3,500,000 Shares
CENTOCOR, INC.
COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
__________, 1996
_____________, 1996
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co.
Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Ltd.
c/o Morgan Xxxxxxx & Co.
International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Centocor, Inc., a Pennsylvania corporation (the "Company"), proposes to
issue and sell to the several Underwriters (as defined below) 3,500,000 shares
of its Common Stock, $.01 par value (the "Firm Shares").
It is understood that, subject to the conditions hereinafter stated,
2,800,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 700,000 Firm Shares (the "International Shares") will be
sold to the several International Underwriters named in Schedule II hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx
& Xxxxx LLC and X.X. Xxxxxx Securities Inc., shall act as representatives (the
"U.S. Representatives") of the several U.S. Underwriters, and Xxxxxx Xxxxxxx &
Co. International Limited, Xxxxxxxxx & Xxxxx LLC and X.X. Xxxxxx Securities
Ltd., shall act as representatives (the "International Representatives") of the
several International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 525,000 shares of its Common Stock,
$.01 par value (the "Additional Shares") if and to the extent that the U.S.
Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares". The shares of
Common Stock, $.01 par value of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"Common Stock". Each share of Common Stock, including the Shares, will have
attached thereto one-half of one right (collectively, the "Rights") to purchase
one-hundredth of a share of Series A Preferred Stock, $.01 par value of the
Company (the "Series A Preferred Stock"). The Rights have been issued pursuant
to a Rights Agreement (the "Rights Agreement") dated as of September 26, 1988
between the Company and The First National Bank of Boston, as Rights Agent.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-00337),
including a prospectus, relating to the Shares. The registration statement
contains two prospectuses to be used in connection with the offering and sale of
the Shares: the U.S.
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prospectus, to be used in connection with the offering and sale of Shares in the
United States and Canada to United States and Canadian Persons, and the
international prospectus, to be used in connection with the offering and sale of
Shares outside the United States and Canada to persons other than United States
and Canadian Persons. The international prospectus is identical to the U.S.
prospectus except for the outside front cover page. The registration statement
as amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"Securities Act"), is hereinafter referred to as the "Registration Statement";
the U.S. prospectus and the international prospectus in the respective forms
first used to confirm sales of Shares are hereinafter collectively referred to
as the "Prospectus" (including in the case of all references to the Registration
Statement and the Prospectus, documents incorporated therein by reference). If
the Company files a registration statement to register a portion of the Shares
and relies on Rule 462(b) under the Securities Act for such registration
statement to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to the "Registration Statement"
shall be deemed to refer to both the registration statement referred to above
and the Rule 462 Registration Statement, in each case as amended from time to
time.
1. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by
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reference in the Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph 1(b) do not apply to statements
or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries (as defined below), taken as a
whole. The Company has all requisite corporate power and authority
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to execute, deliver and perform its obligations under this Agreement and to
issue, sell and deliver the Shares to be sold by it to the Underwriters as
provided herein.
(d) Each Subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its Subsidiaries, taken as a
whole.
(e) The Company has no direct or indirect subsidiaries other than the
subsidiaries (the "Subsidiaries") listed in Exhibit 21 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1994 (the "Form
10-K"). The Company owns all of the outstanding capital stock or other
securities evidencing equity ownership of each such Subsidiary, free and
clear of any security interest, claim, lien or encumbrance. All of such
securities have been duly authorized, validly issued and are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights. There are no outstanding rights, warrants or options to acquire,
or instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest of any such Subsidiary.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
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(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized by the
Company and, when issued upon issuance of the Shares, will be validly
issued, and the Series A Preferred Stock has been duly authorized by the
Company and validly reserved for issuance upon the exercise of the Rights
and, when issued upon such exercise in accordance with the terms of the
Rights Agreement, will be validly issued, fully paid and non-assessable.
(i) The Common Stock, including the Shares, has been approved for
quotation and trading on the Nasdaq National Market under the symbol
"CNTO".
(j) The Shares have been duly authorized and, when issued, delivered
and paid for in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
(l) (i) Neither the Company nor any of its Subsidiaries is (A) in
violation of its respective certificate of incorporation or bylaws, (B) in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any indenture, mortgage or deed of trust or other
material agreement to which it is a party or by which it is bound or to
which any of its properties is subject, other than any defaults that have
been waived in writing as described in the Prospectus or (C) in violation
of any law, statute, rule, regulation, judgment or court decree applicable
to it, which violation or default under
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clause (A), clause (B) or clause (C), singly or in the aggregate, would
have a material adverse effect on the Company and its Subsidiaries, taken
as a whole. There exists no condition that, with notice, the passage of
time or otherwise, would constitute such a violation or default under any
such document or instrument.
