PHARMION CORPORATION Common Stock UNDERWRITING AGREEMENT dated May 10, 2007 Banc of America Securities LLC Cowen and Company, LLC Pacific Growth Equities, LLC Friedman, Billings, Ramsey & Co., Inc. HSBC Securities (USA) Inc.
Exhibit 1.1
PHARMION CORPORATION
Common Stock
dated May 10, 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxx and Company, LLC
Pacific Growth Equities, LLC
Friedman, Billings, Xxxxxx & Co., Inc.
HSBC Securities (USA) Inc.
Xxxxx and Company, LLC
Pacific Growth Equities, LLC
Friedman, Billings, Xxxxxx & Co., Inc.
HSBC Securities (USA) Inc.
May 10, 0000
XXXX XX XXXXXXX SECURITIES LLC
As Representative of the several Underwriters
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
As Representative of the several Underwriters
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Introductory. Pharmion Corporation, a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule A hereto (the “Underwriters”) an aggregate
of 4,000,000 shares (the “Firm Shares”) of its Common Stock, par value $.001 per share (the “Common
Stock”). In addition, the Company has granted to the Underwriters an option to purchase up to an
additional 600,000 shares (the “Optional Shares”) of Common Stock, as provided in Section 2. The
Firm Shares and, if and to the extent such option is exercised, the Optional Shares are
collectively called the “Shares”. Banc of America Securities LLC (“BAS”), has agreed to act as
representative of the several Underwriters (in such capacity, the “Representative”) in connection
with the offering and sale of the Shares.
The Company hereby confirms its agreements with the Underwriters as follows:
The Company hereby represents and warrants to each Underwriter as follows:
(a) The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-142567), which contains a base
prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of
the Shares. Such registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at each time of effectiveness under the Securities Act of 1933 and the rules
and regulations promulgated thereunder (collectively, the “Securities Act”), including any required
information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under
the Securities Act, is called the “Registration Statement.” Any preliminary prospectus supplement
to the Base Prospectus that describes the Shares and the offering thereof and is used prior to
filing of the Final Prospectus is called, together with the Base Prospectus, a “preliminary
prospectus.” The term “Prospectus” shall mean the final prospectus relating to the Shares that is
first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this
Agreement is executed and delivered by the parties hereto (the “Execution Time”). Any reference
herein to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act; any reference to any amendment or supplement to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any documents filed by the
Company after the date of such preliminary prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Exchange Act”), and incorporated by
reference in such preliminary prospectus or Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by reference in the Registration
Statement.
Each preliminary prospectus and the Prospectus when filed complied in all material respects
with the Securities Act. Each of the Registration Statement and any post-effective amendment
thereto, at each time of effectiveness and at the date hereof, complied and will comply in all
material respects with the Securities Act and did not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. The Prospectus (including any Prospectus
wrapper), as amended or supplemented, as of its date, at the time of any filing pursuant to Rule
424(b) under the Securities Act, at the Closing Date (as defined herein) and at any Subsequent
Closing Date (as defined herein), will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations and warranties set
forth in the two immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement or any post-effective amendment thereto, any preliminary prospectus or
the Prospectus, or any amendments or supplements thereto, based upon and in conformity with written
information furnished to the Company by any Underwriter through BAS expressly for use therein, it
being understood and agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 8 hereof.
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prospectuses as defined in Rule 433 under the Securities Act (each, an “Issuer Free Writing
Prospectus”), if any, identified in Schedule B hereto, (iii) any other free writing prospectus that
the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package and (iv) a schedule indicating the number of Shares being sold and the price at which the
Shares will be sold to the public. As of 6:00 p.m. (New York time) on the date of execution and
delivery of this Agreement (the “Applicable Time”), the Disclosure Package did 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. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information furnished to the Company
by any Underwriter through BAS expressly for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information described as such in
Section 8 hereof.
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promptly notified or will promptly notify BAS and has promptly amended or supplemented or will
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict. The foregoing two sentences do not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through BAS expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 8 hereof.
