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EXHIBIT 1.1
[____] SHARES
INTROGEN THERAPEUTICS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
________ __, 2000
XX XXXXX SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
PAINEWEBBER INCORPORATED
As Representatives of the several Underwriters named in Schedule A
c/o XX Xxxxx
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Introgen Therapeutics, Inc., a Delaware corporation
(the "COMPANY"), proposes to issue and sell, pursuant to the terms of this
Agreement, to the several Underwriters (as defined below) ____________ shares of
Common Stock, $0.001 par value (the "FIRM STOCK") of the Company. XX Xxxxx
Securities Corporation ("XX XXXXX"), Prudential Securities Incorporated and
PaineWebber Incorporated shall act as representatives (the "REPRESENTATIVES") of
the several Underwriters.
The Company also proposes to issue and sell to the several Underwriters
up to an additional ____________ shares of Common Stock (the "OPTIONAL STOCK"),
if and to the extent that the Representatives shall have determined to exercise
on behalf of the Underwriters the right to purchase such shares of common stock
upon the terms and conditions set forth in Section 3 hereof. The Firm Stock and
the Optional Stock are hereinafter collectively referred to as the "COMMON
STOCK".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Common Stock. The
registration statement on Form S-1 (File No. 333-30582) as amended at the time
it becomes effective, including the information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the
rules and regulations (the "RULES AND REGULATIONS") of the Securities and
Exchange Commission (the "COMMISSION") thereunder, is hereinafter referred to as
the REGISTRATION STATEMENT. The term "Registration Statement" as used in this
Agreement shall also include any registration statement relating to the Common
Stock that is filed and declared
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effective pursuant to Rule 462(b) under the Securities Act. The final prospectus
in the respective form first used to confirm sales of the Common Stock is
hereinafter referred to as the "PROSPECTUS". The term "Prospectus" as used in
this Agreement means the prospectus in the form included in the Registration
Statement, or, if prospectuses that meet the requirements of Section 10(a) of
the Securities Act are delivered pursuant to Rule 434 under the Securities Act,
then (i) the term "Prospectus" as used in this Agreement means the "prospectus
subject to completion" (as such term is defined in Rule 434(g) under the
Securities Act) as supplemented by (a) the addition of Rule 430A information or
other information contained in the form of prospectus delivered pursuant to Rule
434(b)(2) under the Securities Act or (b) the information contained in the term
sheets described in Rule 434(b)(3) under the Securities Act, and (ii) the date
of such prospectuses shall be deemed to be the date of the term sheets. The term
"PRE-EFFECTIVE PROSPECTUS" as used in this Agreement means the prospectus
subject to completion in the form included in the Registration Statement at the
time of the initial filing of the Registration Statement with the Commission,
and as such prospectus shall have been amended from time to time prior to the
date of the Prospectus.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) The Registration Statement with respect to the Common Stock,
including any Pre-effective Prospectus, copies of which have heretofore been
delivered to the Representatives, has been carefully prepared by the Company in
conformity with the requirements of the Securities Act and has been filed with
the Commission under the Securities Act.
(b) The Commission has not issued any order preventing or suspending
the use of any Pre-effective Prospectus, and no proceedings for such purpose are
pending before or, to the Company's knowledge, threatened by the Commission.
(c) At its date of issue, each Pre-effective Prospectus conformed in
all material respects with the requirements of the Securities Act and did not
include any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and, when
the Registration Statement becomes effective and at each of the Closing Dates
(as hereinafter defined), the Registration Statement and the Prospectus and any
amendments or supplements thereto contained and will contain all material
statements and information required to be included therein by the Securities Act
and conformed and will conform in all material respects to the requirements of
the Securities Act and neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, included or will include 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, in light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing representations, warranties and agreements shall not apply to
information contained in or omitted from any Pre-effective Prospectus or the
Registration Statement or the Prospectus or any such amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company by any Underwriter or on behalf of any Underwriter through its
counsel, directly or through the Representatives, specifically for use in the
preparation thereof;
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there is no license, lease, contract, agreement or document required by the
Securities Act or the Rules and Regulations to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed therein as required; and all
descriptions of any such licenses, leases, contracts, agreements or documents
contained in the Registration Statement are accurate and complete descriptions
of such documents in all material respects.
(d) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus, and except as set forth or
contemplated therein, neither the Company nor any of its subsidiaries has
sustained material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, nor incurred any
material liabilities or obligations, direct or contingent, nor entered into any
material transactions not in the ordinary course of business, and there has not
been any material adverse change in or affecting the condition (financial or
otherwise), properties, earnings, business, management, prospects, net worth or
results of operations of the Company and its subsidiaries considered as a whole,
or any development involving a material adverse change (a "MATERIAL ADVERSE
CHANGE"), or any change in the capital stock, short-term or long-term debt of
the Company and its subsidiaries considered as a whole other than options
granted pursuant to the Company's 1995 Stock Plan or 2000 Stock Option Plan,
shares issued upon exercise of options granted pursuant to the 1995 Stock Plan
or 2000 Stock Option Plan and shares issued upon exercise of outstanding
warrants.
(e) The financial statements, together with the related notes and
schedules, set forth in the Prospectus and elsewhere in the Registration
Statement fairly present, on the basis stated in the Registration Statement, the
financial position and the results of operations and changes in financial
position of the Company and its consolidated subsidiaries at the respective
dates or for the respective periods therein specified. Such statements and
related notes and schedules have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis except as may be
set forth in the Prospectus. The selected financial and statistical data set
forth in the Prospectus fairly present, on the basis stated in the Registration
Statement, the information set forth therein.
(f) Xxxxxx Xxxxxxxx LLP, who have expressed their opinions on the
audited financial statements and related schedules included in the Registration
Statement and the Prospectus, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(g) The Company and each of its subsidiaries have been duly organized
and are validly existing and in good standing as corporations under the laws of
their respective jurisdictions of organization, with power and authority
(corporate and other) to own, lease and operate their properties and to conduct
their business as described in the Prospectus; and the Company and each of such
subsidiaries are duly qualified to do business and in good standing as foreign
corporations in all other jurisdictions where their ownership or leasing of
properties or the conduct of their business requires such qualification except
where the failure so to qualify or to be in good standing would not cause a
Material Adverse Change. The Company and each of its subsidiaries possess all
necessary consents, approvals, authorizations, orders, registrations,
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qualifications, licenses and permits of and from all public regulatory or
governmental agencies and bodies, all of which are valid and in full force and
effect, to conduct their business as now being conducted and as described in the
Registration Statement and the Prospectus, except where the failure to so
possess would not cause a Material Adverse Change, and no such consent,
approval, authorization, order, registration, qualification, license or permit
contains a materially burdensome restriction not adequately disclosed in the
Registration Statement and the Prospectus. The Company owns or controls,
directly or indirectly, only the following corporations, associations or other
entities: Gendux, Inc., Gendux AB and TMX Realty Corporation.
(h) The Company's authorized and outstanding capital stock is on the
date hereof, and will be on the Closing Date, as set forth under the heading
"Capitalization" in the Prospectus; the outstanding shares of common stock of
the Company conform in all material respects to the description thereof in the
Prospectus and have been duly authorized and validly issued and are fully paid
and nonassessable and have been issued in compliance with all federal and state
securities laws and were not issued in violation of or subject to any preemptive
rights or similar rights to subscribe for or purchase securities. Except as
disclosed in and or contemplated by the Prospectus and the financial statements
of the Company and related notes thereto included in the Prospectus, the Company
does not have outstanding any options or warrants 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 its capital stock or any such options, rights, convertible securities
or obligations, except for options granted subsequent to the date of information
provided in the Prospectus pursuant to the Company's employee and stock option
plans as disclosed in the Prospectus. The description of the Company's stock
option and other stock plans or arrangements, and the options or other rights
granted or exercised thereunder, as set forth in the Prospectus, accurately and
fairly presents the information required to be shown with respect to such plans,
arrangements, options and rights. All outstanding shares of capital stock of
each subsidiary have been duly authorized and validly issued, and are fully paid
and nonassessable and are owned by the Company, directly or indirectly through
one or more wholly owned subsidiaries, free and clear of any liens,
encumbrances, equities or claims.
