Exhibit 1.01
CENTAUR PHARMACEUTICALS, INC.
Common Stock
(par value $0.001 per share)
------------------------
Underwriting Agreement
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October 13, 1998
Bank X. Xxxxxxxx & Co AG (the "GLOBAL COORDINATOR")
Vector Securities International, Inc.
Vontobel Securities Ltd., New York Branch
(collectively, the "MANAGERS")
c/o Bank X. Xxxxxxxx & Co AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
Dear Sirs:
This agreement relates to the proposed offer and sale of 1,500,000 shares of
common stock, par value $0.001 per share (the "COMMON STOCK") of Centaur
Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY") pursuant to the
issuance and sale by the Company of shares of Common Stock as follows (the
"OFFERING"):
(a) On July 10, 1998, August 7, 1998, August 24, 1998, September 18, 1998 and
October 6, 1998, at meetings of the Board of Directors of the Company duly
called and held at which quorum were present throughout, the Board of
Directors duly adopted resolutions authorizing the issuance and sale of
an aggregate of 1,500,000 new shares (the "OFFERED SHARES") of Common
Stock by the Company.
(b) The Company proposes, subject to the terms and conditions stated herein, to
issue and sell the Offered Shares to the Managers as set out herein.
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1. Sale, Underwriting and Purchase
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Subject to the terms and conditions herein set forth:
(a) The Company agrees to sell to each Manager named in Schedule 1 hereto
the Offered Shares with effect from the Closing Date (as defined in
Section 4 hereof) at a price of $___ per share (the "OFFER PRICE");
and each such Manager agrees, severally and not jointly, to purchase
from the Company such number of Offered Shares as is set forth for
such Manager on Schedule 1, at the Offer Price. The Company shall not
be obligated to sell any Offered Shares unless all of the Offered
Shares are purchased by the Managers pursuant to this Agreement.
(b) In consideration of the agreement by the Managers to purchase the
Offered Shares as set forth above, the Company shall pay to the Global
Coordinator on behalf of the Managers a commission of 5.5 per cent of
the Offer Price for each Offered Share purchased from it (the
"COMMISSION"). The Global Coordinator shall be entitled to deduct the
Commission from the Offer Price to be paid for the Offered Shares
pursuant to Section 4 of this Agreement.
(c) The Company understands that Bank X. Xxxxxxxx & Co AG proposes to make
a private placement of certain of the Offered Shares in Switzerland
and elsewhere outside the United States as soon as they deem advisable
after this Agreement has been executed and delivered. It is also
understood that, concurrently therewith, Vector Securities
International, Inc. and Vontobel Securities Ltd., New York Branch
propose to make an offering of the remaining Offered Shares in the
United States. The Offered Shares to be purchased by Bank X. Xxxxxxxx
& Co AG and offered and sold in Switzerland and elsewhere outside the
United States are referred to herein as the "International Offered
Shares" and the Offered Shares to be purchased by Vector Securities
International, Inc. and Vontobel Securities Ltd., New York Branch and
offered and sold in the United States are referred to herein as the
"U.S. Offered Shares."
(d) In connection with the offer and sale of the shares of Common Stock
to be sold under this Agreement, the Company has prepared
preliminary international prospectuses dated August 6, 1998 and
August 26, 1998 and a preliminary international prospectus dated
September 1998 in connection with the currently contemplated
placement (each an "INITIAL INTERNATIONAL PROSPECTUS"), and will
prepare a final international prospectus, expected to be dated
October 13, 1998 (the "INTERNATIONAL PROSPECTUS"), each in English,
for use in connection with the offer and sale of such shares. The
Company hereby confirms that it has authorized the use by the
Managers of each Initial International Prospectus (in each case
until the date of an Initial International Prospectus of more recent
date) and the International Prospectus, as the same may be amended
or supplemented by the Company from time to time, in connection with
the
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offer and sale of such shares, for the period during which a
prospectus is required by applicable law to be delivered in
connection with sales of such shares.
(e) The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-57165)
under the Securities Act of 1933, as amended (the "1933 ACT") covering
the registration of the U.S. Offered Shares and any International
Offered Shares sold hereunder that are sold or resold in the United
States in transactions not exempt from registration under Section 4(1)
or 4(3) of the 1933 Act, including the related preliminary prospectus
or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus
in accordance with the provisions of Rule 430A ("RULE 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933
ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(B)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon
Rule 434 ("RULE 434") of the 1933 Act Regulations, prepare and file a
term sheet (a "TERM SHEET") in accordance with the provisions of Rule
434 and Rule 424(b). The information included in such prospectus or
in such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as
"RULE 430A INFORMATION" or (b) pursuant to paragraph (d) of Rule 434
is referred to as "RULE 434 INFORMATION." Each prospectus used before
such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "U.S.
PRELIMINARY PROSPECTUS." Such registration statement, including the
exhibits thereto and schedules thereto at the time it became effective
and including the Rule 430A Information or the Rule 434 Information,
as applicable, is herein called the "REGISTRATION STATEMENT." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "RULE 462(B) REGISTRATION
STATEMENT," and after such filing the term "REGISTRATION STATEMENT"
shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to Vontobel Securities Ltd.,
New York Branch and Vector Securities International, Inc. for use in
connection with the offering of the U.S. Offered Shares is herein
called the "U.S. PROSPECTUS." If Rule 434 is relied on, the term
"U.S. Prospectus" shall refer to the U.S. Preliminary Prospectus dated
October 1, 1998 together with the Term Sheet and all references in
this Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any U.S. Preliminary Prospectus, the U.S.