(j) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
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agreement outside the ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for dividends paid to the
Company or other subsidiaries, any of its subsidiaries on any class of capital stock or repurchase
or redemption by the Company or any of its subsidiaries of any class of capital stock.
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or indirectly, any corporation, association or other entity other than its subsidiaries or as
disclosed in the Disclosure Package.
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as have been obtained or made by the Company and are in full force and effect and except as
may be required by applicable state securities or blue sky laws and from the NASD, Inc. (the
“NASD”) or, with respect to filing the Prospectus with the Commission in accordance with Rule
424(b) under the Securities Act.
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businesses. The Company has no reason to believe that it or any subsidiary will not be able
(i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not have a Material Adverse Effect.
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constituted and authorized committee thereof) and any required stockholder approval by the
necessary number of votes or written consents, (iii) each such grant was made in accordance in all
material respects with the terms of the Company Stock Plans, the Exchange Act and all other
applicable laws and regulatory rules or requirements, including the rules of the Nasdaq Global
Market and any other exchange on which Company securities are traded, (iv) the per share exercise
price of each Stock Option was equal to or greater than the fair market value of a share of Common
Stock on the applicable Grant Date and (v) each such grant was properly accounted for in all
material respects in accordance with GAAP in the financial statements (including the related notes)
of the Company and disclosed in the Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has no policy or practice of granting,
Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or
other public announcement of material information regarding the Company or its subsidiaries or
their results of operations or prospects.
9
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder.
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the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval. There are no
costs or liabilities associated with Environmental Laws which would, individually or in the
aggregate, have a Material Adverse Effect.
SECTION 2. Purchase, Sale and Delivery of the Shares.
(b) The Closing Date. Delivery of certificates for the Firm Shares to be purchased by the
Underwriters and payment therefor shall be made at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and
Xxxx LLP at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to by
the Company and BAS) at 9:00 a.m. New York time, on May 16, 2007, or such other time and date not
later than 1:30 p.m. New York time, on May 31, 2007, as BAS shall designate by notice to the
Company (the time and date of such closing are called the “Closing Date”).
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than, the Closing Date; and in such case the term “Closing Date” shall refer to the time and
date of delivery of certificates for the Firm Shares and the Optional Shares). Each time and date
of delivery, if subsequent to the Closing Date, is called a “Subsequent Closing Date” and shall be
determined by BAS and shall not be earlier than three nor later than five full business days after
delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Optional Shares (subject to such
adjustments to eliminate fractional shares as BAS may determine) that bears the same proportion to
the total number of Optional Shares to be purchased as the number of Firm Shares set forth on
Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares.
It is understood that the Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Optional Shares the Underwriters have agreed to
purchase. BAS, individually and not as the Representative of the Underwriters, may (but shall not
be obligated to) make payment for any Shares to be purchased by any Underwriter whose funds shall
not have been received by the Representative by the Closing Date or any Subsequent Closing Date, as
the case may be, for the account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement.
(g) Delivery of Prospectus to the Underwriters. Not later than 3:00 p.m. on the second
business day in New York City following the date of this Agreement, the Company shall deliver or
cause to be delivered, copies of the Prospectus in such quantities and at such places as BAS shall
request.
SECTION 3. Covenants of the Company.
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Company shall furnish to the Representative for review a copy of each such proposed amendment
or supplement, and the Company shall not file or use any such proposed amendment or supplement to
which the Representative reasonably objects.
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registration statement containing the Prospectus, in order to comply with law, including in
connection with the delivery of the Prospectus, the Company agrees to (i) notify BAS of any such
event or condition and (ii) promptly prepare (subject to Section 3(a) and 3(e) hereof), file with
the Commission (and use its reasonable best efforts to have any amendment to the Registration
Statement or any new registration statement to be declared effective) and furnish at its own
expense to the Underwriters and to dealers, amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary
in order to make the statements in the Disclosure Package or the Prospectus as so amended or
supplemented, in the light of the circumstances under which they were made or then prevailing, as
the case may be, not misleading or so that the Registration Statement, the Disclosure Package or
the Prospectus, as amended or supplemented, will comply with law.
