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EXHIBIT 1.1
SANGSTAT MEDICAL CORPORATION
2,000,000 SHARES(1)
COMMON STOCK
UNDERWRITING AGREEMENT
February , 0000
XXXXXXXXX & XXXXX LLC
XXXXXXXXXX SECURITIES
XXXXXXXXX XXXXXXXX & COMPANY LLC
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
SangStat Medical Corporation, a Delaware corporation (herein called the
Company), proposes to issue and sell 2,000,000 shares of its authorized but
unissued Common Stock, $0.001 par value (herein called the Common Stock) (said
2,000,000 shares of Common Stock being herein called the Underwritten Stock).
The Company proposes to grant to the Underwriters (as hereinafter defined) an
option to purchase up to 300,000 additional shares of Common Stock (herein
called the Option Stock and with the Underwritten Stock herein collectively
called the Stock). The Common Stock is more fully described in the Registration
Statement and the Prospectus hereinafter mentioned.
The Company hereby confirms the agreements made with respect to the
purchase of the Stock by the several underwriters, for whom you are acting,
named in Schedule I hereto (herein collectively called the Underwriters, which
term shall also include any underwriter purchasing Stock pursuant to Section
3(b) hereof). You represent and warrant that you have been authorized by each of
the other Underwriters to enter into this Agreement on its behalf and to act for
it in the manner herein provided.
1. REGISTRATION STATEMENT. The Company has filed with the Securities and
Exchange Commission (herein called the Commission) a registration statement on
Form S-3 (No. 333- ), including the related preliminary prospectus, for the
registration under the Securities Act of 1933, as amended (herein called the
Securities Act), of the Stock. Copies of such registration statement and of each
amendment thereto, if any, including the related preliminary prospectus (meeting
the requirements of Rule 430A of the rules and regulations of the Commission)
heretofore filed by the Company with the Commission have been delivered to you.
The term Registration Statement as used in this Agreement shall mean such
registration statement, including all documents incorporated by reference
therein, all exhibits and financial statements, all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus referred to
below, in the form in which it became effective, and any registration statement
filed pursuant to Rule 462(b) of the rules and regulations of the Commission
with respect to the Stock (herein called a Rule 462(b) registration statement),
and, in the event of any amendment thereto after the effective date of such
registration statement (herein called the Effective Date), shall also mean (from
and after the effectiveness of such amendment) such registration statement as so
amended (including any Rule 462(b) registration statement). The term Prospectus
as used in this Agreement shall mean the
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(1) Plus an option to purchase from the Company up to 300,000 additional shares
to cover over- allotments.
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prospectus, including the documents incorporated by reference therein, relating
to the Stock first filed with the Commission pursuant to Rule 424(b) and Rule
430A (or if no such filing is required, as included in the Registration
Statement) and, in the event of any supplement or amendment to such prospectus
after the Effective Date, shall also mean (from and after the filing with the
Commission of such supplement or the effectiveness of such amendment) such
prospectus as so supplemented or amended. The term Preliminary Prospectus as
used in this Agreement shall mean each preliminary prospectus, including the
documents incorporated by reference therein, included in such registration
statement prior to the time it becomes effective.
The Registration Statement has been declared effective under the Securities
Act, and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. The Company has caused to be delivered
to you copies of each Preliminary Prospectus and has consented to the use of
such copies for the purposes permitted by the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants as follows:
(a) (i) The Registration Statement and any amendments thereto comply,
and any subsequent amendments will comply, in all material respects with
the provisions of the Securities Act and the Securities Exchange Act of
1934, as amended (the Exchange Act), and the rules and regulations of the
Commission thereunder and do not, and will not, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; and (ii) the Prospectus and any supplements thereto do not, and
will not, contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties contained in this paragraph
(a) shall not apply to statements or omissions in the Registration
Statement, the Prospectus or any Preliminary Prospectus (or any supplement
or amendment to them) based upon information set forth (i) on the cover
page of the Prospectus with respect to price, underwriting discount and
terms of the offering, and (ii) under "Underwriting" in the Prospectus
furnished to the Company in writing by or on behalf of any Underwriter
through you, expressly for use therein.
(b) 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 (a) or (b) under the Act, complied when so filed in
all material respects with the Securities Act; and the Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus nor instituted proceedings for that purpose.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business as it is currently being conducted, as described in the
Prospectus, and to own, lease and operate its properties; is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have material adverse effect on the
Company.
(d) The Company does not presently own or control, directly or
indirectly, any interest in any corporation, association, or other business
entity other than SangStat Atlantique S.A., SangStat Canada Ltd. and
XenoStat, Inc.
(e) All the outstanding shares of capital stock of the Company, as set
forth under the heading "Capitalization" in the Prospectus, have been duly
authorized and validly issued and are fully paid, nonassessable and not
subject to any preemptive or similar rights, have been issued in compliance
with all federal and state securities laws, and conform to the description
thereof contained in the Prospectus; and the Stock has been duly authorized
and, when issued and delivered to the Underwriters against payment therefor
as provided by this Agreement, will be
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validly issued, fully paid and non-assessable, and the issuance of such
Stock will not be subject to any preemptive or similar rights.
(f) The authorized capital stock of the Company, including the Common
Stock, conforms as to legal matters to the description thereof contained in
the Prospectus. No shareholder of the Company has any right which has not
been waived to require the Company to register the sale of any shares owned
by such shareholder under the Securities Act in the public offering
contemplated by this Agreement. No further approval or authority of the
shareholders or the Board of Directors of the Company will be required for
the issuance and sale of the Stock to be sold by the Company as
contemplated herein.
(g) Except as disclosed in or contemplated by the Prospectus and the
financial statements of the Company, and the related notes thereto,
included in the Prospectus, there are no outstanding warrants or options to
purchase, or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any contracts
or commitments to issue or sell, shares of the Company's capital stock or
any such warrants, options, rights, convertible securities or obligations.
The description of the Company's stock option, stock purchase and other
stock plans or arrangements, and the options or other rights granted and
exercised thereunder, set forth in the Prospectus accurately presents the
information required to be shown with respect to such plans, arrangements,
options and rights.
(h) The Company is not in violation of its charter or by-laws or in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness material to the conduct of the business of the Company or in
any other agreement, indenture or instrument material to the conduct of the
business of the Company to which the Company is a party or by which it or
its property is bound which default would have a material adverse effect on
the Company.
(i) The Company has full legal right, power and authority to enter
into this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, or by general equitable principles. The execution,
delivery and performance of this Agreement, compliance by the Company with
all the provisions hereof and the consummation of the transactions
contemplated hereby will not require any consent, approval, authorization
or other order of any court, regulatory body, administrative agency or
other governmental body (except as such may be required under the
securities or Blue Sky laws of the various states) and the clearance of the
offering with the National Association of Securities Dealers, Inc. (the
"NASD"); and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of the
Company or any agreement or other instrument to which it is a party or by
which its property is bound, or violate or conflict with any laws,
administrative regulation or ruling or court decrees applicable to the
Company or its property, which breach, default or conflict would have a
material adverse effect on the Company.
(j) Except as otherwise set forth in the Prospectus, there are no
material legal, governmental or administrative proceedings pending to which
the Company is a party or of which its property is subject, and, to the
best of the Company's knowledge, no such proceedings are currently
threatened.