Prospectus or any Term Sheet or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX"). The
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Company hereby confirms that it has authorized the use by Vontobel
Securities Ltd., New York Branch and Vector Securities
International, Inc. of each U.S. Preliminary Prospectus (in each
case until the date of a U.S. Preliminary Prospectus of more recent
date) and the U.S. Prospectus, as the same may be amended or
supplemented by the Company from time to time, in connection with
the offer and sale of the U.S. Offered Shares and by underwriters
and dealers for purposes of resales of shares of Common Stock in the
United States that are not exempt from Section 4(1) or 4(3) of the
Securities Act. The U.S. Prospectus and the International Prospectus
are herein collectively called the "PROSPECTUSES" and individually
each, a "PROSPECTUS."
2. Representations and Warranties
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(a) The Company represents and warrants, as of the date hereof, to each
Manager that:
(i) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements
thereto complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; any U.S. Prospectus, any
U.S. Preliminary Prospectus and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their
respective times of issuance and (except with respect to any U.S.
Preliminary Prospectus) at the Closing Date, complied and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations; any International Prospectus,
any Initial International Prospectus and any supplement thereto
or prospectus wrapper prepared in connection therewith, at their
respective times of issuance and (except with respect to any
Initial International Prospectus) at the Closing Date, complied
and will comply in all material respects with the requirements of
the applicable laws or regulations of Switzerland. Neither any
Prospectus
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nor any amendments or supplements thereto (including any
prospectus wrapper), at the time such Prospectus or any such
amendment or supplement was issued and (except with respect to
any U.S. Preliminary Prospectus or Initial International
Prospectus) at the Closing Date, included or will include an
untrue statement of a material fact or omitted or will 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. No U.S. Preliminary Prospectus, at
its time of issuance, included an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If
Rule 434 is used, the Company will comply with the requirements
of Rule 434 and the U.S. Prospectus shall not be "materially
different", as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time
it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or any Prospectus made in reliance
upon and in conformity with information furnished to the
Company in writing by any Manager through Bank X. Xxxxxxxx & Co
AG expressly for use in the Registration Statement or any such
Prospectus.
Each U.S. Preliminary Prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and each U.S. Preliminary Prospectus and
the U.S. Prospectus delivered to the Managers and Vontobel
Securities Ltd., New York Branch and Vector Securities
International, Inc. for use in connection with this offering was
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in each Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement,
pursuant to employee benefit plans referred to in each
Prospectus, pursuant to the conversion of the Company's preferred
stock on the Closing Date as described in each Prospectus or
pursuant to the exercise of options or warrants referred to in
each Prospectus). The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any security holder of
the Company;
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(iii) Upon delivery of the Offered Shares to be delivered to the
Managers pursuant to Section 4 of this Agreement on the Closing
Date, and payment therefore as provided herein and therein, it
will have delivered good and valid title thereto to the Managers,
free and clear of all liens, pledges, encumbrances, equities and
claims; and there exists no agreement or arrangement with respect
to the voting, sale or disposition of the Offered Shares sold by
it;
(iv) The Offered Shares to be purchased by the Managers from the
Company have been duly authorized for issuance and sale to the
Managers pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein and therein, will
be validly issued and fully paid and non-assessable; the Common
Stock conforms to all descriptions thereof contained in the
Prospectuses and such descriptions conform to the rights set
forth in the instruments defining the same; no holder of the
Offered Shares will be subject to personal liability by reason of
being such a holder; and the issuance of the Offered Shares is
not subject to the preemptive or other similar rights of any
security holder of the Company;
(v) Except as described in each of the Prospectuses, (i) there are no
outstanding securities of the Company convertible into or
exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, the Common
Stock or any other class of shares of the Company; (ii) all of
the issued and outstanding capital stock of each subsidiary of
the Company (each a "SUBSIDIARY") has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by
the Company, directly or indirectly, free and clear of any liens,
pledges, encumbrances, equities or claims; and (iii) none of the
outstanding shares of capital stock of any Subsidiary was issued
in violation of the preemptive or similar rights of any security
holder of such Subsidiary. The Subsidiaries of the Company,
considered in the aggregate as a single Subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. To the extent any of the representations of the
Company in Section 3 of this Agreement relate to any Subsidiary
or Subsidiaries of the Company, such representation shall not be
deemed breached or to be incorrect as a result of any facts or
circumstances relating to such Subsidiary or Subsidiaries that
would not be reasonable likely to, singly or in the aggregate,
have a Material Adverse Effect (as hereinafter defined).