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subject to taxation as a foreign corporation. The Company will advise the Representative
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Shares for offering, sale or trading in any 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, the Company shall use its reasonable best efforts to
obtain the withdrawal thereof at the earliest possible moment.
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material news or a material event relating to the Company occurs, or (y) prior to the
expiration of the 90-day restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 90-day period, the restrictions
imposed in this clause shall continue to apply until the expiration of the 18-day period beginning
on the date of the issuance of the earnings release or the occurrence of the material news or
material event. The Company will provide the Representatives and any co-managers and each
individual subject to the restricted period pursuant to the lockup letters described in Section
5(l) with prior notice of any such announcement that gives rise to an extension of the restricted
period.
BAS, on behalf of the several Underwriters, may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Shares (including all printing and engraving costs), (ii) all fees and
expenses of the registrar and transfer agent of the Common Stock, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the Shares to the
Underwriters, (iv) all fees and expenses of the Company’s counsel, independent public or certified
public accountants and other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, each preliminary prospectus and the Prospectus, and all amendments and
supplements thereto, and this Agreement, (vi) all filing fees, reasonable attorneys’ fees and
expenses incurred by the Company or the Underwriters in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Shares
for offer and sale under the state securities or blue sky laws or the provincial securities laws of
Canada, and, if requested by the Representative, preparing and printing a “Blue Sky Survey” or
memorandum, and any supplements thereto, advising the Underwriters of such qualifications,
registrations and exemptions, (vii) the filing fees incident to, and the reasonable fees and
expenses of counsel for the Underwriters in connection with, the NASD’s review and approval of the
Underwriters’ participation in the offering and distribution of the Shares, (viii) the fees and
expenses associated with quotation of the Shares on the Nasdaq Global Market, Inc., (ix) all
transportation and other expenses incurred in connection with
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presentations to prospective purchasers of the Shares, except that the Company and the
Underwriters will each pay 50% of the cost of privately chartered airplanes used for such purposes
and (x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration
Statement. Except as provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Shares as provided herein on the Closing Date and, with
respect to the Optional Shares, any Subsequent Closing Date, shall be subject to the accuracy of
the representations and warranties on the part of the Company set forth in Section 1 hereof as of
the date hereof and as of the Closing Date as though then made and, with respect to the Optional
Shares, as of any Subsequent Closing Date as though then made, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the timely performance
by the Company of its covenants and other obligations hereunder, and to each of the following
additional conditions:
(i) the Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the manner and within the
time period required by Rule 424(b) under the Securities Act; or the Company shall have
filed a post-effective amendment to the Registration Statement containing the information
required by such Rule 430B under the Securities Act, and such post-effective amendment shall
have become effective;
(ii) all material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the applicable time periods
prescribed for such filings under such Rule 433 under the Securities Act; and
(iii) no stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the Commission, and
the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of
the Securities Act objecting to use of the automatic shelf registration statement form.