(i) The Common Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and validly
issued, fully paid and nonassessable and free of any preemptive or similar
rights and will conform in all material respects to the description thereof in
the Prospectus.
(j) Except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
subject, which, if determined adversely to the Company or any such subsidiary,
might individually or in the aggregate, reasonably be expected to (i) prevent or
adversely affect the transactions contemplated by this Agreement, (ii) suspend
the effectiveness of the Registration Statement, (iii) prevent or suspend the
use of the Pre-effective Prospectus in any jurisdiction or (iv) result in a
Material Adverse Change and there is no valid basis for any such legal or
governmental proceeding; and to the Company's knowledge, no such proceedings are
threatened or contemplated against the Company or any
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subsidiary by governmental authorities or others. The Company is not a party nor
subject to the provisions of any material injunction, judgment, decree or order
of any court, regulatory body or other governmental agency or body. The
description of the Company's litigation under the heading "Legal Matters" in the
Prospectus is true and correct and complies with the Rules and Regulations.
(k) The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions herein contemplated (i) will
not result in any violation of the provisions of the charter, bylaws or other
organizational documents of the Company or its subsidiaries, or any law, order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or its subsidiaries or any of their properties or
assets and (ii) will not conflict with or result in a breach or violation of any
of the terms or provisions of or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or any of
its properties is or may be bound or result in the creation of a lien (except
for such violation of any such law, order, rule or regulation or such conflict,
breach, violation, default or lien that would not cause a Material Adverse
Change).
(l) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby, except such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or under the Securities Act
or the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") or the
securities or "Blue Sky" laws of any jurisdiction in connection with the
purchase and distribution of the Common Stock by the Underwriters.
(m) The Company has the full corporate power and authority to enter
into this Agreement and to perform its obligations hereunder (including to
issue, sell and deliver the Common Stock), and this Agreement has been duly and
validly authorized, executed and delivered by the Company and is a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, conservatorship,
readjustment of debt, moratorium or other similar laws affecting the rights of
creditors or by general principles of equity or to the extent that rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws or the public policy underlying such laws.
(n) Neither the Company nor any of its subsidiaries is in violation in
any material respect of any applicable federal, state, local and foreign laws,
rules and regulations or any court or governmental agency or body, including,
without limitation, the United States Food and Drug Administration; to the
knowledge of the Company, otherwise than as set forth in the Registration
Statement and the Prospectus, no prospective change in any of such federal or
state laws, rules or regulations has been adopted which, when made effective,
would cause a Material Adverse Change.
(o) The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income, payroll, franchise and other tax returns due on
or before the date hereof and have paid all taxes shown as due thereon or with
respect to any of their properties, in each
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case as required to be paid on or before the date hereof, and there is no tax
deficiency that has been, or, to the knowledge of the Company, is likely to be,
asserted against the Company or any of its subsidiaries or any of their
respective properties or assets that would cause a Material Adverse Change.
(p) No person or entity has the right to require registration of shares
of Common Stock or other securities of the Company because of the filing or
effectiveness of the Registration Statement or otherwise, except for persons and
entities who have expressly waived such right or who have been given proper
notice and have failed to exercise such right within the time or times required
under the terms and conditions of such right.
(q) Neither the Company nor, to the Company's knowledge, any of its
officers, directors or affiliates, has taken or will take, directly or
indirectly, any action designed or intended to stabilize or manipulate the price
of any security of the Company, or which caused or resulted in, or which might
in the future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
(r) The Company has provided the Representatives with all financial
statements since 1995 to the date hereof that are available to the officers of
the Company, including financial statements for the months of July and August of
2000.
(s) Except as described in the Prospectus, the Company and its
subsidiaries own or possess the right to use all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in the
Prospectus as being owned by them or necessary for the conduct of their
respective businesses, and the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the Company and its
subsidiaries with respect to the foregoing. Except as described in the
Prospectus, the Company's business as now conducted and as currently proposed to
be conducted does not and will not infringe or conflict with in any material
respect patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses or other intellectual property or franchise right of any
person. Except as described in the Prospectus, no claim has been made against
the Company alleging the infringement by the Company of any patent, trademark,
service xxxx, trade name, copyright, trade secret, license in or other
intellectual property right or franchise right of any person.
(t) Neither the Company nor any of its subsidiaries nor any other party
to any contract required by Item 601(b)(10) of Regulation S-K under the
Securities Act to be filed as exhibits to the Registration Statement is in
default under or in material breach of any such obligations under any such
contract. Neither the Company nor any of its subsidiaries has received any
notice of such default or breach.
(u) The Company is not involved in any labor dispute nor, to the
Company's best knowledge, is any such dispute threatened. The Company is not
aware that (i) any executive, key employee or significant group of employees of
the Company or any of its subsidiaries plans to terminate employment with the
Company or any such subsidiary or (ii) any such executive or key employee is
subject to any noncompete, nondisclosure, confidentiality, employment,
consulting or similar agreement that would be violated by the present or
currently
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proposed business activities of the Company and its subsidiaries. Neither the
Company nor any of its subsidiaries has or expects to have any material
liability for any prohibited transaction or funding deficiency or any complete
or partial withdrawal liability with respect to any pension, profit sharing or
other plan which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company or any of its subsidiaries
makes or ever has made a contribution and in which any employee of the Company
or any of its subsidiaries is or has ever been a participant. With respect to
such plans, the Company and each of its subsidiaries is in compliance in all
material respects with all applicable provisions of ERISA.
(v) The Company has obtained the written agreement described in Section
8(j) of this Agreement from each of its officers, directors and holders of
Common Stock listed on Schedule B hereto.
(w) The Company and its subsidiaries have, and the Company and its
subsidiaries as of the Closing Dates will have, good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as would not materially
affect the value of such property and would not materially interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries and would not be reasonably expected to cause a Material Adverse
Change; and any real property and buildings held under lease by the Company and
its subsidiaries are, or will be as of the Closing Dates, held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries, and
would not be reasonably expected to cause a Material Adverse Change, in each
case except as described in or contemplated by the Prospectus.
(x) As of the date hereof, the Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), except where any non-compliance would not
be reasonably expected to cause a Material Adverse Change, (ii) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where any non-compliance would not be reasonably expected to
cause a Material Adverse Change.
(y) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of medical wastes, toxic
wastes, hazardous wastes or hazardous substances by the Company or its
subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not cause, singularly or in the aggregate with all such violations
and remedial actions, a Material Adverse Change; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or of any medical wastes, toxic wastes, hazardous wastes
or hazardous substances due to or
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caused by the Company or its subsidiaries or with respect to which the Company
or its subsidiaries had knowledge, except for any such spill, discharge, leak,
emission, injection, escapes, dumpings or releases which would not cause or
would not be reasonably likely to cause, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings or
releases, a Material Adverse Change; and the terms "hazardous substances,"
"toxic wastes," "hazardous wastes" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(z) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are engaged
or currently propose to engage after giving effect to the transactions described
in the Prospectus; and neither the Company nor any subsidiary of the Company has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue their business at a cost that
would not cause a Material Adverse Change, except as described in or
contemplated by the Prospectus.
(aa) Other than as contemplated by this Agreement, neither the Company
nor any of its subsidiaries is party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the Company for
any brokerage or finder's fee or other fee or commission as a result of any of
the transactions contemplated by this Agreement.