(k) The Company has not violated any foreign, federal, state or local
laws relating to the protection of human health and safety, the
environment, or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") or similar law applicable to its
business, nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the
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Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, financial condition or results of operation
of the Company.
(l) Except as otherwise set forth in the Prospectus or such as are not
material to the business, financial condition or results of operation of
the Company, the Company has good and indefeasible title, free and clear of
all liens, claims, encumbrances and restrictions except liens for taxes not
yet due and payable, and other liens which do not have a material adverse
effect on the Company, to all property and assets described in the
Registration Statement as being owned by it. All leases to which the
Company is a party are valid and binding on the Company and no default has
occurred or is continuing thereunder which might result in any material
adverse change in the business, financial condition or results of operation
of the Company, and the Company enjoys peaceful and undisturbed possession
under all such leases to which it is a party as lessee with such exceptions
as do not materially interfere with the use made by the Company.
(m) The Company has filed all foreign, federal, state and local income
tax returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it, except those
contested by the Company in good faith. There is no tax deficiency which
has been, or to the Company's knowledge, might be asserted or threatened
against the Company which could materially and adversely affect the
business operations or property or business prospects of the Company. The
Company has paid all sales, use and transfer taxes applicable to it and its
business and operations, except those contested by the Company in good
faith. The Company has not received any notice of deficiency or claim for
payment from any governmental or regulatory body with respect to such
sales, use or transfer taxes.
(n) The Company maintains insurance of the types and in amounts which
it deems adequate for its business, including but not limited to general
liability insurance and insurance covering all real and personal property
owned or leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against by business
organizations that are similarly situated, all of which insurance is in
full force and effect.
(o) Deloitte & Touche, who have expressed their opinion with respect
to the financial statements and schedules filed with the Commission as a
part of the Registration Statement and included in the Prospectus and in
the Registration Statement are independent public accountants with respect
to the Company as required by the Act.
(p) The audited financial statements, taken as a whole, together with
related schedules and notes forming part of the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company on the basis stated in the Registration
Statement as of the respective dates or for the respective periods to which
they apply, such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company, as certified by the independent
accountants named in Section 2(o) herein.
(q) There are no contracts or other documents required to be described
in the Registration Statement or to be filed as exhibits to the
Registration Statement by the Securities Act or by the rules and
regulations which have not been described or filed as required. The
contracts so described in the Prospectus are in full force and effect on
the date hereof, and neither the Company nor, to the Company's actual
knowledge, any other party, is in material breach of or default under any
of such contracts.
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(r) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) the Company has not
incurred any material liabilities or obligations, indirect, direct or
contingent, or entered into any material verbal or written agreement or
other transaction which is not in the ordinary course of business or which
could result in a material reduction in the future earnings of the Company,
(ii) the Company has not sustained any material loss or interference with
its business or properties from fire, flood, windstorm, earthquake,
accident or other calamity, whether or not covered by insurance; (iii) the
Company has not paid or declared any dividends or other distributions with
respect to its capital stock and the Company is not in default in the
payment of principal or interest on any outstanding debt obligations; (iv)
there has not been any change in the capital stock (other than upon the
sale of the Stock hereunder and upon the exercise of options and warrants)
or indebtedness material to the Company (other than in the ordinary course
of business); and (v) there has not been any material adverse change in the
condition (financial or otherwise), business, properties, results of
operations or prospects of the Company.
(s) Except as disclosed in or specifically contemplated by the
Prospectus, the Company owns or possesses adequate licenses or other rights
to use all trademarks, servicemarks, trade names, patents, patent rights,
inventions, copyrights, know-how, licenses, approvals and governmental
authorizations to conduct its business as now conducted or as proposed to
be conducted by it as described in the Prospectus. Except as disclosed in
the Prospectus, the expiration of any trademarks, trade names, patent
rights, copyrights, licenses, approvals or governmental authorizations
would not have a material adverse effect on the condition (financial or
otherwise), business, results or operations or prospects of the Company and
the Company has no knowledge of any material infringement by it of
trademark, trade name rights, patent rights, copyrights, licenses, trade
secret or other similar rights of others.
The Company has not received any notice of infringement of or conflict
with (and knows of no such infringement of or conflict with) asserted
rights of others with respect to any patents, patent rights, inventions,
trademarks, service marks, trade names, copyrights or know-how which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the business,
operations, financial condition, income or business prospects of the
Company, and the discoveries, inventions, products or processes referred to
in the Prospectus do not, to the knowledge of the Company, infringe or
conflict with any right or patent, or any discovery, invention, product or
process which is the subject of a patent application known to the Company.
(t) No holder of any security of the Company has any right to require
registration of the shares of Common Stock or any other security of the
Company within [90] days of the date hereof, except as have been waived in
writing.
(u) All transactions between the Company and the officers, directors,
promoters and principal shareholders of the Company required to be
disclosed under the Securities Act have been accurately disclosed in the
Prospectus; and the Company believes that terms of each such transaction
are fair to the Company and no less favorable to the Company than the terms
that could have been obtained from unrelated parties.
(v) The Company has not, directly or indirectly, at any time during
the past five years (i) made any unlawful contribution to any candidate for
public office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any United States or foreign federal,
state or local governmental agency, officer or official, or other person
charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the applicable jurisdiction.
(w) The Company has obtained such permits, licenses, franchises and
authorizations of governmental or regulatory authorities (the "Permits"),
including, without limitation, under
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applicable Environmental Laws, as are necessary to own, lease and operate
its properties and conduct its business, and the Company has fulfilled and
performed all of its material obligations with respect to such Permits and
no event has occurred which allows, or after notice or lapse of time would
allow, the revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such Permit, and
except as described in the Prospectus, such Permits contain no restrictions
which are materially burdensome to the Company.