(m) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-
laws of the Company or any agreement or other instrument binding upon the
Company or any of its Subsidiaries that is material to the Company and its
Subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any Subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its Subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(o) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its Subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
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Registration Statement that are not described or filed as required.
(p) Each of the Company and its Subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(q) The accountants who have audited or shall audit the financial
statements filed or to be filed with the Commission as part of the
Registration Statement are independent accountants as required by the
Securities Act. The financial statements, together with the related
schedules and notes thereto set forth in the Registration Statement comply
in all material respects with the requirements of the Securities Act and
have been prepared, and fairly present the financial condition of the
Company and its Subsidiaries and the consolidated financial condition and
results of operations of the Company and its Subsidiaries at the respective
dates and for the respective periods indicated, in accordance with
generally accepted accounting principles consistently applied throughout
such periods.
(r) The Company and its Subsidiaries maintain 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 and (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets.
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(s) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 or Rule 462 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(t) The Company is not 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.
(u) Except as disclosed in the Prospectus, the Company and each of
the Subsidiaries owns, or possesses adequate rights to use, all material
patents, patent rights, inventions, trade secrets, licenses, know-how,
proprietary techniques, including processes and substances, trademarks,
service marks, trade names and copyrights described or referred to in the
Prospectus as owned or used by it or which are necessary for the
conduct of its business as described in the Prospectus, except to the
extent that the Company has granted licenses to Xxx Xxxxx & Co., Glaxo
Wellcome plc and Centocor Partners III, L.P. To the knowledge of the
Company, all such material patents, patent rights, licenses, trademarks,
service marks and copyrights are (i) valid and enforceable and (ii) not
being infringed by any third parties which infringement could, whether
singly or in the aggregate, materially and adversely affect the Company and
its Subsidiaries, taken as a whole. Neither the Company nor any of the
Subsidiaries have knowledge of, nor have they received any notice of,
infringement of or conflict with, asserted rights of others with respect to
any material patents, patent rights, inventions, trade secrets, licenses,
know-how, proprietary techniques, including processes and substances,
trademarks, service marks, trade names or copyrights which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding
could materially and adversely affect the Company and its Subsidiaries,
taken as a whole.
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(v) To the knowledge of the Company, the product license applications
("PLAs") filed with the United States Food and Drug Administration (the
"FDA") with respect to ReoPro and Myoscint comply in all material respects
with the rules and regulations of the FDA regarding the filing of PLAs.
All information and data submitted to the FDA as part of such PLAs were
true and accurate when so filed. To the knowledge of the Company, the
application filed by the Company with the Xxxx Xxxxxxx Institute with
respect to Panorex complies in all material respects with the rules and
regulations governing such application and data submitted to the Xxxx
Xxxxxxx Institute as part of such application were true and accurate when
so filed. The Company reasonably believes that the clinical data submitted
as part of the PLA with respect to Myoscint are sufficient to support
approval of the PLA with respect to Myoscint in the United States.
(w) The Company and its Subsidiaries 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 all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(x) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated
10
costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(y) The Company and its Subsidiaries have complied with all
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
Statutes, and all regulations promulgated thereunder relating to issuers
doing business with the Government of Cuba or with any person or any
affiliate located in Cuba.
2. Agreements to Sell and to Purchase. The Company hereby agrees to
----------------------------------
sell to the several Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company at $ a share (the "Purchase Price") the number of Firm Shares
-----
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm Shares to be
sold by the Company as the number of Firm Shares set forth in Schedule I or
Schedule II hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 525,000
Additional Shares at a purchase price per share equal to the Purchase Price. If
the U.S. Representatives, on behalf of the U.S. Underwriters, elect to exercise
such option, the U.S.
11
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the date of the
Closing Date (as defined below) but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other agreement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares (including the Rights attached thereto) to be sold hereunder;
(B) any shares of Common Stock issued upon the exercise of an option or warrant
or the conversion of a security outstanding on the date of the Prospectus; (C)
any shares of Common Stock issued upon the exercise of any Right; (D) any
options granted or shares of Common Stock
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issued pursuant to existing benefits plans of the Company; or (E) the sale by
the Company's executive officers and directors of up to an aggregate of 200,000
shares of Common Stock.