(bb) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) To the Company's knowledge, neither the Company nor any of its
subsidiaries nor any employee or agent of the Company or any of its subsidiaries
has made any payment of funds of the Company or any of its subsidiaries or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(dd) Neither the Company nor any of its subsidiaries is or, after
application of the net proceeds of this offering as described under the caption
"Use of Proceeds" in the Prospectus, will become an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(ee) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company as to the matters covered
thereby.
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(ff) The Company has not distributed and, prior to the later of (i) the
Closing Dates and (ii) the completion of the distribution of the Common Stock,
will not distribute any offering material in connection with the offering and
sale of the Common Stock other than the Registration Statement or any amendment
thereto, any Pre-effective Prospectus or the Prospectus or any amendment or
supplement thereto, or other materials, if any, permitted by the Act.
3. Purchase by, and Sale and Delivery to, Underwriters. On the basis of
the representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective numbers of Firm Stock set forth in
Schedule A hereto opposite its name, subject to adjustment in accordance with
Section 12 hereof, at U.S.$ _______ per share (the "PURCHASE PRICE").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York Time, on the second full business day preceding the
First Closing Date (as defined below) or, if no such direction is received, in
the names of the respective Underwriters or in such other names as the
Representatives may designate (solely for the purpose of administrative
convenience) and in such denominations as the Representatives may determine,
against payment of the aggregate Purchase Price therefor by certified or
official bank check or checks in immediately available funds (same day funds) or
wire transfer, payable to the order of the Company, all at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time
and date of the delivery and closing shall be at 10:00 A.M., New York Time, on
_________, 2000, in accordance with Rule 15c6-1 of the Exchange Act. The time
and date of such payment and delivery are herein referred to as the "FIRST
CLOSING DATE". The First Closing Date and the location of delivery of, and the
form of payment for, the Firm Stock may be varied by agreement among the Company
and the Representatives. The First Closing Date may be postponed pursuant to the
provisions of Section 12.
The Company shall make the certificates for the Firm Stock available to
the Representatives for examination on behalf of the Underwriters not later than
10:00 A.M., New York Time, on the business day preceding the First Closing Date
at the offices of XX Xxxxx, 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
It is understood that XX Xxxxx, individually and not as a
Representative of the several Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter or Underwriters, for
the Common Stock to be purchased by such Underwriter or Underwriters. Any such
payment by XX Xxxxx shall not relieve such Underwriter or Underwriters from any
of its or their other obligations hereunder.
The several Underwriters agree to make an initial public offering of
the Firm Stock at the initial public offering price as soon after the
effectiveness of the Registration Statement as in their judgment is advisable.
The Representatives shall promptly advise the Company of the making of the
initial public offering. The Company is advised by the
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Representatives that the Firm Stock is to be offered to the public initially at
U.S.$ ______ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by the Representatives at a price that represents a concession not in
excess of U.S.$ ____ a share under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of U.S.$ _____ a share, to any Underwriter or to certain other dealers.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Company hereby grants to the Underwriters an option to purchase, severally and
not jointly, up to ______ shares of Optional Stock. The price per share to be
paid for the Optional Stock shall be the Purchase Price. The option granted
hereby may be exercised as to all or any part of the Optional Stock at any time,
and from time to time, not more than thirty (30) days subsequent to the
effective date of this Agreement. No Optional Stock shall be sold and delivered
unless the Firm Stock previously has been, or simultaneously is, sold and
delivered. The right to purchase the Optional Stock or any portion thereof may
be surrendered and terminated at any time upon notice by the Underwriters to the
Company.
The option granted hereby may be exercised by the Underwriters by
giving written notice from XX Xxxxx to the Company setting forth the number of
shares of the Optional Stock to be purchased by the Underwriters and the date
and time for delivery of and payment for the Optional Stock. Each date and time
for delivery of and payment for the Optional Stock (which may be the First
Closing Date, but not earlier) is herein called the "OPTION CLOSING DATE" and
shall in no event be earlier than two (2) business days nor later than ten (10)
business days after written notice is given. (The Option Closing Date and the
First Closing Date are herein called the "CLOSING DATES".) All purchases of
Optional Stock from the Company shall be made on a pro rata basis. Optional
Stock shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Stock set forth opposite such
Underwriter's name in Schedule A hereto bears to the total number of shares of
Firm Stock (subject to adjustment by the Underwriters to eliminate odd lots).
Upon exercise of the option by the Underwriters, the Company agrees to sell to
the Underwriters the number of shares of Optional Stock set forth in the written
notice of exercise and the Underwriters agree, severally and not jointly and
subject to the terms and conditions herein set forth, to purchase the number of
such shares determined as aforesaid.
The Company will deliver the Optional Stock to the Representatives for
the respective accounts of several Underwriters in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York Time, on the second full business day preceding the
Option Closing Date or, if no such direction is received, in the names of the
respective Underwriters or in such other names as the Representatives may
designate (solely for the purpose of administrative convenience) and in such
denominations as the Representatives may determine, against payment of the
aggregate Purchase Price therefor by certified or official bank check or checks
in immediately available funds (same day funds) or wire transfer, payable to the
order of the Company, all at the offices of Shearman & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company shall make the certificates for
the Optional Stock available to the Representatives for examination on behalf of
the Underwriters not later than 10:00 A.M., New York Time, on the business day
preceding the Option Closing Date at the
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offices of XX Xxxxx, 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Option Closing Date and the location of delivery of, and the form of
payment for, the Option Stock may be varied by agreement among the Company and
the Representatives. The Option Closing Date may be postponed pursuant to the
provisions of Section 12.
4. Covenants and Agreements of the Company. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will (i) if the Company and the Representatives have
determined not to proceed pursuant to Rule 430A of the Rules and Regulations,
use its best efforts to cause the Registration Statement to become effective,
(ii) if the Company and the Representatives have determined to proceed pursuant
to Rule 430A of the Rules and Regulations, use its best efforts to comply with
the provisions of and make all requisite filings with the Commission pursuant to
Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and
the Representatives have determined to deliver a Prospectus pursuant to Rule 434
of the Rules and Regulations, use its best efforts to comply with all the
applicable provisions thereof. The Company will advise the Representatives
promptly as to the time at which the Registration Statement becomes effective,
will advise the Representatives promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
the institution of any proceedings for that purpose, and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible the lifting thereof, if issued. The Company will advise the
Representatives promptly of the receipt of any comments of the Commission or any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information and will not at any
time file any amendment to the Registration Statement or supplement to the
Prospectus which shall not previously have been submitted to the Representatives
a reasonable time prior to the proposed filing thereof or to which the
Representatives shall reasonably object in writing or which is not in compliance
with the Securities Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly
upon the request of the Representatives, any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may be reasonably necessary to enable the several Underwriters
to continue the distribution of the Common Stock and will use its best efforts
to cause the same to become effective as promptly as possible.
(c) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Common Stock is required to be
delivered under the Securities Act any event relating to or affecting the
Company or any of its subsidiaries occurs as a result of which the Prospectus
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if, in the opinion
of counsel for the Underwriters, it is necessary at any time to amend or
supplement the Prospectus to comply with the Securities Act or the Securities
Exchange Act of 1934, the Company will promptly notify the Representatives
thereof and will prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Common Stock shall have
been sold by the Representatives on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
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Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with the Securities Act or the Securities Exchange Act
of 1934.
(d) The Company will deliver to the Representatives, at or before the
Closing Dates, signed copies of the Registration Statement, as originally filed
with the Commission, and of all amendments thereto including all financial
statements and exhibits thereto, and will deliver to the Representatives such
number of copies of the Registration Statement, including such financial
statements but without exhibits, and all amendments thereto, as the
Representatives may reasonably request. The Company will deliver or mail to or
upon the order of the Representatives, from time to time until the effective
date of the Registration Statement, as many copies of the Pre-effective
Prospectus as the Representatives may reasonably request. The Company will
deliver or mail to or upon the order of the Representatives on the date of the
initial public offering, and thereafter from time to time during the period when
delivery of a prospectus relating to the Common Stock is required under the
Securities Act, as many copies of the Prospectus, in final form or as thereafter
amended or supplemented as the Representatives may reasonably request; provided,
however, that the expense of the preparation and delivery of any prospectus
required for use nine (9) months or more after the effective date of the
Registration Statement shall be borne by the Underwriters required to deliver
such prospectus.