(x) The Company has filed in a timely manner all documents that the
Company was required to file with the Commission under Sections 13, 14(a)
and 15(d) of the Exchange Act during the 12 months preceding the date on
which the Registration Statement became effective.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Company agrees to issue and sell the
Underwritten Stock to the several Underwriters and each of the Underwriters
agrees to purchase from the Company the respective aggregate number of shares of
Underwritten Stock set forth opposite its name in Schedule I. The price at which
such Underwritten Stock shall be sold by the Company and purchased by the
several Underwriters shall be $ per share. In making this Agreement,
each Underwriter is contracting severally and not jointly; except as provided in
paragraphs (b) and (c) of this Section 3, the agreement of each Underwriter is
to purchase only the respective number of shares of Underwritten Stock specified
in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail or refuse
(otherwise than for a reason sufficient to justify the termination of this
Agreement under the provisions of Section 8 or 9 hereof) to purchase and pay for
the number of shares of Stock agreed to be purchased by such Underwriter or
Underwriters, the Company shall immediately give notice thereof to you, and the
non-defaulting Underwriters shall have the right within 24 hours after the
receipt by you of such notice to purchase, or procure one or more other
Underwriters to purchase, in such proportions as may be agreed upon between you
and such purchasing Underwriter or Underwriters and upon the terms herein set
forth, all or any part of the Stock which such defaulting Underwriter or
Underwriters agreed to purchase. If the non-defaulting Underwriters fail so to
make such arrangements with respect to all such shares and portion, the number
of shares of Stock which each non-defaulting Underwriter is otherwise obligated
to purchase under this Agreement shall be automatically increased on a pro rata
basis to absorb the remaining shares and portion which the defaulting
Underwriter or Underwriters agreed to purchase; provided, however, that the
non-defaulting Underwriters shall not be obligated to purchase the shares and
portion which the defaulting Underwriter or Underwriters agreed to purchase if
the aggregate number of such shares of Stock exceeds 10% of the total number of
shares of Stock which all Underwriters agreed to purchase hereunder. If the
total number of shares of Stock which the defaulting Underwriter or Underwriters
agreed to purchase shall not be purchased or absorbed in accordance with the two
preceding sentences, the Company shall have the right, within 24 hours next
succeeding the 24-hour period above referred to, to make arrangements with other
underwriters or purchasers satisfactory to you for purchase of such shares and
portion on the terms herein set forth. In any such case, either you or the
Company shall have the right to postpone the Closing Date determined as provided
in Section 5 hereof for not more than seven business days after the date
originally fixed as the Closing Date pursuant to said Section 5 in order that
any necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made. If the shares which the defaulting
Underwriter or Underwriters failed to purchase exceeds 10% of the Underwritten
Stock, and neither the non-defaulting Underwriters nor the Company shall make
arrangements within the 24-hour periods stated above for the purchase of all the
Stock which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall be terminated without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph (b), and no action taken
hereunder, shall relieve any
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defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants herein
contained, and subject to the terms and conditions herein set forth, the Company
grants an option to the several Underwriters to purchase, severally and not
jointly, the Option Stock from the Company at the same price per share as the
Underwriters shall pay for the Underwritten Stock. Said option may be exercised
only to cover over-allotments in the sale of the Underwritten Stock by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the thirtieth day after the date of this Agreement upon
written or telegraphic notice by you to the Company setting forth the aggregate
number of shares of Option Stock as to which the several Underwriters are
exercising the option. Delivery of certificates for the Option Stock, and
payment therefor, shall be made as provided in Section 5 hereof. The number of
shares of Option Shares to be purchased by each Underwriter shall be the same
percentage of the total number of shares of Option Stock to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Stock, as adjusted by you in such manner as you deem advisable to avoid
fractional shares.
4. OFFERING BY UNDERWRITERS.
(a) The terms of the initial public offering by the Underwriters of the
Stock to be purchased by them shall be as set forth in the Prospectus. The
Underwriters may from time to time change the public offering price after the
closing of the initial public offering and increase or decrease the concessions
and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the front cover page
and the first paragraph, chart, second paragraph, third paragraph, fifth
paragraph and last paragraph under "Underwriting" in the Registration Statement,
any Preliminary Prospectus and the Prospectus relating to the Stock filed by the
Company (insofar as such information relates to the Underwriters) constitutes
the only information furnished by the Underwriters to the Company for inclusion
in the Registration Statement, any Preliminary Prospectus, and the Prospectus,
and you on behalf of the respective Underwriters represent and warrant to the
Company that the statements made therein are correct.
5. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the Underwritten Stock and the Option
Stock (if the option granted by Section 3(c) hereof shall have been exercised
not later than 7:00 A.M., San Francisco time, on the date two business days
preceding the Closing Date (as defined herein)), and payment therefor, shall be
made at the office of Xxxxxxx, Xxxxxxx & Xxxxxxxx in Palo Alto, California, at
7:00 a.m., San Francisco time, on the fourth business day after the date of this
Agreement, or at such time on such other day, not later than seven full business
days after such fourth business day, as shall be agreed upon in writing by the
Company and you. The date and hour of such delivery and payment (which may be
postponed as provided in Section 3(b) hereof) are herein called the Closing
Date.
(b) If the option granted by Section 3(c) hereof shall be exercised after
7:00 a.m., San Francisco time, on the date two business days preceding the
Closing Date, delivery of certificates for the shares of Option Stock, and
payment therefor, shall be made at the office of Xxxxxxx, Phleger & Xxxxxxxx in
Palo Alto, California, at 7:00 a.m., San Francisco time, on the third business
day after the exercise of such option. The date and hour of such delivery and
payment are herein called the Option Closing Date.
(c) Payment for the Stock purchased from the Company shall be made to the
Company or its order by one or more certified or official bank check or checks
in next day funds (and the Company agrees not to deposit any such check in the
bank on which drawn until the day following the date of its delivery to the
Company). Such payment shall be made upon delivery of certificates for the Stock
to you for the respective accounts of the several Underwriters against receipt
therefor signed by you. Certificates for the Stock to be delivered to you shall
be registered in such name or names and shall be in such denominations as you
may request at least one business day before the Closing Date, in the
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case of Underwritten Stock, and at least one business day prior to the purchase
thereof, in the case of the Option Stock. Such certificates will be made
available to the Underwriters for inspection, checking and packaging at the
offices of Lewco Securities Corporation, 0 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on
the business day prior to the Closing Date or, in the case of the Option Stock,
by 3:00 p.m., New York time, on the business day preceding the date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
for shares to be purchased by any Underwriter whose check shall not have been
received by you on the Closing Date or any later date on which Option Stock is
purchased for the account of such Underwriter. Any such payment by you shall not
relieve such Underwriter from any of its obligations hereunder.
6. FURTHER AGREEMENTS OF THE COMPANY.
The Company covenants and agrees as follows:
(a) To use its best efforts to cause the Registration Statement and any
amendment thereto, if not effective at the time and date that this Agreement is
executed and delivered by the parties hereto, to become effective.
(b) To advise you promptly in writing, (i) of the receipt of any comments
of the Commission, (ii) when the Registration Statement has become effective and
when any post-effective amendment to the Registration Statement becomes
effective, (iii) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Stock for offering or sale in any jurisdiction(s) or the
initiation of any proceeding for such purposes, and (v) of the happening of any
event during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal or lifting of such order
at the earliest possible time.
(c) To furnish to you, without charge, three signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration Statement
as so filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) Not to file any amendment to the Registration Statement (other than a
post effective amendment of which the purpose is to deregister any portion of
Option Stock remaining unpurchased upon lapse or cancellation of the
Underwriters option) including, without limitation, documents incorporated by
reference, whether before or after the time when it becomes effective, or to
make any amendment or supplement to the Prospectus of which you have not been
furnished with a copy a reasonable time prior to such filing or to which you
reasonably object or which is not in compliance with the Securities Act; and to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus which
may be necessary or advisable in connection with the distribution of the Stock
by you, and to use its best efforts to cause the same to become promptly
effective.
(e) Promptly after the Registration Statement becomes effective, and from
time to time thereafter for such period as in the opinion of counsel for the
Underwriters a prospectus is required by law to be delivered in connection with
sales by an Underwriter or a dealer, to furnish to each Underwriter and dealer
as many copies of the Registration Statement, the Prospectus, any Preliminary
Prospectus, and any amendment or supplement to the Prospectus as such
Underwriter or dealer may reasonably request.
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(f) If during the period specified in paragraph (e) any event shall occur
as a result of which, in the opinion of counsel for the Underwriters, it becomes
necessary or advisable to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing at any time
that the Prospectus is required to be delivered under the Act, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with any
law, to prepare and file with the Commission, without delay and at the Company's
expense, an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances existing when it is so delivered, be misleading, or
so that the Prospectus will comply with applicable laws, and to cause the
Registration Statement to become effective as soon as practicable, and to
furnish to each Underwriter and to such dealers as you shall specify, such
number of copies thereof as such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Stock, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification (or exemption from the application of the state securities or Blue
Sky laws) of the Stock for offer and sale by the several Underwriters and by
dealers under such laws of such states and other jurisdictions as you may
request, and to continue such qualification in effect for a period of five years
after the date hereof, provided that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent.