(vi) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and
the 1933 Act Regulations;
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(vii) Except as described in each of the Prospectuses, there has been
no action, suit, legal or arbitration proceeding by or against
the Company or any of its Subsidiaries within the last two years
and there is no such proceeding pending that has had, and the
Company does not believe that there are any threatened legal or
arbitration proceedings by or against it or any of its
Subsidiaries which would be reasonably likely, singly or in the
aggregate, to have a material adverse effect on the business or
financial condition of the Company and its Subsidiaries taken as
a whole a ("MATERIAL ADVERSE EFFECT");
(viii) (A) The Company and its Subsidiaries own or have had licensed
to them or otherwise have the benefit or use under the authority
of the owners thereof of all patents, patent rights, inventions,
trademarks, service marks, trade names and copyrights (in each
case, registered or not) which are necessary for the conduct of
the business of the Company and its Subsidiaries as currently
conducted as described in each Prospectus; (B) there are no
material unresolved claims that the Company or any of its
Subsidiaries has infringed the patents, patent rights,
inventions, trademark rights, service marks, trade names or
copyrights of others and, to the best knowledge of the Company,
no persons are infringing the patents, patent rights, inventions,
trademark rights, service marks, trade names or copyrights of the
Company or any of its Subsidiaries, in each case in this clause
(B) which would be reasonably likely to, singly or in the
aggregate, have a Material Adverse Effect;
(ix) The Company and each of its Subsidiaries has all material
concessions, licenses, franchises, permits, authorizations,
approvals and orders of and from all governmental regulatory
officials and bodies that are necessary to own or lease its
properties and to conduct its business as currently
conducted;
(x) No material labour dispute with the employees of the Company or
any of its Subsidiaries exists or is threatened or imminent;
(xi) The Company and each of its Subsidiaries has obtained any
permits, consents and authorizations required to be obtained by
it under laws or regulations relating to the protection of the
environment or concerning the handling, storage, disposal or
discharge of toxic materials (collectively "ENVIRONMENTAL LAWS")
in order to conduct their business as described in the
Prospectuses, and any such permits, consents and authorizations
remain in full force and effect. The Company and each of its
Subsidiaries is in compliance with the Environmental Laws in all
material respects, and there is no pending or, to the Company's
knowledge, threatened, action or
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proceeding against the Company or any or its Subsidiaries
alleging violations of the Environmental Laws;
(xii) Except as described in each of the Prospectuses, neither the
Company nor any of its Subsidiaries is currently prohibited from
paying any dividends or from making any other distribution on the
Company's or such Subsidiary's capital stock, respectively, out
of positive retained earnings or from repaying to the Company or
its stockholders, respectively, any loans or advances to such
Subsidiary from the Company or to the Company from such
stockholders, as the case may be;
(xiii) Neither the Company nor any of its Subsidiaries is (A) in
violation of its charter or by-laws or (B) except as described
in each of the Prospectuses, in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company
or any Subsidiary is subject;
(xiv) Since the earlier of (i) the respective dates as of which the
information is given in the Registration Statement, each
Prospectus or (ii) June 30, 1998, (A) neither the Company nor
any of its Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree, (B) there has not been any change in the capital stock
of the Company, or any increase in long-term debt of the
Company and its Subsidiaries taken as a whole (except (i) as
described in each Prospectus, (ii) pursuant to this Agreement,
(iii) pursuant to grants under employee benefit plans referred
to in each Prospectus, (iv) pursuant to the conversion of the
Company's preferred stock on the Closing Date as described in
each Prospectus or (v) pursuant to the exercise of options or
warrants referred to in each Prospectus), (C) there has not
been any significant change, when compared to the comparable
period in the prior year, in net loss or net loss per share of
the Company and its Subsidiaries taken as a whole (except as
contemplated by each Prospectus), and (D) there has not been
any material adverse change, or any development reasonably
likely to result in a material adverse change, in or affecting
the condition (financial or otherwise), business, stockholders'
equity or results of operations of the Company and its
Subsidiaries taken as a whole;
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(xv) The financial statements included in the Registration Statement
and each Prospectus, together with the related schedules and
notes, present fairly in all material respects the financial
position of the Company at the dates indicated and the statements
of operations, stockholders' equity and cash flows of the Company
for the periods specified; said financial statements have been
prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules
included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
data included in each Prospectus have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement;
(xvi) The Company and each of its Subsidiaries has been duly
organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with full corporate power and authority to enter into this
Agreement and consummate the transactions contemplated herein and
therein (in the case of the Company) and to own its properties
and conduct its business as currently conducted, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction other than its jurisdiction of incorporation in
which it owns or leases properties or conducts any business so as
to require such qualification, except where the failure to be so
qualified or to be in good standing would not, individually or in
the aggregate, be reasonably likely to have a Material Adverse
Effect;
(xvii) This Agreement has been duly authorized, executed and
delivered by the Company and (other than the provisions of
Section 9 hereof, as to which the Company makes no
representation) constitutes the legal, valid, binding and
enforceable obligation of the Company, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and subject, as to enforceability, to general
principles of equity;
(xviii) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
herein and therein (including the issuance and sale of the
Offered Shares and the use of the proceeds from the sale of the
Offered Shares as described in each Prospectus under the heading
"Use of Proceeds") and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and do not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any
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lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not, singly or in the aggregate, be
reasonably likely to result in a Material Adverse Effect or
impair the ability of the Company to consummate, or otherwise
materially adversely affect, the transactions contemplated
herein), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
Subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
assets, properties or operations (except, with result to
foreign jurisdictions, for actions taken with the actual
knowledge or prior consent of the Global Coordinator). As used
herein, a "REPAYMENT EVENT" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
Subsidiary;
(xix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Offered
Shares hereunder or the consummation of the transactions
contemplated by this Agreement, except (i) such as have been
already obtained and are in full force and effect or as may be
required under the 1933 Act or the 1933 Act Regulations or United
States state securities laws, (ii) such as have been obtained
under the laws and regulations of jurisdictions outside the
United States in which the Offered Shares are offered, or (iii)
as may be required by the U.S. Securities and Exchange Commission
for the performance of the Company's obligations under Section 9
hereof; provided that no representation is made as to the
compliance of the Offering with the securities laws of
jurisdictions other than the United States and Switzerland.
