satisfactory
evidence of such actions shall have been provided to the Underwriters. |
(k) Prior
to the Closing Date, the Company shall have furnished to the Underwriters
a letter substantially in the form of Exhibit A hereto (or in such other
form as approved by UBS Securities LLC) from each current officer and director
of the Company and from Mr. Xxxx Xxxxx Xxxxx, II, Xxxxx Investment Corporation,
The Tudor BVI Portfolio Ltd., Tudor Arbitrage Partners L.P., Tudor Proprietary
Trading, L.L.C. and Tudor Global Trading LLC addressed to the Underwriters. |
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. |
The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on the Closing Date. |
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities. |
8. Indemnification
and Contribution. (a) The Company agrees to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law 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 a material fact contained in the registration statement
for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus,
or in any amendment thereof 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 agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending 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 such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
relating to the Underwriters furnished to the Company by or on behalf
of any Underwriter specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have. |
|
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting,” (i) the list of Underwriters and their respective participation in the sale of the Securities and (ii) the fourth, fifth, seventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth paragraphs, in any Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel, if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded 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, (iii) 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 the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute 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 of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), 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 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default
by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears
to the aggregate amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities,
this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for
such period, not exceeding five Business Days, as the Underwriters shall
determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter
of its liability, if any, to the Company and any nondefaulting Underwriter
for damages occasioned by its default hereunder. |
10. Termination.
This Agreement shall be subject to termination in the absolute discretion
of the Underwriters, by notice given to the Company prior to delivery of
and payment for the Securities, if at any time prior to such time (i) trading
in the Company’s Common Stock shall have been suspended by the Commission
or the NASDAQ National Market, (ii) trading in securities generally on
the New York Stock Exchange or the NASDAQ National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or the NASDAQ National Market, (iii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it,
in the sole judgment of the Underwriters, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated
by the Prospectus (exclusive of any supplement thereto). |
11. Representations
and Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company and its officers
and of the Underwriters 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 any Underwriter or the Company or any of the
officers, directors, employees, agents or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancelation of this Agreement. |
12. Notices.
All communications hereunder will be in writing and effective only on receipt,
and, if sent to the Underwriters, will be mailed, delivered or telefaxed
to UBS Securities LLC, Syndicate Department, facsimile number 000-000-0000
and confirmed to Legal Department, UBS Securities, LLC at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; or, if sent to the Company, will be mailed, delivered
or telefaxed to (000) 000-0000 and confirmed to it at Progenics Pharmaceuticals,
Inc., 000 Xxx Xxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, attention
of the Legal Department. |
13. Successors.
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors, employees,
agents and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder. |
Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Company consents to the jurisdiction of such courts and personal service with respect thereto. The Company hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this Agreement is brought by any third party against UBS or any indemnified party. Each of UBS and the Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a final judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction of which the Company is or may be subject, by suit upon such judgment.
15. Counterparts.
This Agreement may be signed in one or more counterparts, each of which
shall constitute an original and all of which together shall constitute
one and the same agreement. |
16. Headings.
The section headings used herein are for convenience only and shall not
affect the construction hereof. |
17. Definitions.
The terms which follow, when used in this Agreement, shall have the meanings
indicated. |
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean the prospectus contained in the Registration Statement at the Effective Date.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Effective Date” shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Basic Prospectus.
“Prospectus” shall mean the Base Prospectus and the prospectus supplement relating to the Securities that are first filed pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant to Rule 424(b) is required, shall mean the form of Base Prospectus and final prospectus supplement relating to the Securities included in the Registration Statement at the Effective Date.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements, as amended at the Execution Time (or, if not effective at the Execution Time, in the form in which it shall become effective) and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Rule 424” and “Rule 462” refer to such rules under the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.
|
|
Very truly yours, | |
Progenics Pharmaceuticals, Inc. | |
By: /s/ Xxxxxx X. XxXxxxxx | |
Name: Xxxxxx X. XxXxxxxx Title: Chief Financial Officer, Vice President, Finance and Operations and Treasurer |
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
By: UBS Securities LLC
By: /s/ Sage X. Xxxxx
Name: Sage X. Xxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Associate Director
[Form of Lock-Up Agreement]
EXHIBIT A
[Letterhead of officer, director or major stockholder]
Progenics Pharmaceuticals, Inc.
Public Offering of Common Stock
, 2005
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Progenics Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and each of you as Underwriters named therein, relating to an underwritten public offering of Common Stock, $0.0013 par value (the “Common Stock”), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of UBS Securities LLC, offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of the Underwriting Agreement, other than shares of Common Stock disposed of as a bona fide gift or to a trust for the direct or indirect benefit of the undersigned and/or the immediate family of the undersigned, provided that the recipient of such gift or such trust agrees to be bound by the terms of this agreement, and provided further that you give prior written notice of any such disposition (which notice shall include the number of shares being disposed of and the identity of the recipient) to UBS Securities LLC.
The agreement set forth above shall terminate and be of no further force and effect in the event that the Underwriting Agreement has not been entered into on or before July 1, 2005. In addition, if for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly, | |
[Signature of officer, director
or major stockholder] |
|
[Name and address of officer, director or major stockholder] |
|
SCHEDULE I
Underwriters | Number of |
|
UBS Securities LLC | 1,532,467 | |
Total |
1,532,467 | |