(h) To advise you promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Stock for offering, sale
or trading in any state or other jurisdiction or any initiation or threat of any
proceeding for any such purpose, and, in the event of the issuance of any order
suspending such qualification, registration or exemption, to use its best
efforts, with your cooperation, to obtain the withdrawal thereof.
(i) To mail and make generally available to its stockholders as soon as
reasonably practicable, but not later than 45 days after the end of the first
fiscal quarter ending after the first anniversary of the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Act), an earnings
statement (which need not be audited) covering a period of at least twelve
months following the effective date of the Registration Statement which shall
satisfy the provisions of the last paragraph of Section 11(a) of the Act.
(j) During the period of five years following the date hereof, the Company
will furnish to its stockholders, as soon as practicable after the end of each
respective period, annual reports (including financial statements audited by
independent certified public accountants) and unaudited quarterly reports of
operations for each of the first three quarters of the fiscal year, and will
furnish to you and the other several Underwriters hereunder, upon request (i)
concurrently with furnishing such report to its stockholders, statements of
operations of the Company for each of the first three quarters in the form
furnished to the Company's stockholders; (ii) concurrently with furnishing to
its stockholders, a balance sheet of the Company as of the end of such fiscal
year, together with statements of operations, of stockholders' equity, and of
cash flows of the Company for such fiscal year, accompanied by a copy of a
certificate or report thereon of independent certified public accountants; (iii)
as soon as they are available, copies of all reports (financial or other) mailed
to stockholders; (iv) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, any securities
exchange or the National Association of Securities Dealers, Inc. ("NASD"); and
(v) any additional information of a public nature concerning the Company or its
business that you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to the obligations
of the Company under this Agreement, including, without limiting the generality
of the foregoing, all costs, fees, expenses and taxes incident to (i) the
preparation, printing, filing and distribution under the Securities Act of the
Registration Statement (including financial statements and exhibits),
Preliminary Prospectus and all amendments and supplements to any of them prior
to or during the period specified in paragraph (e), (ii) the printing and
delivery of each Preliminary Prospectus and the Prospectus and all amendments
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or supplements thereto during the period specified in paragraph (e), (iii) the
printing and delivery of this Agreement, the Preliminary and Supplemental Blue
Sky Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the Stock
(including in each case any disbursements of counsel for the Underwriters
relating to such printing and delivery), (iv) the registration or qualification
of the Stock for offer and sale under the securities or Blue Sky laws of the
several states (including in each case the fees and disbursements of counsel for
the Underwriters relating to such registration or qualification and memoranda
relating thereto), (v) filing fees with the NASD in connection with the
offering, (vi) the listing of the Stock on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") National Market System,
(vii) furnishing such copies of the Registration Statement, the Prospectus and
all amendments and supplements thereto as may be requested for use in connection
with the offering or sale of the Stock by the Underwriters or by dealers to whom
Stock may be sold, (viii) the registration and transfer of the Stock, including
but not limited to all fees and expenses of the Registrar and Transfer Agent,
(ix) the issue and sale of Stock to the Underwriters, including but not limited
to all necessary issue, transfer and other stamp taxes, (x) services provided by
Company's counsel and independent accountants, and (xi) all other fees, costs
and expenses referred to in Item 14 of the Registration Statement. Except as
provided in this Section 6(k), and Section 6(l) and Section 7 hereof, the
Underwriters shall pay all of their own expenses, including the fees and
disbursements of their counsel (excluding those relating to qualification,
registration or exemption under the Blue Sky Laws).
(l) To reimburse the several Underwriters for out-of-pocket expenses,
including fees and disbursements of counsel, incurred in connection with
investigating, marketing and proposing to market the Stock or in contemplation
of performing their obligations hereunder, if this Agreement shall not be
consummated because the obligations of the Underwriters under this Agreement are
discharged pursuant to clause (iii) of Section 9(d) hereof, or by reason of any
failure, refusal or inability on the part of the Company to perform any
undertaking or to satisfy any condition of this Agreement or to comply with any
of the terms hereof on their part to be performed, unless such failure to
satisfy said condition or to comply with said terms is due to the default or
omission of any Underwriter, but the Company shall not in any event be liable to
any of the several Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Stock.
(m) During the period of 90 days following the effective date of the
Registration Statement, without the prior written consent of Xxxxxxxxx & Xxxxx,
not to directly or indirectly offer to sell, contract to sell or otherwise sell,
pledge, transfer or dispose of any shares of Common Stock of the Company, or any
securities convertible into or exchangeable for shares of Common Stock of the
Company or options, rights or warrants with respect to any shares of Common
Stock of the Company except for (i) the sale of the Underwritten Stock and the
Option Stock hereunder, (ii) the issuance of Common Stock pursuant to the
exercise of outstanding options and warrants disclosed in the Prospectus, (iii)
the grant of options under the Company's Option Plan as disclosed in the
Prospectus as such Plan exists on the date of the Prospectus and (iv) pursuant
to equipment or lease financing activities entered into in the ordinary course
of the Company's business.
(n) To apply the net proceeds of the sale of the Stock substantially in
accordance with its statements under the caption "Use of Proceeds" in the
Prospectus.
(o) To use its best efforts to maintain the inclusion of such Common Stock
in the NASDAQ National Market System (or on a national securities exchange) for
a period of five years after the effective date of the Registration Statement.
(p) During a period of 90 days from the effective date of the Registration
Statement, without the prior written consent of the Representatives, not to file
a registration statement registering shares under any stock option or other
employee benefit plan.
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(q) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or the Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Stock.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person (including each partner or officer thereof) who controls any
Underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages or liabilities, joint or several, to
which such indemnified parties or any of them may become subject under the
Securities Act, the Securities Exchange Act of 1934, as amended (herein called
the Exchange Act), the common law or otherwise, and the Company agrees to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including, except as otherwise hereinafter provided, reasonable fees
and disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof and any Rule 462(b) registration
statement) or any post-effective amendment thereto (including any Rule 462(b)
registration statement), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that (1) the indemnity agreements of the Company
contained in this paragraph (a) shall not apply to any such losses, claims,
damages, liabilities or expenses if such statement or omission was made in
reliance upon and in conformity with information furnished as herein stated or
otherwise furnished in writing to the Company by or on behalf of any Underwriter
for use in any Preliminary Prospectus or the Registration Statement or the
Prospectus or any such amendment thereof or supplement thereto and (2) the
indemnity agreement contained in this paragraph (a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages, liabilities or
expenses purchased the Stock which is the subject thereof (or to the benefit of
any person controlling such Underwriter) if at or prior to the written
confirmation of the sale of such Stock a copy of the Prospectus (or the
Prospectus as amended or supplemented) was not sent or delivered to such person
(excluding the documents incorporated therein by reference) and the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented) unless the failure is the result of noncompliance by the Company
with paragraph (e) of Section 6 hereof. The indemnity agreements of the Company
contained in this paragraph (a) and the representations and warranties of the
Company contained in Section 2 hereof shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the delivery of and payment for the Stock.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its officers who signs the Registration Statement on his own
behalf or pursuant to a power of attorney, each of its directors, each other
Underwriter and each person (including each partner or officer thereof) who
controls the Company or any such other Underwriter within the meaning of Section
15 of the Securities Act, from and against any and all losses, claims, damages
or liabilities, joint or several, to which such indemnified parties or any of
them may become subject under the Securities Act, the Exchange Act, the common
law or otherwise and to reimburse each of them for any legal or other expenses
(including, except as otherwise hereinafter provided, reasonable fees and
disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such
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losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (including the Prospectus as part thereof and any Rule
462(b) registration statement) or any post-effective amendment thereto
(including any Rule 462(b) registration statement) or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment thereof or supplement
thereto) or the omission or alleged omission to state therein 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 such statement or
omission was made in reliance upon and in conformity with information furnished
as herein stated or otherwise furnished in writing to the Company by or on
behalf of such indemnifying Underwriter for use in the Registration Statement,
any Preliminary Prospectus or the Prospectus or any such amendment thereof or
supplement thereto. The indemnity agreement of each Underwriter contained in
this paragraph (b) shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any indemnified party
and shall survive the delivery of and payment for the Stock.