3. Terms of the Public Offering. The Company is advised by you that
----------------------------
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$ a share (the "Public Offering Price") and to certain dealers selected
-----
by you at a price that represents a concession not in excess of U.S.$ a
----
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may re-allow, a concession, not in excess of U.S.$ a share, to
----
any Underwriter or to certain other dealers.
Each U.S. Underwriter hereby makes to and with the Company the
representations and agreements of such U.S. Underwriter contained in the fifth
and sixth paragraphs of Article III of the Agreement Between U.S. and
International Underwriters of even date herewith. Each International
Underwriter hereby makes to and with the Company the representations and
agreements of such International Underwriter contained in the seventh, eighth,
ninth and tenth paragraphs of Article III of such Agreement.
4. Payment and Delivery. Payment for the Firm Shares shall be made
--------------------
to the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on , 1996, or at such other
---------
time on the same or such other date, not later than , 1996 as shall be
----------
designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date".
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Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on the date specified in the notice
described in Section 2 or on such other date, in any event not later than
, 1996, as shall be designated in writing by the U.S. Representatives.
---------
The time and date of such payment are hereinafter referred to as the "Option
Closing Date".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the purchase price therefor.
5. Conditions to the Company's and the Underwriters' Obligations.
-------------------------------------------------------------
The obligation of the Company to sell the Firm Shares to the Underwriters and
the several obligations of the Underwriters to purchase and pay for the Firm
Shares on the Closing Date are subject to the condition that the Registration
Statement shall have become effective not later than 2 p.m. (New York time) on
the date hereof and that 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.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
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(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement, that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market
the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a) (ii) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
(c) The Underwriters shall have received on the Closing Date an
opinion of Duane, Morris & Heckscher, counsel for the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and
15
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole;
(ii) each Subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(iii) the Company owns all of the outstanding capital stock or
other securities evidencing equity ownership of each such Subsidiary,
free and clear of any security interest, claim, lien or encumbrance.
All of such securities have been duly authorized, validly issued and
are fully paid and nonassessable and were not issued in violation of
any preemptive or similar rights. To the best of such counsel's
knowledge, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest of any such
Subsidiary;
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(iv) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(v) the shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully
paid and non-assessable;
(vi) the Shares have been duly authorized and, when issued,
delivered and paid for in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or
similar rights;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized by the
Company and, when issued upon issuance of the Shares, will be validly
issued, and the Series A Preferred Stock has been duly authorized by
the Company and validly reserved for issuance upon the exercise of the
Rights and, when issued upon such exercise in accordance with the
terms of the Rights Agreement, will be validly issued, fully paid and
non-assessable;
(ix) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon
the Company or any of its Subsidiaries that is material to the Company
and its Subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, or
17
decree of any governmental body, agency or court having jurisdiction
over the Company or any Subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares by the U.S. Underwriters;
(x) the statements (1) in the Prospectus under the captions
"Description of Capital Stock", "Certain United States Federal Tax
Considerations to Non-United States Holders of Common Stock" and
"Underwriters" and (2) in the Registration Statement in Item 15, in
each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(xi) (i) neither the Company nor any of its Subsidiaries is (A)
in violation of its respective certificate of incorporation or bylaws,
(B) to the best of such counsel's knowledge, in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
indenture, mortgage or deed of trust or other material agreement to
which it is a party or by which it is bound or to which any of its
properties is subject, other than any defaults that have been waived
in writing as described in the Prospectus or (C) in violation of any
law, statute, rule, regulation, judgment or court decree applicable to
it, which violation or default under clause (A), clause (B) or clause
(C), singly or in the aggregate, would have a material adverse effect
on the Company and its
18
Subsidiaries, taken as a whole. To the best of such counsel's
knowledge, there exists no condition that, with notice, the passage of