(xx) There are no contracts or documents which are required to be
described in the Registration Statement or each Prospectus or to
be filed as exhibits to the Registration Statement which have not
been so described or filed as required;
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(xxi) The Company is not, and upon the issuance and sale of the
Offered Shares as contemplated herein and the application of the
net proceeds therefrom as described in each Prospectus will not
be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended;
(xxii) Except as described in each Prospectus, there are no persons
with registration rights or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933
Act;
(xxiii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and
regulations thereunder, or is exempt therefrom;
(xxiv) Except as disclosed in each Prospectus, no issue, stamp or
other transactional duty or tax is payable by or on behalf of any
purchaser of Offered Shares from the Company or the Managers in
connection with the sale and delivery by it of Offered Shares to
or for the respective accounts of such purchaser or the Managers
in the manner contemplated by this Agreement; and
(xxv) The Company and its Subsidiaries have good and marketable title
to all real property owned by the Company and its Subsidiaries
and good title to all other material properties owned by them, in
each case free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in each Prospectus or (b)
do not, singly or in the aggregate, materially affect the value
of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
Subsidiaries; and all of the leases and subleases material to the
business of the Company and its Subsidiaries, considered as one
enterprise, and under which the Company or any of its
Subsidiaries holds properties described in each Prospectus, are
in full force and effect, and neither the Company nor any
Subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company
or any Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or
such Subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
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3. Offering and Placement by the Managers
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(a) International Offered Shares. It is understood that Bank X. Xxxxxxxx
----------------------------
& Co AG proposes to sell the International Offered Shares to a
limited number of institutional and private investors as set forth
in the Initial International Prospectus prepared in connection with
the currently contemplated placement and the International
Prospectus and such Manager hereby represents and warrants to, and
agrees with the Company that:
(i) (A) The International Offered Shares may not be initially
offered or sold by it within the United States or to any
dealer who does not so agree. The International Offered
Shares have been registered in the United States solely
for purposes of the subsequent sale or resale of the
International Offered Shares in the United States in
transactions not exempt from registration under Section
4(1) or 4(3) of the Securities Act. It will not distribute
any prospectus (as defined in the 0000 Xxx) relating to
the Common Stock or the Offering in the United States or
to any dealer who does not so agree (except as
contemplated by clause (ii) below). "United States" means
the United States of America (including the States and the
District of Columbia), its territories, possessions and
other areas subject to its jurisdiction.
(B) It will comply with prospectus delivery requirements in
the United States with respect to offers and sales of the
Common Stock, including, to the extent applicable,
delivery of a copy of the U.S. Prospectus to any purchaser
or offeree within the United States with respect to any
transaction that is part of this distribution or that
occurs within 365 days after the initial listing of the
Common Stock on the Swiss Exchange.
(ii) (A) It has not offered or sold and will not offer or sell any
International Offered Shares in the United Kingdom except in
circumstances which do not constitute an offer to the
public within the meaning of the Public Offer of
Securities Regulations 1995 (the "REGULATIONS");
(B) It has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 and the
Regulations with respect to anything done by it in
relation to the International Offered Shares in, from or
otherwise involving the United Kingdom; and
(C) It has only issued or passed on, and will only issue or
pass on, in the United Kingdom, any Initial International
Prospectus, the
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International Prospectus or any other document received by
it in connection with the offering of the International
Offered Shares to a person who is of a kind described in
Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom any Initial International
Prospectus, the International Prospectus or the relevant
document may otherwise lawfully be issued or passed on;
(iii) No action has been or will be taken in any jurisdiction by such
Manager that would constitute a public offering of the
International Offered Shares or permit possession or distribution
of any Initial International Prospectus, the International
Prospectus or any other offering or publicity material relating
to the International Offered Shares in any country or
jurisdiction where action for that purpose is required. Each
Manager will comply with all applicable laws and regulations in
each jurisdiction in which it acquires, offers, sells or delivers
the International Offered Shares or has in its possession or
distributes an Initial International Prospectus, the
International Prospectus or any such other material. Such
Manager will obtain any consent, approval or permission required
by it for, the acquisition, offer, sale or delivery by it of the
International Offered Shares under the laws and regulations in
force in any jurisdiction to which it is subject or in or from
which it makes any acquisition, offer, sale, or delivery. Such
Manager is not authorized to make any representation or use any
information in connection with the issue and sale of the
International Offered Shares other than as contained in an
Initial International Prospectus, the International Prospectus or
any amendment or supplement thereto;
(iv) It has complied and will comply with all applicable Swiss laws
(including, without limitation, the Swiss Code of Obligations
(Schweizerisches Obligationenrecht) and the Swiss Stock Exchange
Act (Schweizerisches Borsen-und-Effektenhandelsgesetz) as in
effect from time to time), rules, regulations and governmental
and Stock Exchange orders, if any;
(v) The International Offered Shares have not been and will not be
qualified for sale in Canada pursuant to a prospectus and will
not be offered or sold directly or indirectly in any province
or territory of Canada; and
(vi) It has not offered and will not offer or sell, or procure any
offers or sales of, any International Offered Shares in
Japan.
(b) U.S. Offered Shares.
-------------------
14
It is understood that Vector Securities International, Inc. and
Vontobel Securities Ltd., New York Branch, proposes to offer the U.S.