(c) Each party indemnified under the provision of paragraphs (a) and (b) of
this Section 7 agrees that, upon the service of a summons or other initial legal
process upon it in any action or suit instituted against it or upon its receipt
of written notification of the commencement of any investigation or inquiry of
or proceeding against it in respect of which indemnity may be sought on account
of any indemnity agreement contained in such paragraphs, it will promptly give
written notice (herein called the Notice) of such service or notification to the
party or parties from whom indemnification may be sought hereunder. No
indemnification provided for in such paragraphs shall be available to any party
who shall fail so to give the Notice if the party to whom such Notice was not
given was unaware of the action, suit, investigation, inquiry or proceeding to
which the Notice would have related and was prejudiced by the failure to give
the Notice, but the omission so to notify such indemnifying party or parties of
any such service or notification shall not relieve such indemnifying party or
parties from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of such indemnity agreement. Any
indemnifying party shall be entitled at its own expense to participate in the
defense of any action, suit or proceeding against, or investigation of or
inquiry into, an indemnified party. Any indemnifying party shall be entitled, if
it so elects within a reasonable time after receipt of the Notice by giving
written notice (herein called the Notice of Defense) to the indemnified party,
to assume (alone or in conjunction with any other indemnifying party or parties)
the entire defense of such action, suit, investigation, inquiry or proceeding,
in which event such defense shall be conducted, at the expense of the
indemnifying party or parties, by counsel chosen by such indemnifying party or
parties and reasonably satisfactory to the indemnified party or parties;
provided, however, that (i) if the indemnified party or parties reasonably
determine that there may be a conflict between the positions of the indemnifying
party or parties and of the indemnified party or parties in conducting the
defense of such action, suit, investigation, inquiry or proceeding or that there
may be legal defenses available to such indemnified party or parties different
from or in addition to those available to the indemnifying party or parties,
then counsel for the indemnified party or parties shall be entitled to conduct
the defense to the extent reasonably determined by such counsel to be necessary
to protect the interests of the indemnified party or parties and (ii) in any
event, the indemnified party or parties shall be entitled to have counsel chosen
by such indemnified party or parties participate in, but not conduct, the
defense. If, within a reasonable time after receipt of the Notice, an
indemnifying party gives a Notice of Defense and the counsel chosen by the
indemnifying party or parties is reasonably satisfactory to the indemnified
party or parties, the indemnifying party or parties will not be liable under
paragraphs (a) through (c) of this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party or parties in connection with the
defense of the action, suit, investigation, inquiry or proceeding, except that
(A) the indemnifying party or parties
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shall bear the legal and other expenses incurred in connection with the conduct
of the defense as referred to in clause (i) of the proviso to the preceding
sentence and (B) the indemnifying party or parties shall bear such other
expenses as it or they have authorized to be incurred by the indemnified party
or parties. If, within a reasonable time after receipt of the Notice, no Notice
of Defense has been given, the indemnifying party or parties shall be
responsible for any legal or other expenses incurred by the indemnified party or
parties in connection with the defense of the action, suit, investigation,
inquiry or proceeding.
(d) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under paragraph (a) or (b) of
this Section 7, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in paragraph (a) or (b) of this Section 7 (i) in such proportion as
is appropriate to reflect the relative benefits received by each indemnifying
party from the offering of the Stock 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 each indemnifying party in connection with
the statements or omissions that 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 and the
Underwriters shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Stock received by the Company and
the total underwriting discount received by the Underwriters, as set forth in
the table on the cover page of the Prospectus, bear to the aggregate public
offering price of the Stock. 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 each indemnifying party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission.
The parties agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities, or actions in respect thereof, referred to in the first sentence
of this paragraph (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating,
preparing to defend or defending against any action or claim which is the
subject of this paragraph (d). Notwithstanding the provisions of this paragraph
(d), no Underwriter shall be required to contribute any amount in excess of the
underwriting discount applicable to the Stock purchased by such Underwriter. 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 Underwriters'
obligations in this paragraph (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it will promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service
shall not relieve the party from whom contribution may be sought from any
obligation it may have hereunder or otherwise (except as specifically provided
in paragraph (c) of this Section 7).
(e) The Company will not, without the prior written consent of each
Underwriter, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Underwriter or any
person who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each such
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Underwriter and each controlling person thereof from all liability arising out
of such claim, action, suit or proceeding.
8. TERMINATION. This Agreement may be terminated by you at any time prior
to the Closing Date by giving written notice to the Company if after the date of
this Agreement trading in the common stock of the Company shall have been
suspended, or if there shall have occurred (i) the engagement in hostilities or
an escalation of major hostilities by the United States or the declaration of
war or a national emergency by the United States on or after the date hereof,
(ii) any outbreak of hostilities or other national or international calamity,
crisis or change in economic or political conditions in the financial markets of
the United States would, in the Underwriters' reasonable judgement, make the
offering or delivery of the Stock impracticable, (iii) suspension of trading in
securities generally or a material adverse decline in value of securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market, or limitations on prices (other than limitations on hours
or numbers of days of trading) for securities on any such exchange or system,
(iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation or rule, or the order of, or commencement of any
proceeding or investigation by, any court, legislative body, agency or other
governmental authority which in the Underwriters' reasonable opinion materially
and adversely affects or will materially or adversely affect the business or
operations of the Company, (v) declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the Underwriters' reasonable opinion has a material
adverse effect on the securities markets in the United States. If this Agreement
shall be terminated pursuant to this Section 8, there shall be no liability of
the Company to the Underwriters and no liability of the Underwriters to the
Company; provided, however, that in the event of any such termination the
Company agrees to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Company under
this Agreement, including all costs and expenses referred to in paragraph (k) of
Section 6 hereof.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company of all its obligations to be performed hereunder at
or prior to the Closing Date or any later date on which Option Stock is to be
purchased, as the case may be, and to the following further conditions:
(a) The Registration Statement shall have become effective, and no stop
order suspending the effectiveness thereof shall have been issued and no
proceedings for such an order shall be pending or threatened by the Commission.
(b) The legality and sufficiency of the sale of Stock hereunder and the
validity and form of the certificates representing the Stock, all corporate
proceedings and other legal matters incident to the foregoing, and the form of
the Registration Statement and of the Prospectus (except as to the financial
statements contained therein), shall have been approved at or prior to the
Closing Date by Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel for the Underwriters.