time or otherwise, would constitute such a violation or default under
any such document or instrument;
(xii) after due inquiry, to the best of such counsel's knowledge,
there are no legal or governmental proceedings pending or threatened
to which the Company or any of its Subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required;
(xiii) the Company is not 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;
(xiv) such counsel is of the opinion that the Company is (i) in
compliance with any and all applicable Environmental Laws, (ii) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in
compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries, taken as
a whole;
19
(xv) the Registration Statement has become effective under the
Securities Act and any required filing of the Prospectus, or any
supplement thereto, pursuant to Rule 424 or Rule 462 under the
Securities Act has been made in a manner and within the time period
required thereunder and no stop order suspending the effectiveness of
the Registration Statement or post-effective amendment thereto has
been issued and, to such counsel's knowledge, no proceedings for that
purpose are pending or threatened by the Commission; and
(xvi) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus (except for financial
statements and schedules as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects
with the Exchange Act and the rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules included
therein as to which such counsel need not express any opinion) comply
as to form in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder, (3) believes that
(except for financial statements and schedules as to which such
counsel need not express any belief) the Registration Statement and
the prospectus included therein at the time the Registration Statement
became effective did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (4)
believes that (except for financial statements and schedules as to
which such counsel need not express any belief) the Prospectus does
not contain any untrue statement of a material fact or omit to state a
material
20
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx X. Xxxxx, Corporate Counsel for the Company, dated the
Closing Date, to the effect that:
(i) there is a strong likelihood that the Company will obtain
patents in respect of the several patent applications relating to the
Company's ReoPro and Panorex products set forth in Attachment A to
such opinion (the "Patent Applications");
(ii) patents which issue upon the Patent Applications will
provide significant patent protection to the Company;
(iii) the Company has obtained issued patents relating to ReoPro
and Panorex in , , and (the "Existing
----- -------- ---------
Patents") and maintained the Existing Patents in good standing;
(iv) such counsel does not know of any pending or threatened
legal or government proceedings relating to patents or proprietary
know-how owned or used by the Company to which the Company is a party
or to which the properties of the Company are subject which, if
adversely decided, would have a material adverse effect on the
business, financial condition or results of the operations of the
Company and its Subsidiaries, taken as a whole; and
(v) such counsel has no knowledge of any infringement or alleged
infringement by the Company of patent rights of others which would
have a material adverse effect on the business, financial condition or
results of operations of
21
the Company and its Subsidiaries, taken as a whole.
(vi) the statements in the Prospectus with respect to the receipt
of FDA approval of the Company's PLA regarding ReoPro are true,
correct and complete and such counsel is not aware of any facts that
would lead such counsel to believe that such approval will be
withdrawn by the FDA; and
(vii) the statements in the Prospectus under the captions
"Business -- Governmental Regulation" and "Business -- Legal
Proceedings" and in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein.
(e) You shall have received on the Closing Date an opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (xv) and clauses
(3) and (4) of subparagraph (xvi) of paragraph (c) above, and to the effect
that the statements in the Prospectus under the caption "Underwriters,"
insofar as such statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material respects and
fairly present the matters referred to therein.
With respect to subparagraph (xvi) of paragraph (c) above, Duane,
Morris & Heckscher may state that their opinion and belief are based upon their
participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but is without independent check or
verification except as specified. With respect to paragraph (c) above, Duane,
Morris & Heckscher may rely as to matters of the laws of The Netherlands upon
the opinion of Xxxxxxxx
00
Xxx Xxxxxxxxx; provided that (A) a copy of such opinion is delivered to you and
--------
is form and substance satisfactory to your counsel, and (B) Duane, Morris &
Heckscher shall state in their opinion that they are justified in relying on
such opinion. With respect to paragraph (d) above, Xxxxxx X. Xxxxx may rely upon
the opinion or opinions of other counsel; provided that (A) a copy of each such
--------
opinion is delivered to you and is in form and substance satisfactory to your
counsel, and Xxxxxx X. Xxxxx shall state in his opinion that he is justified in
relying upon such opinion. With respect to clauses (3) and (4) of subparagraph
(xvi) of paragraph (c) above, Xxxxx Xxxx & Xxxxxxxx may state that their opinion
and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and review and discussion
of the contents thereof (including documents incorporated therein by reference),
but are without independent check or verification except as specified.