(c) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date and, with respect to the Optional Shares, any
Subsequent Closing Date:
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(i) in the judgment of BAS there shall not have occurred any Material Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraphs (a) and (h) of this Section 5 which is, in the sole
judgment of BAS, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Shares as contemplated by the Registration Statement
and the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(g) Officers’ Certificate. On the Closing Date and any Subsequent Closing Date, the
Representative shall have received a written certificate executed by two executive officers of the
Company, on behalf of the Company and not in their individual capacity, dated as of such Closing
Date or Subsequent Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and any amendment or supplement thereto, any
Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement, to the
effect set forth in subsections (b) and (c)(iii) of this Section 5, and further to the effect that:
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(i) for the period from and after the date of this Agreement and prior to such Closing
Date or Subsequent Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations and warranties of the Company set forth in Section 1 of this
Agreement are true and correct on and as of such Closing Date or Subsequent Closing Date
with the same force and effect as though expressly made on and as of such Closing Date or
Subsequent Closing Date; and
(iii) the Company has complied with all the covenants and agreements hereunder and
satisfied all the conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date or Subsequent Closing Date.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by BAS by notice to the Company at any time on or prior
to the Closing Date and, with respect to the Optional Shares, at any time prior to the applicable
Subsequent Closing Date, which termination shall be without liability on the part of any party to
any other party, except that Section 4, Section 6, Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated pursuant
to Section 5, Section 9 or Section 10(i), or if the sale to the Underwriters of the Shares on the
Closing Date or on any Subsequent Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company to perform in all material respects any agreement herein or
to comply with any provision hereof, the Company agrees to reimburse the Representative and the
other Underwriters (or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses
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that shall have been reasonably incurred by the Representative and the Underwriters in
connection with the proposed purchase and the offering and sale of the Shares, including but not
limited to fees and disbursements of counsel, travel expenses, postage, facsimile and telephone
charges.
SECTION 7. Indemnification.
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statements therein not misleading, in each case to the extent, and only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with
written information furnished to the Company by BAS expressly for use therein; and to reimburse the
Company, or any such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The Company hereby acknowledges that the only information
that the Underwriters have furnished to the Company expressly for use in the Registration
Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) are the statements set forth (A) as the last two paragraphs on the
inside front cover page of the Prospectus and (B) the following sections under the caption
“Underwriting” in the Prospectus: the table in the first paragraph, the sentences related to
concessions, discounts and reallowances, the paragraphs related to stabilization, syndicate
covering transactions and penalty bids, the representations relating to offerings in the European
Union, including the United Kingdom. The indemnity agreement set forth in this Section 8(b) shall
be in addition to any liabilities that each Underwriter may otherwise have.
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indemnifying party shall not be liable for the reasonable fees and expenses of more than one
separate counsel (other than local counsel), reasonably approved by the indemnifying party (or by
BAS in the case of Section 8(b)), representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
SECTION 8. Contribution. If the indemnification provided for in Section 8 is for any reason
unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the Shares pursuant to this
Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, in connection
with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Shares pursuant to this
Agreement (before deducting expenses) received by the Company, and the total underwriting discount
received by the Underwriters, in each case as set forth on the front cover page of the Prospectus
bear to the aggregate initial public offering price of the Shares as set forth
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on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact or any such inaccurate or alleged inaccurate representation or warranty relates to information
supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Shares underwritten by it and distributed to the public. 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 to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
SECTION 9. Default of One or More of the Several Underwriters. If, on the Closing Date or a
Subsequent Closing Date, as the case may be, any one or more of the several Underwriters shall fail
or refuse to purchase Shares that it or they have agreed to purchase hereunder on such date, and
the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase does not exceed 10% of the aggregate number of the Shares to be purchased on
such date, the other Underwriters shall be obligated, severally, in the proportions that the number
of Firm Shares set forth opposite their respective names on Schedule A bears to the aggregate
number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as may be specified by BAS with the consent of the non-defaulting
Underwriters, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If, on the Closing Date or a Subsequent Closing Date,
as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares and
the aggregate number of Shares with respect to which such default occurs exceeds 10% of the
aggregate number of Shares to be
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purchased on such date, and arrangements satisfactory to BAS and the Company for the purchase
of such Shares are not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of Section 4, Section
6, Section 8 and Section 9 shall at all times be effective and shall survive such termination. In
any such case either BAS or the Company shall have the right to postpone the Closing Date or a
Subsequent Closing Date, as the case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Registration Statement and the Prospectus or any other
documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
SECTION 10. Termination of this Agreement. Prior to the Closing Date and, with respect to
the Optional Shares, any Subsequent Closing Date, this Agreement may be terminated by BAS by notice
given to the Company if at any time (i) trading or quotation in any of the Company’s securities
shall have been suspended or limited by the Commission or by the Nasdaq Global Market, Inc., (ii)
trading in securities generally on the New York Stock Exchange or the Nasdaq Global Market, Inc.