(e) The Company will make generally available to its shareholders as
soon as practicable, but not later than fifteen (15) months after the effective
date of the Registration Statement, an earning statement which will be in
reasonable detail (but which need not be audited) and which will comply with
Section 11(a) of the Securities Act, covering a period of at least twelve (12)
months beginning after the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the
Common Stock to be registered or qualified for offering and sale by the
Underwriters and by dealers under the securities laws of such jurisdictions as
the Representatives may designate and at the request of the Representatives will
make such applications and furnish such consents to service of process or other
documents as may be required of it as the issuer of the Common Stock for that
purpose; provided, however, that the Company shall not be required to qualify to
do business or to file a general consent (other than that arising out of the
offering or sale of the Common Stock) to service of process in any such
jurisdiction where it is not now so subject. The Company will, from time to
time, prepare and file such statements and reports as are or may be required of
it as the issuer of the Common Stock to continue such qualifications in effect
for so long a period as the Representatives may reasonably request for the
distribution of the Common Stock. The Company will advise the Representatives
promptly after the Company becomes aware of the suspension of the qualifications
or registration of (or any such exception relating to) the Common Stock of the
Company for offering, sale or trading in any jurisdiction or of any initiation
or threat of any proceeding for any such purpose, and in the event of the
issuance of any orders suspending such qualifications, registration or
exception, the Company will, with the cooperation of the Representatives, use
its best efforts to obtain the withdrawal thereof.
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(g) The Company will use its best efforts to list the Common Stock,
subject to official notice of issuance, on the Nasdaq National Market
concurrently with the effectiveness of the Registration Statement.
(h) The Company will maintain a transfer agent and registrar for its
Common Stock.
(i) Prior to filing its quarterly statements on Form 10-Q, the Company
will have its independent auditors perform a limited quarterly review of its
quarterly numbers.
(j) The Company will not, for a period of 180 days following the date
of the final prospectus filed by the Company with the Securities and Exchange
Commission in connection with such public offering without the prior written
consent of XX Xxxxx, on behalf of the several Underwriters, (1) directly or
indirectly, offer, sell, assign, transfer, encumber, pledge, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise dispose
of, other than by operation of law, or file with the Securities and Exchange
Commission a registration statement under the Act relating to, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock (including, without limitation, Common Stock which may be
deemed to be beneficially owned by the Company in accordance with the Rules and
Regulations) or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
Common Stock whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise, other than (a) the Company's sale of Common Stock hereunder, (b)
the Company's issuance of stock options under the Company's 1995 Stock Plan or
2000 Stock Option Plan, (c) the Company's issuance of Common Stock upon the
exercise of warrants and stock options which are presently outstanding and
described in the Prospectus or which are granted after the date hereof and which
are exercisable before the expiration of the 180-day period referred to above
consistent with the Company's past practices in the two years preceding the date
of this Agreement, (d) the Company's issuance of Common Stock pursuant to the
Company's 2000 Employee Stock Purchase Plan, (e) the filing of a registration
statement on Form S-8 relating to stock option plans or other employee benefit
arrangements of the Company in existence on the date hereof, provided, however,
that such no registration statement will be filed for a period of 30 days
following the First Closing Date, and (f) the Company's issuance of Common Stock
in connection with acquisitions by the Company or any of its subsidiaries of
products, technologies or businesses, provided that the aggregate number of
shares issued pursuant to this subsection (f) does not exceed, in the aggregate,
2,800,000 shares.
(k) The Company will apply the net proceeds from the sale of the Common
Stock as set forth in the description under "Use of Proceeds" in the Prospectus,
which description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(l) The Company will supply the Representatives with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Common Stock under the Securities
Act.
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(m) Prior to each of the Closing Dates the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company and its subsidiaries
for any periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(n) Prior to each of the Closing Dates the Company will issue no press
release or other communications directly or indirectly and hold no press
conference (except for routine oral marketing communications in the ordinary
course of business and consistent with the past practices of the Company and of
which the Underwriters are notified) with respect to the Company or any of its
subsidiaries, the financial condition, results of operations, business,
prospects, assets or liabilities of any of them, or the offering of the Common
Stock, without the Representatives' prior written consent, unless in the
judgment of the Company and its counsel, and after notification to the
Underwriters, such press release or communication is required by law. For a
period of twelve (12) months following the First Closing Date, the Company will
use its best efforts to provide to the Representatives copies of each press
release or other public communications with respect to the financial condition,
results of operations, business, prospects, assets or liabilities of the Company
at least twenty-four (24) hours prior to the public issuance thereof or such
longer advance period as may reasonably be practicable.
5. Payment of Expenses. (a) The Company will pay (directly or by
reimbursement) all costs, fees and expenses incurred in connection with expenses
incident to the performance of the obligations of the Company under this
Agreement and in connection with the transactions contemplated hereby, including
but not limited to (i) all expenses and taxes incident to the issuance and
delivery of the Common Stock to the Representatives; (ii) all expenses incident
to the registration of the Common Stock under the Securities Act; (iii) the
costs of preparing stock certificates (including printing and engraving costs);
(iv) all fees and expenses of the registrar and transfer agent of the Common
Stock; (v) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Common Stock to the Underwriters; (vi) fees
and expenses of the Company's counsel and the Company's independent accountants;
(vii) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration Statement, each
Pre-effective Prospectus and the Prospectus (including all exhibits and
financial statements) and all amendments and supplements provided for herein,
the "Agreement Among Underwriters" between the Representatives and the
Underwriters, the Master Selected Dealers' Agreement, the Underwriters'
Questionnaire and the Blue Sky memoranda (including fees and expenses of counsel
to the Underwriters in connection with the preparation of the Underwriters'
Questionnaire and the Blue Sky Memoranda and with Blue Sky filings) and this
Agreement; (viii) all filing fees, attorneys' fees and expenses incurred by the
Company or the Underwriters in connection with exemptions from the qualifying or
registering (or obtaining qualification or registration of) all or any part of
the Common Stock for offer and sale and determination of its eligibility for
investment under the Blue Sky or other securities laws of such jurisdictions as
the Representatives may designate; (ix) all fees and expenses paid or incurred
in connection with filings made with the NASD, including fees and expenses of
counsel to the Underwriters in connection with such filings; (x) all fees and
expenses paid or incurred in connection with listing the Common Stock on Nasdaq;
(xi) the Company's expenses incurred in connection with the roadshow; and (xii)
all other costs and expenses incident to the performance of the Company's
obligations hereunder which are not otherwise
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specifically provided for in this Section; provided that, except as otherwise
provided in this Section 5 and in Section 10, the Underwriters shall pay their
own costs and expenses, including fees and expenses of their counsel, and the
expenses of advertising any offering of the Common Stock made by the
Underwriters.
(b) In addition to its other obligations under Section 6(a) hereof, the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
(i) any statement or omission or any alleged statement or omission, (ii) any act
or failure to act or any alleged act or failure to act or (iii) any breach or
inaccuracy in their representations and warranties, it will reimburse each
Underwriter (and to the extent applicable, each Underwriter Indemnified Party
(as defined in Section 6(a) hereof)) on a quarterly basis for all reasonable
legal or other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's obligation to reimburse each Underwriter for
such expenses and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, each Underwriter
shall promptly return it to the Company, together with interest, compounded
daily, determined on the basis of the prime rate (or other commercial lending
rate for borrowers of the highest credit standing) announced from time to time
by the Federal Reserve Bank, New York, New York (the "PRIME RATE"). Any such
interim reimbursement payments which are not made to an Underwriter within
thirty (30) days of a request for reimbursement shall bear interest at the Prime
Rate from the due date for such reimbursement. This expense reimbursement
agreement will be in addition to any other liability which the Company may
otherwise have. The request for reimbursement will be sent to the Company.