The opinion of Duane, Morris & Heckscher described in paragraph (c)
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(f) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
(g) The "lock-up" agreements between you and certain shareholders,
officers and directors of the Company in the form of Exhibit A hereto
relating to sales of shares of common stock of the Company or certain other
securities, delivered to you on or before
23
the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters related to
the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
------------------------
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, seven signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto but including
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference, and any supplements and
amendments thereto as you may reasonably request. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended, that are deemed to be
incorporated by reference in the Prospectus. In the case of the
Prospectus, to furnish copies of the Prospectus in New York City and London
prior to 5:00 p.m. (New York City time) on the business day following the
date of this Agreement in such quantities as you reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
24
supplement and to file no such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter
or dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of your
counsel, it is necessary to amend or supplement the Prospectus to comply
with law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending March 31, 1997 that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) To pay all expenses, incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
25
amendments and supplements thereto; (ii) the preparation, issuance and
delivery of the Shares, including any transfer taxes payable in connection
with the transfer of the Shares to the Underwriters; (iii) the fees and
disbursements of the Company's counsel and accountants; (iv) the
qualification of the Shares under the securities or Blue Sky laws in
accordance with the provisions of paragraph (d) above, including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
Memorandum; (v) the printing and delivery to the Underwriters, in
quantities as hereinabove stated, of copies of the Registration Statement
and all amendments thereto and of each preliminary prospectus and the
Prospectus and any amendments or supplements thereto; (vi) the printing and
delivery to the Underwriters of copies of any Blue Sky Memorandum; (vii)
the filing fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc. made in
connection with the offering of the Shares; (viii) expenses incurred in
connection with a "road show" presentation to potential investors
consistent with customary practices and in accordance with past practices
and (ix) any expenses incurred in connection with the approval of the
Shares for quotation on the Nasdaq National Market.
7. Indemnity and Contribution. The Company agrees to indemnify and
--------------------------
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments
26
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the
27
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate firm
for the Underwriters and such control persons of Underwriters, such firm shall
be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
28
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph
of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate public offering
price of the Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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 or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the
29
respective number of Shares they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 7
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
30
8. Termination. This Agreement shall be subject to termination by
-----------
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
--------------------------------------
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
--------
that in
31
no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 2 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date or the Option Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares to be
purchased on such date, and arrangements satisfactory to you and the Company for
the purchase of such Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date or the Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
32
11. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
--------
been inserted for the convenience of reference only an shall not be deemed a
part of this Agreement.
Very truly yours,
CENTOCOR, INC.
By
----------------------------
Name:
Title:
33
Accepted as of the date hereof
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXXXX & XXXXX LLC
X.X. XXXXXX SECURITIES INC.
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By
------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXXXX & XXXXX LLC
X.X. XXXXXX SECURITIES LTD.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co.
International Limited
By
------------------------------
Attorney-in-fact
34
Schedule I
U.S. Underwriters
-----------------
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Inc.
---------------
Total U.S. Firm Shares .............. 2,800,000
================
35
Schedule II
International Underwriters
--------------------------
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co.
International Limited
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Ltd.
--------------
Total International Firm Shares .... 700,000
==============
36
Exhibit A
---------
[Form of Lock-up Contract]
--------------------------
, 1996
------------
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co.
Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Ltd.
c/o Morgan Xxxxxxx & Co.
International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that you, as Representatives of the
several Underwriters, propose to enter into an Underwriting Agreement with
Centocor, Inc., a Pennsylvania corporation (the "Company") providing for the
public offering (the "Public Offering") by the several Underwriters, including
yourselves, of 3,500,000 shares (the "Shares") of the Common Stock, $.01 par
value of the Company (the "Common Stock").
1
In consideration of the Underwriters' agreement to purchase and make
the Public Offering of the Shares, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf
of the Underwriters, it will not, during the period ending 90 days after the
date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock (whether such shares or any
such securities are now owned by the undersigned or are hereafter acquired), or
(2) enter into any swap or other agreement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Shares to be sold
pursuant to the Public Offering or to the sale by the Company's executive
officers and directors of up to an aggregate of 200,000 shares of Common Stock.
If the undersigned is an executive officer or director of the Company and
intends to sell any shares of Common Stock pursuant to the immediately preceding
sentence, then the undersigned hereby agrees to effect such sale in accordance
with instructions received from the V.P., Finance and Chief Financial Officer of
the Company. In addition, the undersigned agrees that, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it
will not, during the period ending 90 days after the date of the Prospectus,
make any demand for or exercise any right with respect to, the registration of
any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
Very truly yours,
2
----------------------------------
------------------------- (Name)
----------------------------------
(Address)
-------------------------
3
Accepted as of the date
first set forth above:
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXXXX & XXXXX LLC
X.X. XXXXXX SECURITIES INC.
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I to the Underwriting
Agreement referred to above.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By
------------------------------
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXXXX & XXXXX LLC
X.X. XXXXXX SECURITIES LTD.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II to the Underwriting
Agreement referred to above.
By Xxxxxx Xxxxxxx & Co.
International Limited
By
------------------------------
Attorney-in-fact
4