(c) The Registration Statement shall have become effective not later than
5:00 p.m., New York City time, on the date of this Agreement or at such later
date and time as you may approve in writing, and if the filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of
the Act, the Prospectus shall have been filed in the manner and within the time
period required by Rule 424(b) of the Act; at the Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or shall be
pending before the Commission; and any request of the Commission for inclusion
of additional information in the Registration Statement, or otherwise, shall
have been complied with to your satisfaction.
(d) You shall be satisfied that (i) as of the Effective Date, the
statements made in the Registration Statement and the Prospectus were true and
correct and neither the Registration Statement nor the Prospectus omitted to
state any material fact required to be stated therein or necessary in order to
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make the statements therein, respectively, not misleading, (ii) since the
Effective Date, no event has occurred which is required to be set forth in a
supplement or amendment to the Prospectus which has not been set forth in such a
supplement or amendment, (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the business, properties, financial
condition or results of operations of the Company, whether or not arising from
transactions in the ordinary course of business, and, since such dates, except
in the ordinary course of business, the Company has not entered into any
material transaction not referred to in the Registration Statement in the form
in which it originally become effective and the Prospectus contained therein,
(iv) the Company does not have any material contingent obligations which are not
disclosed in the Registration Statement and the Prospectus, (v) there are not
any pending or known threatened legal proceedings to which the Company is a
party or of which property of the Company or any of its subsidiaries is the
subject which are material and which are not disclosed in the Registration
Statement and the Prospectus, (vi) there are not any franchises, contracts,
leases or other documents which are required to be filed as exhibits to the
Registration Statement which have not been filed as required, (vii) the
representations and warranties of the Company herein are true and correct in all
material respects as of the Closing Date or any later date on which Option Stock
is to be purchased, as the case may be, and (viii) there has not been any
material change in the market for securities in general or in political,
financial or economic conditions from those reasonably foreseeable as to render
it impracticable in your reasonable judgment to make a public offering of the
Stock, or a material adverse change in market levels for securities in general
(or those of companies in particular) or financial or economic conditions which
render it inadvisable to proceed.
(e) You shall have received on the Closing Date and on any later date on
which Option Stock is purchased a certificate, dated the Closing Date or such
later date, as the case may be, and signed by the President and the Chief
Financial Officer of the Company, stating that the respective signers of said
certificate have carefully examined the Registration Statement in the form in
which it originally became effective and the Prospectus contained therein and
any supplements or amendments thereto, and that the statements included in
clauses (i) through (vii) of paragraph (d) of this Section 9 are true and
correct.
(f) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Xxxxxxx,
Phleger & Xxxxxxxx, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own and lease its properties and to
conduct its business as described in the Registration Statement;
(ii) The Company is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would not
have material adverse effect on the Company;
(iii) The authorized, issued and outstanding capital stock of the
Company conforms as to legal matters in all material respects to the
description thereof set forth under the captions "Capitalization" and
"Description of Capital Stock" in the Prospectus (including documents
incorporated therein by reference); all necessary and proper corporate
proceedings have been taken in order to validly authorize such authorized
Common Stock;
(iv) The issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
nonassessable, have been issued in compliance with federal and applicable
state securities laws and are not subject to any preemptive or similar
rights, other than preemptive and other rights which have been waived or
not exercised;
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(v) Based on oral representations from the Commission, the
Registration Statement has become effective under the Act and, to the best
knowledge of such counsel, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are, to the best knowledge
of such counsel, pending before or contemplated by the Commission; any
required filing of the Prospectus and any supplement thereto pursuant to
Rule 424(b) of the Act has been made;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by applicable law and except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by
general equitable principles;
(vii) The certificates evidencing the Stock to be delivered hereunder
are in due and proper form under Delaware law, and when duly countersigned
by the Company's transfer agent and registrar, and delivered to you or upon
your order against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement, the Stock represented
thereby will be duly authorized and validly issued, fully paid and
nonassessable, will not have been issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities
other than preemptive and other rights which were waived or not exercised,
and will conform in all respects to the description thereof contained in
the Prospectus;
(viii) Except as disclosed in or specifically contemplated by the
Prospectus, to such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company;
(ix) The statements under the caption "Description of Capital Stock"
in the Prospectus (including documents incorporated therein by reference)
and under Item 15 of Part II of the Registration Statement, insofar as such
statements constitute a summary of legal matters, documents or proceedings
referred to therein, accurately present the information called for with
respect to such legal matters, documents and proceedings;
(x) The Company is not in violation of its charter or by-laws and, to
such counsel's knowledge, the Company is not in material default in the
performance of any obligation, agreement, or condition contained in any
agreement or document filed or required to be filed as an exhibit to the
Registration Statement; to such counsel's knowledge, after due inquiry,
there are no contracts or documents required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the
Prospectus which are not so filed or described as required, and such
contracts and documents as are summarized in the Registration Statement or
the Prospectus are accurately summarized in all respects and such summaries
thereof do not omit any material facts;
(xi) The execution and delivery by the Company and performance by the
Company of its obligations under this Agreement, compliance by the Company
with all the provisions hereof and the consummation of the transactions
contemplated hereby will not violate any of the provisions of its charter
or bylaws, will not require any consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the Securities Act
or other securities or Blue Sky laws) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default
under any indenture or any agreement or document filed as an exhibit to the
Registration Statement;
(xii) After due inquiry, such counsel does not know of any legal,
regulatory, administrative or governmental proceeding pending or threatened
to which the Company is a party or to which any of its property is subject
which is required to be described in the Registration Statement or the
Prospectus and is not so described;
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(xiii) To such counsel's knowledge, no holder of any security of the
Company has any right to require registration of shares of Common Stock or
any other security of the Company that has not been waived in connection
with the offering, or a right (which has not been waived) of participation
or first refusal with respect to the sale of the Stock by the Company
contemplated by this Agreement;
(xiv) No facts have come to such counsel's attention which lead them
to believe that (1) the Registration Statement and the Prospectus and any
supplement or amendment thereto at the time the Registration Statement was
declared effective by the Commission (except for financial statements and
schedules as to which no opinion need be expressed) did not comply as to
form in all material respects with the Act, or (2) (except for financial
statements and schedules, as aforesaid) the Registration Statement and the
Prospectus included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, or (3) that the Prospectus, as amended or
supplemented, if applicable, (except for financial statements and
schedules, as aforesaid) contains any untrue statement of a material fact
or omits 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;
In giving such opinion with respect to the matters covered by clause (xiv)
such counsel 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 review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
(g) You shall have received opinions of [Xxxxxx Xxxxxxx], French counsel
for the Company, and Canadian counsel for the Company, dated the Closing Date,
in substantially the following form:
(i) SangStat Atlantique S.A. or SangStat Canada Ltd. (each, a
"Subsidiary"), as the case may be, has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, with full corporate power and
authority to own or lease its properties and conduct its business.