(c) In addition to its other obligations under Section 6(b) hereof,
each Underwriter severally agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in Section 6(b) hereof which relates to written
information furnished to the Company pursuant to Section 2(c) hereof, it will
reimburse the Company (and, to the extent applicable, each Company Indemnified
Party (as defined in Section 6(b) hereof)) on a quarterly basis for all
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Underwriters' obligation to reimburse the Company (and, to
the extent applicable, each Company Indemnified Party) for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company (and, to the
extent applicable, each Company Indemnified Party) shall promptly return it to
the Underwriters together with interest, compounded daily, determined on the
basis of the Prime Rate. Any such interim reimbursement payments which are not
made to the Company within thirty (30) days of a request for reimbursement shall
bear interest at the Prime Rate from the date of such request. This expense
reimbursement agreement will be in addition to any other liability which such
Underwriter may otherwise have. The request for reimbursement will be sent to XX
Xxxxx as the Representative of the Underwriters.
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(d) It is agreed that any controversy arising out of the operation of
the interim reimbursement arrangements set forth in paragraph (b) and/or (c) of
this Section 5, including the amounts of any requested reimbursement payments
and the method of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules of the Board of
Governors of the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be commenced by
service of a written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in paragraph (b) of this Section
5 and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of Section
6.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of the Securities Act and the
respective officers, directors, partners, employees, representatives and agents
of each of such Underwriters (collectively, the "UNDERWRITER INDEMNIFIED
PARTIES" and, each, an "UNDERWRITER INDEMNIFIED PARTY"), against any losses,
claims, damages, liabilities or expenses (including the reasonable cost of
investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, which may be based upon the
Securities Act, or any other statute or at common law, (i) on the ground or
alleged ground that any Pre-effective Prospectus, the Registration Statement or
the Prospectus (or any Pre-effective Prospectus, the Registration Statement or
the Prospectus as from time to time amended or supplemented) includes or
allegedly includes an untrue statement of a material fact or omits or allegedly
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, unless such statement or omission or alleged
statement or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter or on behalf of any
Underwriter through its counsel, directly or through the Representatives,
specifically for use in the preparation thereof; (ii) on the ground or alleged
ground of an untrue statement or alleged untrue statement of any material fact
contained in any audio or visual materials provided by the Company or based upon
written information furnished by or on behalf of the Company including, without
limitation, slides, videos, films, tape recordings, used in connection with the
marketing of the Common Stock, including, without limitation, statements
communicated to securities analysts employed by the Underwriters; provided,
however, that the foregoing indemnification agreement with respect to the
Pre-effective Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage or liability purchased
Common Stock, or any officers, directors, partners, employees, representatives,
agents or controlling persons of such Underwriter, if (A) a copy of the
Prospectus (as then amended or supplemented) was required by law to be delivered
to such person at or prior to the written confirmation of the sale of Common
Stock to such person, (B) a copy of the Prospectus (as then amended or
supplemented) was not sent or given to such person by or on behalf of such
Underwriter and such failure was not due to non-compliance by the Company with
Section 4(d) hereof, and (C) the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability; or (iii) for any act or failure to act or any alleged act or failure
to act by any
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Underwriter in connection with, or relating in any manner to, the Common Stock
or the offering contemplated hereby, which is included as part of or referred to
in any loss, claim, damage, liability or expense arising out of or based upon
matters covered by clauses (i) and (ii) above (provided that the Company shall
not be liable under this clause (iii) to the extent that it is determined in a
final judgment by a court of competent jurisdiction that such loss, claim,
damage, or liability or expense resulted directly from any such acts or failures
to act undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct); provided, however, that in no case is the
Company to be liable with respect to any claims made against any Underwriter
Indemnified Party against whom the action is brought unless such Underwriter
Indemnified Party shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Underwriter Indemnified
Party, but failure to notify the Company of such claim shall not relieve it from
any liability which it may have to any Underwriter Indemnified Party otherwise
than on account of its indemnity agreement contained in this paragraph. The
Company shall be entitled to participate at its own expense in the defense or,
if it so elects, to assume the defense of any suit brought to enforce any such
liability, but if the Company elects to assume the defense, such defense shall
be conducted by counsel chosen by it and reasonably acceptable to the
Underwriters. In the event the Company elects to assume the defense of any such
suit and retain such counsel, any Underwriter Indemnified Parties, defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Company shall have specifically
authorized the retaining of such counsel or (ii) the parties to such suit
include any such Underwriter Indemnified Parties, and the Company and such
Underwriter Indemnified Parties at law or in equity have been advised by counsel
to the Underwriters that one or more legal defenses may be available to it or
them which may not be available to the Company, in which case the Company shall
not be entitled to assume the defense of such suit notwithstanding its
obligation to bear the fees and expenses of such counsel. The Company shall not,
however, in connection with any one such action or separate but substantially
similar or related action in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all such
Underwriter Indemnified Parties. Each Underwriter Indemnified Party, as a
condition of the indemnity agreements contained in this Section 6(a), shall use
all reasonable efforts to cooperate with the Company in the defense of such
action or claim. The Company shall not be liable to indemnify any person for any
settlement of any such claim effected without the Company's written consent.
This indemnity agreement is not exclusive and will be in addition to any
liability which the Company might otherwise have and shall not limit any rights
or remedies which may otherwise be available at law or in equity to each
Underwriter Indemnified Party.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, partners, employees, representatives and
agents and each person, if any, who controls the Company within the meaning of
the Securities Act (collectively, the "COMPANY INDEMNIFIED PARTIES") against any
losses, claims, damages, liabilities or expenses (including, unless the
Underwriter or Underwriters elect to assume the defense, the reasonable cost of
investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, which arise out of or are
based in whole or in part upon the Securities Act, the Exchange Act or any other
federal, state, local or foreign statute or
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regulation, or at common law, on the ground or alleged ground that any
Pre-effective Prospectus, the Registration Statement or the Prospectus (or any
Pre-effective Prospectus, the Registration Statement or the Prospectus, as from
time to time amended or supplemented) includes or allegedly includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, but only insofar as
any such statement or omission or alleged statement or omission was made in
reliance upon, and in conformity with, written information furnished to the
Company by such Underwriter or on behalf of such Underwriter through its
counsel, directly or through the Representatives, specifically for use in the
preparation thereof; provided, however, that in no case is such Underwriter to
be liable with respect to any claims made against any Company Indemnified Party
against whom the action is brought unless such Company Indemnified Party shall
have notified such Underwriter in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the Company Indemnified Party, but failure to
notify such Underwriter of such claim shall not relieve it from any liability
which it may have to any Company Indemnified Party otherwise than on account of
its indemnity agreement contained in this paragraph. Such Underwriter shall be
entitled to participate at its own expense in the defense, or, if it so elects,
to assume the defense of any suit brought to enforce any such liability, but, if
such Underwriter elects to assume the defense, such defense shall be conducted
by counsel chosen by it and reasonably acceptable to the Company. In the event
that any Underwriter elects to assume the defense of any such suit and retain
such counsel, the Company Indemnified Parties and any other Underwriter or
Underwriters or controlling person or persons, defendant or defendants in the
suit, may retain additional counsel but shall bear the fees and expenses of such
counsel retained by them, respectively. The Underwriter against whom indemnity
may be sought shall not be liable to indemnify any person for any settlement of
any such claim effected without such Underwriter's consent. This indemnity
agreement is not exclusive and will be in addition to any liability which such
Underwriter might otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to any Company Indemnified
Party.