shall have been suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges by the Commission or the NASD; (iii) a general banking
moratorium shall have been declared by federal or New York authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States has
occurred; or (iv) there shall have occurred any outbreak or escalation of national or international
hostilities or declaration of a national emergency or war by the United States or any crisis or
calamity, or any change in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of BAS is material and adverse and
makes it impracticable or inadvisable to market the Shares in the manner and on the terms described
in the Prospectus or to enforce contracts for the sale of securities. Any termination pursuant to
this Section 11 shall be without liability on the part of (a) the Company to any Underwriter,
except that the Company shall be obligated to reimburse the expenses of the Representative and the
Underwriters pursuant to Sections 4 and 6 hereof or (b) any Underwriter to the Company.
SECTION 11. No Advisory or Fiduciary Responsibility. The Company acknowledges and agrees
that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and
the process leading to such transaction each Underwriter is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary of the Company or its respective
affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has
assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with
respect to any of the transactions contemplated hereby or the process leading thereto
24
(irrespective of whether such Underwriter has advised or is currently advising the Company on
other matters) and no Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and that the several Underwriters have no
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters, or any of them, with respect to the subject
matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any
claims that the Company may have against the several Underwriters with respect to any breach or
alleged breach of agency or fiduciary duty.
SECTION 12. Research Analyst Independence. The Company acknowledge that the Underwriters’
research analysts and research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal policies, and that
such Underwriters’ research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company and/or the offering
that differ from the views of their respective investment banking divisions. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any conflict of interest that may arise from the fact that
the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advise communicated to the Company by such
Underwriters’ investment banking divisions. The Company acknowledge that each of the Underwriters
is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or
short positions in debt or equity securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
SECTION 13. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company, of its officers and of
the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative
and in full force and effect, regardless of any (A) investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or
any person controlling the Underwriter, the Company, the officers or employees of the Company, or
any person controlling the Company, as the case may be or (B) acceptance of the Shares and payment
for them hereunder and (ii) will survive delivery of and payment for the Shares sold hereunder and
any termination of this Agreement.
SECTION 14. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
25
If to BAS:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Syndicate Department
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Syndicate Department
with a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: ECM Legal
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: ECM Legal
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Company:
Pharmion Corporation
0000 00xx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
0000 00xx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
SECTION 15. Successors and Assigns. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10
hereof, and to the benefit of (i) the Company, its directors, any person who controls the Company
within the meaning of the Securities Act or the Exchange Act and any officer of the Company who
signs the Registration Statement, (ii) the Underwriters, the officers, directors,
26
employees and agents of the Underwriters, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act and (iii) the respective
successors and assigns of any of the above, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this Agreement. The term
“successors and assigns” shall not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
SECTION 16. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 18. This Agreement constitutes the entire agreement of the parties to this Agreement
and supersedes all prior written or oral and all contemporaneous oral agreements, understandings
and negotiations with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition is meant to
benefit. The Section headings herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 8, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 7 and 8 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
27
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, PHARMION CORPORATION |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | President and Chief Executive Officer | |||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representative as
of the date first above written.
BANC OF AMERICA SECURITIES LLC Acting as Representative of the several Underwriters named in the attached Schedule A. |
||||
By | Banc of America Securities LLC | |||
By: | /s/ Xxx Xxxxxxxx | |||
Managing Director | ||||
SCHEDULE A
Number of Firm Shares to be | ||||
Underwriters | Purchased | |||
Banc of America Securities LLC |
1,800,000 | |||
Xxxxx and Company, LLC |
880,000 | |||
Pacific Growth Equities, LLC |
680,000 | |||
Friedman, Billings, Xxxxxx & Co., Inc. |
320,000 | |||
HSBC Securities (USA) Inc. |
320,000 | |||
Total |
4,000,000 | |||