Offered Shares for sale to the public in the United States as set
forth in the U.S. Prospectus.
4. Delivery and Payment
--------------------
(a) At the latest on October __, 1998, Bank X. Xxxxxxxx & Co AG shall have
received the Offered Shares to be purchased by the Managers through
the book-entry facilities of Schweizerische Effekten Giro AG ("SEGA")
from or on behalf of the Company for the accounts of such
Managers.
(b) On or before the Business Day immediately preceding the Closing Date,
The Global Coordinator, on behalf of the Managers, shall give
instructions to SEGA, as to the number of Offered Shares to be settled
on the Closing Date through the facilities of SEGA, together with the
details of such accounts. As used in this Agreement, "BUSINESS DAY"
means each day on which the Swiss Exchange ("SWISS EXCHANGE") is open
for dealings.
(c) By 10 a.m. (local time in Zurich) on October __, 1998 or at such other
time and date as the Company and the Global Coordinator on behalf of
the Managers may agree (the "CLOSING DATE"), the following payments
shall be made with value as of the Closing Date:
(i) Each Manager shall pay for the Offered Shares to be purchased by
it in Swiss Francs in the amounts and to the account or accounts
to be notified to it by the Global Coordinator.
(ii) The Global Coordinator on behalf of the Managers shall pay to the
Company in Swiss Francs the Offer Price less the Commission for
the Offered Shares and such amounts as are separately agreed in
writing with the Company.
All payments referred to in this Section 4 shall be credited with
value as of the Closing Date to the relevant parties at the designated
accounts.
(d) The documents to be delivered on the Closing Date, by or on behalf of
the parties hereto pursuant to Section 7 hereof will be delivered at
the offices of the Global Coordinator in Zurich or at such other
location as the parties hereto may agree (the "CLOSING LOCATION") on
the Closing Date.
15
5. Agreements
----------
(a) The Company agrees with each Manager as follows:
(i) The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will
notify The Global Coordinator immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement
to the U.S. Prospectus or any amended U.S. Prospectus shall have
been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the U.S. Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Offered Shares for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(ii) The Company will give the Global Coordinator notice of its
intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it
became effective or to any Prospectus, will furnish the Global
Coordinator with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which the Global
Coordinator or counsel for the Managers shall object in good
faith.
(iii) The Company has furnished or will deliver to the Managers and
counsel for the Managers, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith) and signed copies of
all consents and certificates of experts, and will also deliver
to the Managers, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto
16
(without exhibits) for each of the Managers. The copies of the
Registration Statement and each amendment thereto furnished to
the Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(iv) The Company will furnish to each Manager, without charge, during
the period when the U.S. Prospectus is required to be delivered
under the 1933 Act, such number of copies of the U.S. Prospectus
(as amended or supplemented) as such Manager may reasonably
request. The U.S. Prospectus and any amendments or supplements
thereto furnished to the Managers will be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T. The Company has delivered to each Manager,
without charge, as many copies of each Initial International
Prospectus as such Manager reasonably requested and will furnish
to each Manager, without charge, such number of copies of the
International Prospectus (as amended or supplemented) as such
Manager may reasonably request.
(v) The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution
of the Offered Shares as contemplated in this Agreement and in
the Prospectuses. If at any time when a prospectus is required
by applicable law to be delivered by the Managers in connection
with sales of the Offered Shares, any event shall occur or
condition shall exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Managers or for the
Company, to amend the Registration Statement or amend or
supplement any Prospectus in order that such Prospectus will not
include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the
requirements of applicable law, the Company will (i) with
respect to the U.S. Prospectus, promptly prepare and file with
the Commission, subject to Section 5(a)(ii), such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the U.S.
Prospectus comply with such requirements, (ii) with respect to
any Initial International Prospectus or the International
Prospectus, supplement such prospectus to correct such statement
or omission and (iii) furnish to the Managers such number of
copies of such amendment or supplement as the Managers may
reasonably request.
17
(vi) The Company will use its reasonable efforts, in cooperation with
the Managers, to qualify the Offered Shares for offering and sale
under the applicable securities laws of such United States states
and such other jurisdictions (domestic or foreign) as The Global
Coordinator may reasonably designate and to maintain such
qualifications in effect for a period of one year from the later
of the effective date of the Registration Statement and any Rule
462(b) Registration Statement (or such lesser period as may be
required under applicable law); provided, however, that the
-------- -------
Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Offered Shares have
been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of one year
from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement (or such lesser period as may
be required under applicable law).
(vii) The Company will make generally available to its
securityholders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(viii) The Company will use the net proceeds received by it from the
sale of the Offered Shares in the manner specified in each
Prospectus under "Use of Proceeds".
(ix) The Company, during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), will file all documents
required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the
rules and regulations of the Commission thereunder.
(x) The Company will file with the Commission such information on
Form 10-Q or Form 10-K as may be required pursuant to Rule 463 of
the 1933 Act Regulations.