(c) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Common Stock. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with the
statements or omissions or acts which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
Common Stock shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
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Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (c) 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 which does not
take account of the equitable considerations referred to above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to above shall
be deemed to include, for the purposes of this subsection (c), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating, defending, settling or compromising any such claim.
Notwithstanding the provisions of this subsection (c), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the shares of the Common Stock underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Underwriters'
obligations to contribute are several in proportion to their respective
underwriting obligations and not joint. 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.
7. Survival of Indemnities, Representations, Warranties, etc. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and shall survive delivery of and payment for the Common
Stock.
8. Conditions of Underwriters' Obligations. The respective obligations
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date hereof and at and as of each
of the Closing Dates, of the representations and warranties made herein by the
Company, to compliance at and as of each of the Closing Dates by the Company
with its covenants and agreements herein contained and other provisions hereof
to be satisfied at or prior to each of the Closing Dates, and to the following
additional 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 that purpose shall have been initiated or, to the knowledge of
the Company or the Representatives, shall be threatened by the Commission, and
any request for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the Representatives.
Any filings of the Prospectus, or any supplement thereto, required pursuant to
Rule 424(b) or Rule 434 of the Rules and Regulations, shall have been made in
the manner and within the time period required by Rule 424(b) and Rule 434 of
the Rules and Regulations, as the case may be.
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(b) The Representatives shall have been satisfied that there shall not
have occurred any Material Adverse Change since the date of the Prospectus,
prior to each of the Closing Dates, or any change in the capital stock,
short-term or long-term debt of the Company and its subsidiaries considered as a
whole other than options granted pursuant to the Company's 1995 Stock Plan or
2000 Stock Option Plan or shares issued upon exercise of options granted
pursuant to the 1995 Stock Plan or 2000 Stock Option Plan or upon exercise of
outstanding warrants or as disclosed in the Prospectus, as amended or
supplemented, such that (i) the Registration Statement or the Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact which, in
the opinion of the Representatives, is material, or omits to state a fact which,
in the opinion of the Representatives, is required to be stated therein or is
necessary to make the statements therein not misleading, or (ii) it is
impracticable, in the reasonable judgment of the Representatives, to proceed
with the public offering or purchase the Common Stock as contemplated hereby.
(c) The Representatives shall be satisfied that no legal or
governmental action, suit or proceeding affecting the Company which is material
and adverse to the Company or which affects or may affect the Company's ability
to perform its obligations under this Agreement shall have been instituted or
threatened and there shall have occurred no material adverse development in any
existing such action, suit or proceeding.
(d) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxxx Xxxxxxxx LLC, independent certified public
accountants, a letter, dated the date hereof, in form and substance satisfactory
to the Underwriters.
(e) At each of the Closing Dates, the Representatives shall have
received from Xxxxxx Xxxxxxxx LLC, independent certified public accountants, a
letter, dated such Closing Date, to the effect that such accountants reaffirm,
as of such Closing Date, and as though made on such Closing Date, the statements
made in the letter furnished by such accountants pursuant to Section 8(d)
hereof.
(f) At each of the Closing Dates, the Representatives shall have
received from each of (i) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, corporate counsel for the Company, (ii) Fulbright & Xxxxxxxx LLP,
patent counsel for the Company and (iii) Advokatfirman Xxxxx KB, Swedish counsel
for the Company, an opinion, dated such Closing Date, to the effect set forth in
Exhibits I-A, I-B and I-C hereto, respectively.
(g) At each of the Closing Dates, the Representatives shall have
received from Shearman & Sterling, counsel for the Underwriters, their opinion,
dated such Closing Date, with respect to the incorporation of the Company, the
validity of the Common Stock, the Registration Statement and the Prospectus and
such other related matters as it may reasonably request, and the Company shall
have furnished to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
(h) At each of the Closing Dates, the Company shall have furnished to
the Representatives a certificate, dated such Closing Date, of the chief
executive officer or the President and the chief financial or accounting officer
of the Company to the effect that:
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(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the knowledge of the
signers, no proceedings for that purpose have been instituted or are
pending or threatened by the Commission;
(ii) Neither any Pre-effective Prospectus, as of its date, nor
the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, as of the time when the Registration Statement
became effective and at all times subsequent thereto up to the delivery
of such certificate, included any untrue statement of a material fact
or omitted to state any 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;
(iii) To their knowledge after reasonable investigation, the
representations and warranties of the Company in this Agreement are
true and correct at and as of such Closing Date, and the Company has
complied in all material respects with all the agreements and performed
or satisfied in all material respects all the conditions on its part to
be performed or satisfied at or prior to such Closing Date; and
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
disclosed in or contemplated therein, (A) neither the Company nor any
of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, nor entered into any material
transactions not in the ordinary course of business; (B) there has not
been any Material Adverse Change; (C) the business and operations
conducted by the Company and its subsidiaries have not sustained a loss
by strike, fire, flood, accident or other calamity (whether or not
insured) of such a character as to interfere materially with the
conduct of the business and operations of the Company and its
subsidiaries considered as a whole; (D) no legal or governmental
action, suit or proceeding is pending or, to the Company's knowledge,
threatened against the Company which is material to the Company,
whether or not arising from transactions in the ordinary course of
business, or which may materially and adversely affect the transactions
contemplated by this Agreement; (E) there has not been any change in
the capital stock, short-term or long-term debt of the Company and its
subsidiaries considered as a whole other than options granted pursuant
to the Company's 1995 Stock Plan or 2000 Stock Option Plan, shares
issued upon exercise of options granted pursuant to the 1995 Stock Plan
or 2000 Stock Option Plan and shares issued upon exercise of
outstanding warrants or as disclosed in the Prospectus, as amended or
supplemented; and (F) other than the stock dividend on the Company's
Common Stock declared on August 31, 2000 the Company has not declared
or paid any dividend, or made any other distribution, upon its
outstanding capital stock payable to stockholders of record on a date
prior to the Closing Dates.
(i) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably requested as
to the accuracy, at and as
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of each of the Closing Dates, of the representations and warranties made herein
by it and as to compliance at and as of each of the Closing Dates by it with its
covenants and agreements herein contained and other provisions hereof to be
satisfied at or prior to each of the Closing Dates, and as to satisfaction of
the other conditions to the obligations of the Underwriters hereunder.
(j) The Representatives shall have received the written agreements,
substantially in the form of Exhibit II hereto, of the officers, directors and
holders of Common Stock listed in Schedule B hereto.
(k) The Nasdaq National Market shall have approved the Common Stock for
listing, subject only to official notice of issuance.
(l) All opinions, certificates, letters and other documents will be in
compliance with the provisions hereunder only if they are satisfactory in form
and substance to the Representatives. The Company will furnish to the
Representatives conformed copies of such opinions, certificates, letters and
other documents as the Representatives shall reasonably request. If any of the
conditions hereinabove provided for in this Section shall not have been
satisfied when and as required by this Agreement, this Agreement may be
terminated by the Representatives by notifying the Company of such termination
in writing or by telegram at or prior to each of the Closing Dates, but XX
Xxxxx, on behalf of the Representatives, shall be entitled to waive any of such
conditions.
9. Effective Date. This Agreement shall become effective immediately as
to Sections 5, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 17, and, as to all other
provisions, at 11:00 a.m. New York City time on the first full business day
following the effectiveness of the Registration Statement or at such earlier
time after the Registration Statement becomes effective as the Representatives
may determine on and by notice to the Company or by release of any of the Common
Stock for sale to the public. For the purposes of this Section 9, the Common
Stock shall be deemed to have been so released upon the release for publication
of any newspaper advertisement relating to the Common Stock or upon the release
by the Representatives of telegrams (i) advising Underwriters that the shares of
Common Stock are released for public offering or (ii) offering the Common Stock
for sale to securities dealers, whichever may occur first.