(ii) All of the outstanding capital stock of the Subsidiary has been
duly and validly authorized and issued and is owned by the Company, and
there are no outstanding rights to purchase any of the Subsidiary's capital
stock.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel for the Underwriters, with respect to the incorporation of the Company,
the sufficiency of all corporate proceedings and other legal matters relating to
this Agreement, the validity of the Stock, the Registration Statement and the
Prospectus and other related matters as you may reasonably require, and the
Company shall have furnished to such counsel such documents and shall have
exhibited to them such papers and records as they may reasonably request for the
purpose of enabling them to pass judgment upon such matters. In giving such
opinion, such counsel may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
(i) You shall have received an opinion of Flehr, Hohbach, Test, Xxxxxxxxx &
Xxxxxxx, patent counsel for the Company, dated the Closing Date, in
substantially the following form:
(i) To the best of such counsel's knowledge and without having
conducted independent research, the Company owns or possesses sufficient
licenses or other rights to use all patents, trade secrets, technology and
know-how believed by such counsel to be necessary to conduct the business
now being conducted or proposed to be conducted by the Company as described
in the Prospectus.
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(ii) The Company, its licensor or prospective licensor is the sole
assignee for each patent and patent application listed in Exhibit I hereto
(the "Patent Portfolio"). Except as noted otherwise in the Patent
Portfolio, the assignments by the named inventors have been submitted to
the United States Patent and Trademark Office (the "Patent Office") and
those assignments have been recorded in the Patent Office's title records.
However, in one or more of the patents and patent applications in the
Patent Portfolio, the United States government may hold a nonexclusive,
royalty free license as a result of providing research funding.
(iii) There is no claim or pending or threatened challenge to the
Company's ownership rights in the United States or foreign patents and
patent applications listed in the Patent Portfolio, except for the instance
noted above in which the United States government may have a nonexclusive,
royalty-free license to one or more patents and patent applications in the
Patent Portfolio, as set forth in paragraph (ii) above.
(iv) The U.S. patent applications in the Patent Portfolio (except for
patents prepared by others and identified as licensed by the Company) have
been prepared and filed in the Patent Office in a form and with
accompanying papers that are acceptable to the Patent Office for purposes
of according each such application a filing date and a serial number, and
of placing each such application in condition for eventual examination on
the merits as to patentability. For each such U.S. application an Official
Filing Receipt has been received from the Patent Office. There is no
assurance that the Patent Office will not reject the claims of the U.S.
patent applications as being unpatentable, or that any claims will be
allowed without amendment, or that the Patent Office will ultimately
conclude that any claims in such U.S. patent applications meet all
requirements for patentability, including unobviousness, novelty,
enablement, and disclosure of the best mode. As to each of such
applications, such counsel is not aware of any material defect of form in
preparation or filing. However, such counsel has not been consulted by the
Company with respect to determining whether there is any material defect of
form in preparation or filing of the patent applications, and such counsel
has not undertaken such a determination.
(v) The patent applications in the Patent Portfolio are being
diligently pursued.
(vi) As to each foreign application in the Patent Portfolio, such
applications have either (a) been submitted to patent firms in the
respective foreign countries with instructions to file the applications in
the patent offices of those countries naming the Company as the owner of
record, or (b) as to certain Patent Cooperation Treaty applications which
are in the national phase, been submitted directly to the relevant patent
office of those countries naming the Company or its licensor as the owner
of record or (c) as to certain Patent Cooperation Treaty applications which
are awaiting national filing within the permitted time period, been
properly filed with the proper Patent Cooperation Treaty receiving office.
As to each application referenced in clauses (a), (b) and (c) above,
written confirmation has been received that the application has, in fact,
been accepted for filing by such patent offices, except as otherwise noted
in the Patent Portfolio. As explained in paragraph (iv) above, there is no
assurance that the patent offices of the respective countries will not
reject the claims of the foreign patent applications as being unpatentable,
or that any claims will be allowed without amendment, nor is there any
assurance that those patent offices will ultimately conclude that the
foreign patent applications meet all requirements for patentability. As to
each such application, there is no known material defect in preparation or
filing.
(vii) Such counsel is not aware of any pending or threatened actions,
suits, proceedings, or claims of any other party challenging the validity,
enforceability or scope of any United States or foreign patent application
and/or patent in the Patent Portfolio.
(viii) Such counsel has been consulted by the Company with respect to
determining whether any United States or foreign patent held by another is
valid or will be infringed by the activities being conducted or
contemplated by the Company solely with respect to U.S. Patent Nos.
4,632,901 and 4,727,019 that claim methods and an apparatus for use in
immunoassay, and has
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performed an independent evaluation thereof. No actual or threatened claim
of infringement by the Company of a patent held by any third party has been
brought to the attention of such counsel.
(ix) Such counsel has been consulted by the Company with respect to
determining whether any United States patent held by Sandoz Ltd and any of
its affiliates relating to cyclosporine ("Sandoz' Patents") will be
infringed by the activities being conducted or contemplated by the Company
solely with respect to U.S. Patents relating to the Company's CYCLOSPORINE
product and has performed an independent evaluation thereof. Based upon
such evaluation and the scientific information provided such counsel by the
Company, such counsel does not believe that activities being conducted or
contemplated by the Company will infringe upon Sandoz' Patents. No actual
or threatened claim of infringement by the Company of any Sandoz Patent has
been brought to such counsel's attention.
(x) Such counsel has not been consulted by the Company with respect to
any proceeding or claim which has been instituted or threatened charging
that the manufacture, use, or sale of any product, device, instrument,
drug, or other material made or used or sold by or on behalf of the Company
is an infringement of any valid United States or foreign patent held by
another or a violation of any trade secret rights of another, nor is such
counsel presently aware of any such pending or threatened claim, nor has
such counsel in the course of representing the Company concluded that any
valid patent or trade secret of any third party would be infringed or
violated by such acts.
(xi) The status of each United States and foreign patent and patent
application in the Patent Portfolio is set forth in Schedule 2 hereto,
including whether now pending or issued, and if issued, the maintenance
fees that are next due, including those which have recently been paid.
(xii) The statements contained in the Registration Statement and the
Prospectus that are under the captions "Risk Factors -- Uncertainty
Regarding Patent and Proprietary Rights," "Risk Factors -- Risks Associated
with CYCLOSPORINE," "Business -- Products, Product Candidates and
Services -- CYCLOSPORINE," "Business - Pretransplant HLA Monitoring
Products and Product Candidates" and "Business -- Patents and Proprietary
Technology" and elsewhere in the Registration Statement and the Prospectus
that make reference to Proprietary Information (collectively the "Patent
Portion"), insofar as such statements constitute a summary or summaries of
the Company's patents, foreign patents, applications and foreign
applications and proprietary technology, including, without limitation, all
intellectual property, including patents licensed by the Company, are in
all material respects accurate summaries and fairly summarize in all
material respects the legal matters, documents and proceedings relating
thereto.
(xiii) Such counsel does not know of any contracts or other documents
relating to patents or proprietary information of a character required to
be filed as exhibits to the Registration Statement or the Prospectus or
required to be described in the Registration Statement or the Prospectus
that are not filed or described as required.
(xiv) Such counsel has no reason to believe that the information
contained under the captions "Risk Factors -- Uncertainty Regarding Patent
and Proprietary Rights," "Risk Factors -- Risks Associated with
CYCLOSPORINE," "Business -- Products, Product Candidates and Services
-- CYCLOSPORINE," "Business -- Pre-transplant HLA Monitoring Products and
Product Candidates" and "Business -- Patents and Proprietary Technology" at
the time the Registration Statement and Prospectus, with noted amendments,
became effective, contained any untrue statement of material fact or
omitted to state 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 that as of the date of such opinion, the
information contained in such sections of the Registration Statement and
Prospectus contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in light of the circumstances in which they were made, not misleading.