(xi) The Company will not issue shares of Common Stock or other
securities convertible or exchangeable into shares of Common
Stock or representing rights to subscribe for shares of Common
Stock, for a period from the date hereof until December 31, 1999,
other than (i) pursuant to the exercise of options and warrants
outstanding as of the date hereof or conversion of convertible
securities outstanding on the date hereof, (ii) pursuant to
the
18
exercise of options granted, or the purchase of shares, under the
Company's employee benefit plans existing on the date hereof,
(iii) in connection with any acquisition of a company, technology
or product, or any research, development, manufacturing or
marketing collaboration, or any other transaction where the
primary consideration for the issuance of the shares is other than
cash, (iv) up to 100,000 shares for miscellaneous purposes or (v)
pursuant to this Agreement, unless (A) the issuance is approved by
The Global Coordinator (which approval may not unreasonably be
withheld), (B) the issuance is approved by a majority of the
Company's stockholders present, in person or by proxy, at a
stockholder meeting at which a quorum is present, or by the
written consent of holders of a majority of the Company's
outstanding Common Stock, (C) the Common Stock is then listed, or
designated for listing on notice of issuance, on the Swiss
Exchange, the Nasdaq National Market, the New York Stock Exchange,
the American Stock Exchange or the Neuer Markt or (D) the
Company's stockholders are provided with the right to purchase
their pro rata share of the issuance; and
(xii) It will bear and pay any issue, stamp or other transactional
duty or tax (including interest and penalties, if any) payable in
connection with the issue of the Offered Shares.
6. Payment of Expenses
-------------------
The costs and expenses listed in clauses (a) - (f) below shall be borne by
the Managers; provided that the Company covenants and agrees with the
several Managers that, in addition to their other obligations hereunder
upon the purchase by the Managers of all of the Offered Shares, it will pay
or cause to be paid to the Global Coordinator for its own account up to a
fixed sum in the aggregate amount of CHF 600,000 to cover the following
costs and expenses (including costs and expenses incurred in connection
with the Offering and in connection with the efforts of the Managers and
the Company with respect to the Offering as previously contemplated as a
public offering to be listed on the Swiss Exchange):
(a) all expenses in connection with the preparation, printing and filing
of the Registration Statement, each Initial International Prospectus,
each U.S. Preliminary Prospectus, and any Term Sheets and each
Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Managers;
(b) the out-of-pocket expenses (including fees and disbursements of legal
counsel to the Managers) incurred by the Global Coordinator on behalf
of the Managers in connection with the transactions contemplated by
this Agreement;
19
(c) the cost and expenses of the Global Coordinator in connection with
"road show" presentations to be made to prospective investors;
(d) the cost of preparing certificates in definitive form representing
Offered Shares if required by the initial purchasers thereof in
connection with the Offering;
(e) the fees and expenses of apr AG in connection with the Offering other
than costs and expenses covered by clause (c) below; and
(f) all other expenses of the Managers and the Global Coordinator.
In the event that all of the Offered Shares are not sold by the Company to
the Managers, other than by reason of a breach of this Agreement by the
Company or any Manager, as the case may be, then the Company will pay or
cause to be paid to Bank X. Xxxxxxxx & Co AG for its own account up to a
fixed sum in the aggregate amount of CHF 300,000.
Subject to Section 11, no expenses of the Managers are payable by the
Company other than as expressly set forth in this Section G.
In addition, the Company covenants and agrees with the several Managers
that, in addition to their other obligations hereunder, it will bear the
following costs:
(a) the fees and expenses of the Company's counsel, accountants and other
advisors;
(b) the fees and expenses of any transfer agent or registrar for the
Offered Shares; and
(c) the fees and expenses of apr AG in connection with the previously
proposed Swiss Exchange listed public offering (other than fees and
expenses of apr AG related to the previously proposed public
offering in Germany).
7. Conditions Precedent
--------------------
(a) The obligations of the several Managers to purchase and pay for the
Offered Shares are subject to the satisfaction of the following
conditions precedent:
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing
Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Managers. A prospectus
containing the Rule
20
430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or,
if the Company has elected to rely upon Rule 434, a Term Sheet
shall have been filed with the Commission in accordance with
Rule 424(b);
(ii) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material
respects at the Closing Date, as if made at the Closing Date,
and all covenants and agreements herein contained to be performed
on the part of the Company and all conditions herein contained to
be fulfilled or complied with by the Company at or prior to the
Closing Date shall have been performed, fulfilled or complied
with in all material respects;
(iii) delivery to the Managers, except to the extent waived by the
Global Coordinator in writing on the Closing Date:
(A) legal opinions, substantially in the agreed form, from (aa)
Fenwick & West LLP, U.S. counsel to the Company, (bb) Xxxx
& Staehelin, Swiss counsel to the Company, (cc) Burns,
Doane, Xxxxxxx & Xxxxxx, patent counsel to the Company, (dd)
Kleinfeld, Xxxxxx and Xxxxxx, regulatory counsel to the
Company and (ee) Shearman & Sterling, counsel to the
Managers;
(B) a certificate addressed to the Managers signed by the
Company and dated the Closing Date to the effect stated in
Section 7(a)(ii);
(C) a comfort letter from the auditors of the Company
substantially in the agreed form;
(D) a copy of the Company's Certificate of Incorporation,
certified by the Secretary of State of the State of Delaware
as of the Closing Date or a date as near thereto as
possible;
(iv) the resolutions of the Board of Directors of the Company
authorizing and approving the Offering and all actions taken or
to be taken in connection therewith including, without
limitation, the execution and delivery of this Agreement and the
implementation of all transactions contemplated hereby and
thereby, certified by the Secretary of the Company; and
21
(v) each of the executive officers and directors of the Company
persons listed on Schedule 2 hereto and any greater than 1%
stockholder of the Company shall have agreed that they will not,
for a period of 180 days following the effective date of the
Registration Statement, directly or indirectly, offer to sell,
grant any option for the sale of, or otherwise dispose of, any
shares of Common Stock or securities convertible into or
exchangeable for any such shares, except with the prior written
consent of the Global Coordinator.