10. Termination. This Agreement (except for the provisions of Section
5) may be terminated by the Company at any time before it becomes effective in
accordance with Section 9 by notice to the Representatives and may be terminated
by the Representatives at any time before it becomes effective in accordance
with Section 9 by notice to the Company. In the event of any termination of this
Agreement under this or any other provision of this Agreement, there shall be no
liability of any party to this Agreement to any other party, other than as
provided in Sections 5, 6 and 11 and other than as provided in Section 12 as to
the liability of defaulting Underwriters.
This Agreement may be terminated after it becomes effective by the
Representatives by notice to the Company (i) if at or prior to the First Closing
Date trading in securities on the New York Stock Exchange or the Nasdaq National
Market System shall have been suspended or minimum or maximum prices shall have
been established on any such
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exchange or market, or a banking moratorium shall have been declared by New York
or United States authorities; (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market;
(iii) if at or prior to the First Closing Date there shall have been (A) an
outbreak or escalation of hostilities between the United States and any foreign
power or of any other insurrection or armed conflict involving the United States
or (B) any change in financial markets or any calamity or crisis which, in the
judgment of the Representatives, makes it impractical or inadvisable to offer or
sell the Common Stock on the terms contemplated by the Prospectus; (iv) if there
shall have been any development or prospective development involving
particularly the business or properties or securities of the Company or any of
its subsidiaries or the transactions contemplated by this Agreement, which, in
the judgment of the Representatives, makes it impracticable or inadvisable to
offer or deliver the Common Stock on the terms contemplated by the Prospectus;
(v) if there shall be any litigation or proceeding, pending or threatened,
which, in the judgment of the Representatives, makes it impracticable or
inadvisable to offer or deliver the Common Stock on the terms contemplated by
the Prospectus; or (vi) if there shall have occurred any of the events specified
in the immediately preceding clauses (i) - (v) together with any other such
event that makes it, in the judgment of the Representatives, impractical or
inadvisable to offer or deliver the Common Stock on the terms contemplated by
the Prospectus.
11. Reimbursement of Underwriters. Notwithstanding any other provisions
hereof, if this Agreement shall not become effective by reason of any election
of the Company pursuant to the first paragraph of Section 10 or shall be
terminated by the Representatives under Section 8 or Section 10, the Company
will bear and pay the expenses specified in Section 5 hereof and, in addition to
the obligations pursuant to Section 6 hereof, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection with this Agreement and the proposed purchase of the Common Stock,
and promptly upon demand the Company will pay such amounts to the
Representatives.
12. Substitution of Underwriters. If any Underwriter or Underwriters
shall default in its or their obligations to purchase shares of Common Stock
hereunder and the aggregate number of shares which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed ten percent (10%)
of the total number of shares underwritten, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 12, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file
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any amendments to the Registration Statement or supplements to the Prospectus
which may thereby be made necessary, and (ii) the respective numbers of shares
to be purchased by the remaining Underwriters or substituted Underwriters shall
be taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company or the other Underwriters for damages occasioned by
its default hereunder. Any termination of this Agreement pursuant to this
Section 12 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 6.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriters, shall be mailed, delivered or faxed and confirmed to
XX Xxxxx at 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
except that notices given to an Underwriter pursuant to Section 6 hereof shall
be sent to such Underwriter at the address furnished by the Representatives or,
if sent to the Company, shall be mailed, delivered or faxed and confirmed to
Introgen Therapeutics, Inc., Attention: Xxxxx X. Xxxxx, 000 Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Fax: 000-000-0000.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties and the
indemnities of the several Underwriters shall also be for the benefit of the
Company Indemnified Parties.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
conflict of laws principles of such state.
16. Authority of the Representatives. In connection with this
Agreement, the Representatives will act for and on behalf of the several
Underwriters, and any action taken under this Agreement by XX Xxxxx, Prudential
Securities Incorporated or PaineWebber Incorporated, as Representatives, will be
binding on all the Underwriters.
17. 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.
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18. General. 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.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representatives.
19. Counterparts. This Agreement may be signed in two (2) or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
INTROGEN THERAPEUTICS, INC.
By:_____________________________________________
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
Accepted and delivered in
_________________as of
the date first above written.
XX XXXXX SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
PAINEWEBBER INCORPORATED
Acting on its own behalf
and as Representatives of the several
Underwriters referred to in the
foregoing Agreement.
By: XX Xxxxx Securities Corporation
By:______________________________
Name:
Title:
27
SCHEDULE A
UNDERWRITERS FIRM STOCK OPTIONAL STOCK
------------ ---------- --------------
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
PaineWebber Incorporated
TOTAL
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SCHEDULE B
[List of Officers, Directors and Common Stock Holders]
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29
Exhibit I-A
[Form of Opinion of Issuer's Counsel]
[Date]
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
PaineWebber Incorporated
As representatives of the several
Underwriters named in Schedule A
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Introgen Therapeutics, Inc.
____ Shares of Common Stock
[WSGR Shell to come]
We are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has all
corporate power and authority necessary to own or hold its properties and
conduct the business in which it is engaged, except where the failure to so
qualify or to have such power or authority would not, singularly or in the
aggregate, be reasonably expected to cause a Material Adverse Change;
2. Gendux, Inc. and TMX Realty Corporation have been duly incorporated
and are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each jurisdiction
in which their respective ownership or lease of property or the conduct of their
businesses requires such qualification, and have all corporate power and
authority necessary to own or hold their respective properties and conduct the
businesses in which they are engaged, except where the failure to so qualify or
to have such power or authority would not, singularly or in the aggregate, be
reasonably expected to cause a Material Adverse Change;
3. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable, and all of the Shares to be issued and sold by the Company to
the Underwriters pursuant to the Underwriting Agreement have been duly and
validly authorized and, when issued and delivered against payment therefor as
provided for in the Underwriting Agreement, shall be duly and validly
30
issued and fully paid and non-assessable; and all of the issued and outstanding
shares of capital stock of Gendux, Inc. and TMX Realty Corporation have been
duly and validly authorized and issued and are fully paid, non-assessable and
owned directly by the Company, free and clear of all liens, encumbrances,
equities or claims;
4. Except as disclosed in or contemplated by the Prospectus, there are
no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any of the Shares pursuant to the
Company's Certificate of Incorporation or Bylaws or any agreement or other
instrument known to us;
5. To our knowledge and except as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or assets of the Company or
any of its subsidiaries is the subject which, individually or in the aggregate,
if determined adversely to the Company or any of its subsidiaries, would be
reasonably expected to cause a Material Adverse Change and, to our knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by other third parties;
6. The Company has full corporate power and authority to enter into the
Underwriting Agreement and to perform its obligations thereunder (including to
issue, sell and deliver the Shares), and the Underwriting Agreement has been
duly and validly authorized, executed and delivered by the Company;
7. The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated thereby will not
result in a breach or violation of any of the terms or provisions of or
constitute a default under any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument known to us to which the Company or
any of its subsidiaries is a party or by which any of them or any of their
properties is bound, the Certificate of Incorporation, Bylaws or other
organizational documents of the Company or any of its subsidiaries, or any law,
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties;
8. No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Company of
the transactions contemplated by the Underwriting Agreement, except such as may
be required by the National Association of Securities Dealers, Inc. (the "NASD")
or under the Securities Act or the securities or "Blue Sky" laws of any
jurisdiction in connection with the purchase and distribution of the Shares by
the Underwriters;
9. To our knowledge, the Company and each of its subsidiaries are in
compliance with, and conduct their businesses in conformity with, all applicable
federal, state, local and foreign laws, rules and regulations, including, but
not limited to, those of any governmental agency, court or tribunal, except for
such failures to so comply or failures to so conduct their businesses as would