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(xv) Such opinion is limited to the items referred to above, and such
counsel is not passing upon, and does not assume responsibility for, the
accuracy, completeness, or fairness of any other statements contained in
the Registration Statement or the Prospectus.
(j) You shall have opinion of Xxxxx Xxxxx, Xxxxxx, Xxxxx & Weeds,
regulatory counsel for the Company, dated the Closing Date, in substantially the
following form:
(i) The information in the Prospectus under the captions "Risk
Factors -- No Assurance of Successful Product Development," "Risk
Factors -- Limited Manufacturing Capability," "Risk Factors -- No Assurance
of FDA Approval or European Regulatory Approval; Government Regulation,"
"Business -- Manufacturing," "Business -- Government Regulation,"
"Business -- FDA Regulation -- Approval of Therapeutic Products,"
"Business -- FDA Regulation -- Approval of Monitoring Products,"
"Business -- FDA Regulation -- Post-Approval Requirements,"
"Business -- European Regulation," "Business -- European
Regulation -- Approval of Therapeutic Products" and "Business -- European
Regulations -- Monitoring Products" (collectively, the "Regulatory
Sections"), to the extent that such sections constitute matters of law or
legal conclusions relating to health care related regulatory matters, has
been reviewed by such counsel and such information and sections are
accurate summaries and fairly summarize such matters and conclusions.
(ii) Such counsel has no reason to believe that the information
contained in the Regulatory Sections, to the extent that such information
in such sections involves matters of law or legal conclusions relating to
regulatory matters at the time the Registration Statement and Prospectus,
with noted amendments, became effective, contained any untrue statement of
material fact or omitted to state 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 that as of the
date of such opinion and to such counsel's knowledge the information
contained in such sections of the Registration Statement and Prospectus
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading.
(iii) Such opinion is limited to the items referred to above, and such
counsel is not passing upon, and does not assume responsibility for the
accuracy, completeness or fairness of any other statements contained in the
Registration Statement or the Prospectus.
(k) You shall have received from Deloitte & Touche, independent public
accountants, a letter or letters, addressed to the Underwriters and dated the
Closing Date and any later date on which Option Stock is purchased, confirming
that they are independent public accountants with respect to the Company within
the meaning of the Securities Act and the applicable published rules and
regulations thereunder and based upon the procedures described in their letter
delivered to you concurrently with the execution of this Agreement (herein
called the Original Letter), but carried out to a date not more than three
business days prior to the Closing Date or such later date on which Option Stock
is purchased (i) confirming, to the extent true, that the statements and
conclusions set forth in the Original Letter are accurate as of the Closing Date
or such later date, as the case may be, and (ii) setting forth any revisions and
additions to the statements and conclusions set forth in the Original Letter
which are necessary to reflect any changes in the facts described in the
Original Letter since the date of the Original Letter or to reflect the
availability of more recent financial statements, data or information. The
letters shall not disclose any change, or any development involving a
prospective change, in or affecting the business or properties of the Company
which, in your sole judgment, makes it impractical or inadvisable to proceed
with the public offering of the Stock or the purchase of the Option Stock as
contemplated by the Prospectus.
(l) The Company shall have delivered to you the agreements specified in
Section 9(p) hereof.
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(m) The Company shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company at or prior to the Closing Date.
(n) You shall have been furnished evidence in usual written or telegraphic
form from the appropriate authorities of the several jurisdictions, or other
evidence satisfactory to you, of the qualification referred to in paragraph (g)
of Section 6 hereof.
(o) Prior to the Closing Date, the Stock to be issued and sold by the
Company shall have been duly authorized for listing by the Nasdaq National
Market upon official notice of issuance.
(p) On or prior to the Closing Date, you shall have received from all
directors, officers and specified beneficial holders of more than 5% of the
outstanding Common Stock stockholders agreements, in form previously supplied to
the Company by Xxxxxxxxx & Xxxxx LLC, stating that without the prior written
consent of Xxxxxxxxx & Xxxxx LLC on behalf of the Underwriters, such person or
entity will not, for a period of 90 days following the effective date of the
Registration Statement directly or indirectly sell, offer, contract to sell,
make any short sale, pledge, or otherwise transfer or dispose of any shares of
Common Stock or any securities convertible into or exchangeable or exercisable
for or any rights to purchase or acquire Common Stock, whether any such
transaction described above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise.
All the agreements, opinions, certificates and letters mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, counsel for the Underwriters, shall be satisfied that they comply
in form and scope.
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company; provided,
however, that (i) in the event of such termination, the Company agrees to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company under this Agreement,
including all costs and expenses referred to in paragraphs (k) and (l) of
Section 6 hereof, and (ii) if this Agreement is terminated by you because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein, to fulfill any of the conditions herein, or to comply with any
provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the transactions
contemplated hereby.
10. CONDITIONS OF THE OBLIGATION OF THE COMPANY. The obligation of the
Company to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
In case either of the conditions specified in this Section 10 shall not be
fulfilled, this Agreement may be terminated by the Company by giving notice to
you. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company; provided,
however, that in the event of any such termination the Company agrees to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company under this Agreement,
including all costs and expenses referred to in paragraphs (k) and (l) of
Section 6 hereof.
11. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to its other obligations
under Section 7 of this Agreement, the Company hereby agrees to reimburse on a
quarterly basis the Underwriters for all reasonable legal and other expenses
incurred in connection with investigating or defending any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or
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omission, or any alleged statement or omission, described in paragraph (a) of
Section 7 of this Agreement, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations under
this Section 11 and the possibility that such payments might later be held to be
improper; provided, however, that (i) to the extent any such payment is
ultimately held to be improper, the persons receiving such payments shall
promptly refund them and (ii) such persons shall provide to the Company, upon
request, reasonable assurances of their ability to effect any refund, when and
if due.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of the Company and the several Underwriters and, with respect to the
provisions of Section 7 hereof, the several parties (in addition to the Company
and the several Underwriters) indemnified under the provisions of said Section
7, and their respective personal representatives, successors and assigns.
Nothing in this Agreement is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successors and assigns" as herein used shall not include any purchaser, as such
purchaser, of any of the Stock from any of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to Xxxxxxxxx & Xxxxx LLC, Xxx Xxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; and if to the Company, shall be mailed,
telegraphed or delivered to it at its office, 0000 Xxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx, Attention: Philippe Pouletty, M.D. All notices given by telegraph
shall be promptly confirmed by letter.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or their respective directors or officers, and (c) delivery and
payment for the Stock under this Agreement; provided, however, that if this
Agreement is terminated prior to the Closing Date, the provisions of paragraph
(m) of Section 6 hereof shall be of no further force or effect.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California.
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By:
------------------------------------
Xxxxx X. Xxxxxxx
Vice President and Chief Financial
Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXXXX & XXXXX LLC
XXXXXXXXXX SECURITIES
XXXXXXXXX XXXXXXXX & COMPANY LLC
By Xxxxxxxxx & Xxxxx LLC
By:
---------------------------------------
Xxxxxxx X. Xxxxxx
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
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SCHEDULE I
UNDERWRITERS
NUMBER
OF SHARES
TO BE
UNDERWRITERS PURCHASED
---------------------------------------------------------------------------------- ---------
Xxxxxxxxx & Xxxxx LLC.............................................................
Xxxxxxxxxx Securities.............................................................
Xxxxxxxxx Xxxxxxxx & Company LLC..................................................
---------
Total...................................................................
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