Documents in the agreed form means documents in the form signed for
identification on the date hereof by Shearman & Sterling.
(b) If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by The Global Coordinator on behalf of the Managers by
notice to the Company at any time at or prior to the Closing Date,
and, subject to Sections 6 and 11 hereof, such termination shall be
without liability of any party to any other party except that any
liability (including as to indemnification) as a result of any prior
breach of the provisions of this Agreement shall continue in full
force and effect.
8. Termination
-----------
(a) The Global Coordinator (on behalf of the Managers) may, by notice to
the Company, terminate this Agreement at any time whereupon the
obligation of the Managers to purchase and pay for the Offered Shares
and to procure investors shall terminate if, in the opinion of The
Global Coordinator, (i) there has been, since the time of execution of
this Agreement, any material adverse change in the financial
condition, earnings or business affairs of the Company and its
Subsidiaries considered as one enterprise or (ii) there has occurred
any material adverse change in the financial markets in the United
Kingdom, the United States, Switzerland or the international financial
markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a
prospective change in national or international political, financial
or economic conditions in the United Kingdom, the United States or
Switzerland and the effect of any such material adverse change,
outbreak, escalation, calamity, crisis, change or development is such
as to make it impossible or impracticable to market the Offered Shares
or to enforce contracts for the sale of the Offered Shares, or (iii)
trading generally on either the Swiss Exchange, the London Stock
Exchange, the New York Stock Exchange or the Nasdaq National Market
has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities
have been required, by any of said exchanges or by such system or by
order of the United States Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) a banking moratorium has
22
been declared by the United States, New York State, Switzerland or
the United Kingdom, or (v) there has been a material change, or an
official announcement by a competent authority of a prospective
material change, in Swiss, United Kingdom or United States taxation
affecting the transfer of the Common Stock, or (vi) there has been
any material adverse change in currency rates between the U.S.
dollar and the Swiss franc, or (vii) additional exchange controls
are imposed by Switzerland or the United States.
(b) In the event that this Agreement is terminated pursuant to this
Section 8, the parties to this Agreement shall be released and
discharged from their respective obligations hereunder except for any
liability (including as to indemnification) of any party hereto as a
result of any prior breach by it of this Agreement. In such event any
costs, charges and expenses shall be paid as provided for in Section
6.
9. Indemnification
---------------
(a) The Company will indemnify and hold harmless each Manager against any
losses, claims, damages or liabilities, joint or several, to which
such Manager may become subject, under Swiss law, the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact
contained in any Initial International Prospectus, any U.S.
Preliminary Prospectus, the Registration Statement or any Prospectus,
including any amendment or supplement thereto, (ii) the omission or
alleged omission to state in any Initial International Prospectus, any
U.S. Preliminary Prospectus, the Registration Statement or any
Prospectus, including any amendment or supplement thereto, a material
fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not
misleading or (iii) any breach by the Company of its representations,
warranties or obligations under this Agreement, and will reimburse
each Manager for any legal or other expenses reasonably incurred by
such Manager in connection with defending any such action or claim as
such expenses are incurred; provided that the Company shall not be
--------
liable to any Manager under this subsection (a) with respect to any
Initial International Prospectus or U.S. Preliminary Prospectus to the
extent that any loss, claim, damage or liability of such Manager
results from the fact that such Manager sold Offered Shares to a
person to whom there was not given or sent, at or prior to the written
confirmation of such sale, a copy of the International Prospectus or
U.S. Prospectus, as the case may be, as then amended or supplemented,
if the Company had previously furnished copies thereof to such Manager
and the loss, claim, damage or liability of such Manager results from
an untrue statement or omission of a material fact contained in an
Initial International
23
Prospectus or U.S. Preliminary Prospectus that was corrected in the
International Prospectus or U.S. Prospectus, as the case may be (as
amended or supplemented).
(b) Each Manager will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become
subject, under Swiss law, the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) (A) an untrue statement or alleged
untrue statement of a material fact contained in any Initial
International Prospectus, any U.S. Preliminary Prospectus, the
Registration Statement or any Prospectus, including any amendment or
supplement thereto or (B) the omission or alleged omission to state in
any Initial International Prospectus, any U.S. Preliminary Prospectus,
the Registration Statement or any Prospectus, including any amendment
or supplement thereto, a material fact required to be stated therein
or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
any Initial International Prospectus, any U.S. Preliminary Prospectus,
the Registration Statement or any Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Manager through The Global
Coordinator expressly for use therein, or (ii) any breach by such
Manager of its representations, warranties or obligations in this
Agreement, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than under this Agreement. In
case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall have the option to assume the
defense thereof including the employment of legal advisors approved by
the indemnified party (such approval not to be unreasonably withheld),
subject to the payment by the indemnifying party of all expenses. Any
indemnified party shall have the right to employ separate legal
advisors in any such action and defend or participate in the defense
thereof, but the fees and expenses of such legal advisors shall be
borne by such indemnified party, unless the indemnifying party has
specifically authorised the employment thereof or has failed to assume
such defense and to employ legal advisors approved as a
24
aforesaid for such purpose. The indemnifying party shall not be
liable to indemnify any indemnified party for any settlement of any
claim, action or demand made without its consent (such consent not
to be unreasonably withheld), unless the indemnifying party fails to
assume the defense thereof and to employ legal advisors as aforesaid
for such purpose.
(d) If the indemnification provided for in this Section 9 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Managers on the other from the
offering of the Offered Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Managers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Managers on the other shall be
deemed to be in the same proportion as the total net proceeds from the
Offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Managers, in each case as set forth in the table on the cover page of
the Prospectuses. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the
one hand or the Managers on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Managers
agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Managers were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Manager shall be required to contribute any amount in excess of the
amount by which the total price
25
at which the Offered Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Manager has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Managers' obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which any of them may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of each Manager and to each person, if any, who controls, is
controlled by or is under common control with any Manager; and the
obligations of the Managers under this Section 9 shall be in addition
to any liability which the respective Managers may otherwise have and
shall extend, upon the same terms and conditions, to each officer,
director and stockholder of the Company to the extent applicable and
to each person, if any, who controls, is controlled by or is under
common control with any of the foregoing (to the extent
applicable).
10. Representations and Indemnities to Survive
------------------------------------------
The respective indemnities, agreements, warranties and other statements of
the Company and the several Managers, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation (or
any statements as to the results thereof) made by or on behalf of any
Manager or any officer or director of any Manager or any person who
controls, is controlled by or is under common control with any Manager, or
made by or on behalf of the Company or any officer or director of any of
the foregoing or any person who controls, is controlled by or is under
common control with the Company, and shall survive delivery of and payment
for the Offered Shares.
11. Reimbursement on Termination or Default
---------------------------------------
If for any reason any Offered Shares are not delivered by or on behalf of
the Company when and as required herein, and such non-delivery shall be a
result of a breach by the Company of its obligations hereunder, the Company
will reimburse the Managers through the Global Coordinator for all out-of-
pocket expenses approved in writing by the Global Coordinator, including
fees and disbursements of counsel, reasonably incurred by the Managers in
making preparations for the purchase, sale and delivery of the Offered
Shares not so delivered by the
26
Company, but the Company shall then be under no further liability to any
Manager in respect of such Offered Shares, except as provided in Sections
9 hereof. Notwithstanding the foregoing, in the event of a default of a
Manager in respect of its obligation to purchase any Offered Shares, the
Company shall be under no further liability to such Manager. In any other
event, any costs, charges and expenses shall be paid as provided for in
Section 6.
12. Notices
-------
All statements, requests, notices and agreements, hereunder shall be in
writing with copies to each of the Global Coordinator and the Company, and
(i) if to the Managers shall be delivered or sent by international courier,
telex or facsimile transmission care of Bank X. Xxxxxxxx, Xxxxxxxxxxxxxx 0,
0000 Xxxxxx, Xxxxxxxxx: Corporate Finance, facsimile transmission No. (+41-
1) 283-7075; and (ii) if to the Company shall be delivered or sent by
international courier or facsimile transmission to Centaur Pharmaceuticals,
Inc., 000 Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx
Xxxxxx, facsimile transmission No. (000) 000-0000. Any such statements,
requests, notices or agreements shall take effect upon receipt
thereof.
13. Successors
----------
This Agreement shall be binding upon, and inure solely to the benefit of,
the Managers and the Company and, to the extent provided in Section 9
hereof, the officers, directors and stockholders of, and each person who
controls, is controlled by or is under common control with the Company or
any Manager, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Shares from any Manager shall
be deemed a successor or assign by reason merely of such purchase.
14. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
substantive law of Switzerland.
15. Submission to Jurisdiction
--------------------------
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by any Manager or by any officer or director
of any Manager or by any person who controls, is controlled by or is under
common control with any Manager arising out of or
27
based upon this Agreement or the transactions contemplated herein shall
be brought in the competent commercial court (Handelsgericht) in Zurich,
Switzerland, (ii) waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue
of any such proceeding and (iii) submits to the exclusive jurisdiction of
such court in any such suit, action or proceeding.
16. Counterparts
------------
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
17. Severability
------------
Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be unenforceable or invalid under
applicable law, such provision shall be ineffective only to the extent of
such unenforceability or invalidity and be replaced by such valid and
enforceable provision which the parties bona fide consider to match as
closely as possible the invalid or unenforceable provision, attaining the
same or a similar economic effect. The remaining provisions of this
Agreement shall under all circumstances continue to be binding and in full
force and effect.
If the foregoing is in accordance with your understanding, please sign and
return to us 8 counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Managers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Managers and the
Company.
Very truly yours,
CENTAUR PHARMACEUTICALS, INC.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Accepted as of the date hereof:
BANK X. XXXXXXXX & CO AG
By:_________________________________
Name:
Title:
VECTOR SECURITIES INTERNATIONAL, INC.
VONTOBEL SECURITIES, LTD.,
NEW YORK BRANCH
By:_________________________________
Duly Authorized Attorneys
SCHEDULE 1
----------
MANAGERS
----------------------------------------------------
International Offered Shares U.S. Offered Shares
-------------------------------------------------------------------------------
Bank X. Xxxxxxxx & Co AG
-------------------------------------------------------------------------------
Vector Securities
International, Inc.
-------------------------------------------------------------------------------
Vontobel Securities Ltd.,
New York Branch
-------------------------------------------------------------------------------
Total
-------------------------------------------------------------------------------
SCHEDULE 2
----------
EXECUTIVE OFFICERS AND DIRECTORS
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