not be reasonably likely to cause a Material Adverse Change; to our knowledge,
no prospective change in any of such federal, state, local or foreign laws,
rules or regulations has been adopted which, when made effective, would be
reasonably likely to cause
I-A-2
31
a Material Adverse Change. To our knowledge, the Company and its subsidiaries
are in compliance with all applicable federal, state, local and foreign laws and
regulations relating to the protection of human health or the environment or
imposing liability or requiring standards of conduct concerning any Hazardous
Materials, except for such failures to so comply as would not be reasonably
likely to cause a Material Adverse Change;
10. The Registration Statement was declared effective under the
Securities Act as of __________, 2000, the Prospectus was filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations on __________,
2000 and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is pending or, to
our knowledge, threatened by the Commission;
11. The Registration Statement and the Prospectus and any amendments or
supplements thereto as of their respective effective or issue dates (other than
the financial statements and other financial data contained therein, as to which
we express no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
12. To our knowledge, there are no contracts or other documents which
are required by the Securities Act or by the Rules and Regulations to be
described in the Prospectus or filed as exhibits to the Registration Statement
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations;
13. To our knowledge, other than as described in the Prospectus or as
set forth in the Exhibits to the Registration Statement, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right (except for persons and entities who have expressly waived such
right or who have been given proper notice and have failed to exercise such
right within the time or times required under the terms and conditions of such
right) to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to this Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act;
l4. The descriptions in the Registration Statement and Prospectus of
statutes, rules, regulations, legal or governmental proceedings, contracts and
other documents are accurate in all material respects and such descriptions
fairly present in all material respects the information required to be
disclosed; and to the best of our knowledge, there are no legal or governmental
proceedings, statutes, rules or regulations, or any contracts or documents of a
character required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not described
and filed as required;
15. The statements in the Registration Statement and Prospectus under
the captions "Risk Factors - We may encounter delays or difficulties in our
INGN 201 clinical trials, which may delay or preclude regulatory approval of
INGN 201"; - "If we are unable to manufacture our products in sufficient
quantities or are unable to obtain regulatory approvals for our manufacturing
facility, we may be unable to meet demand for our products and lose potential
revenues"; and "Business - Governmental Regulation", insofar as such statements
purport to describe or summarize applicable provisions of the Federal Food,
Drug, and Cosmetic Act ("FDC Act") and the regulations promulgated thereunder,
are accurate and complete in all material respects and fairly present the
information purported to be described therein, and based upon the descriptions
of the Company's business contained under the caption "Business" in the
Registration Statements and Prospectus, such statements summarize the provisions
of the FDC Act that are material to the Company's business.
X-X-0
00
00. The Company and each of its subsidiaries are not, nor will they be
immediately after receiving the proceeds from the sale of the Shares, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended; and
17. The statements in the Registration Statement and Prospectus under
the caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Shares, are accurate in all material
respects.
We have participated in conferences with certain officers and employees
of and with auditors for the Company, at which conferences the contents of the
Registration Statement and Prospectus and related matters were discussed, and
although we have not verified the accuracy or completeness of the statements
contained in the Registration Statement or the Prospectus (except as specified
in clause 17 above), nothing has come to our attention which leads us to believe
that the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; it being understood we are not
expressing any opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus.
I-A-4
33
The opinions set forth herein and the statements set forth in the
paragraph immediately following such opinions are intended solely for your use
in connection with the sale by the Company and the purchase by you of the Common
Stock pursuant to the Underwriting Agreement, may not be relied upon by you for
any other purpose and are not to be made available to or relied upon by other
persons or entities without our prior written consent. This letter is delivered
to you as of the date hereof, and we do not undertake to, and will not, advise
you of any changes to the matters addressed herein that arise or come to our
attention after the delivery hereof.
Very truly yours,
X-X-0
00
Xxxxxxx X-X
[Form of Opinion of Issuer's Patent Counsel]
[Date]
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
PaineWebber Incorporated
As representatives of the several
Underwriters named in Schedule A
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Introgen Therapeutics, Inc.
____ Shares of Common Stock
Dear Sirs:
We have acted as patent counsel for Introgen Therapeutics, Inc., a
Delaware corporation (the "Company"), in connection with the sale by the Company
and purchase of ____ shares of Common Stock, par value $.001 per share, of the
Company (the "Shares") by the several Underwriters listed in Schedule A to the
Underwriting Agreement, dated ____, among the Company, XX Xxxxx Securities
Corporation, Chase Securities, Inc. and Prudential Securities Incorporated, as
representatives of the several Underwriters named therein (the "Underwriting
Agreement"). The opinion is being furnished pursuant to Section 8(f) of the
Underwriting Agreement. All defined terms not defined herein shall have the
meanings ascribed to them in the Underwriting Agreement.
Specifically, we have represented the Company with respect to patents
and patent applications as set forth in Registration Statement. All opinions
expressed herein are based solely on the present actual knowledge of the persons
in this firm who have devoted substantive attention to the representation of the
Company.
It should be recognized that opinions of patent counsel of the type
referred to below rely on determinations of factual issues and determinations of
complex issues of law and technology in an area where many issues have yet to be
resolved. By statute, inventions are patentable in the United States unless
patentability is precluded by facts or circumstances such as the prior work and
prior publications of others, among other things. Hence, opinions regarding the
issues of novelty and nonobviousness underlying patentability require literature
searches and other investigations of the state of the relevant art and involve
subjective judgments as to whether, in view of the level of skill possessed by
those working in the art, the invention claimed in the patent would have been
obvious to one having ordinary skill in that art at the time of the invention.
We have undertaken no such searches or analyses for the specific purpose of
rendering the following opinions.
35
We are of the opinion that:
1. To the best of our knowledge, the statements in the Registration
Statement and the Prospectus under the captions "Risk Factors If we fail to
adequately protect our intellectual property rights, our competitors may be able
to take advantage of our research and development efforts to develop competing
drugs," "Risk Factors--Third party claims of infringement of intellectual
property could require us to spend time and money to address the claims and
could limit our intellectual property rights," and "Business--Patents and
Intellectual Property" (collectively, the "Intellectual Property Sections") are
accurate and fair summaries of the legal matters referred to therein.
2. The Company and each of its subsidiaries own all patents,
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by them.
3. To the best of our knowledge, there are no pending or threatened
actions, suits or proceedings against or affecting any patents, patent licenses,
trademarks, service marks, trade names, copyrights, mask works, technology,
know-how or other proprietary intellectual property rights ("Intellectual
Property") owned or used by the Company or necessary to conduct the business now
or proposed to be conducted by it as described in the Prospectus, to which the
Company is a party or to which any of the properties of the Company is subject,
except as disclosed in the Registration Statement and Prospectus.
4. To the best of our knowledge, the Company has not received any
notice of infringement or alleged infringement of the Company or conflict with
asserted rights of others with respect to any Intellectual Property, except as
disclosed in the Registration Statement.
5. To the best of our knowledge, the pending patent applications
referred to in the Prospectus have been duly and properly filed with the U.S.
Patent and Trademark Office.
6. Nothing has come to our attention that causes us to believe that the
Intellectual Property Sections in the (a) Registration Statement or any
amendment thereof, at the time the Registration became effective, contained any
untrue statement of material fact or omitted to state any material fact required
to be stated therein to make the statements therein not misleading, or (b) the
Prospectus, as amended or supplemented as of its date and as of the date hereof,
included any untrue statement of material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
With respect to patents and patent applications discussed in the
Registration Statement and filed and prosecuted by our firm, we have relied on
information provided to us by or on behalf of the named inventors concerning
matters such as their knowledge of prior art, the disclosure required to enable
others to make and use the respective inventions, and the best mode contemplated
by the named inventors for carrying out their respective inventions. We have
endeavored to notify the named inventors of their duty of candor toward the U.S.
Patent and Trademark Office, but we have not made, nor are we in a position to
make, an independent investigation of such technical information provided to us
by the inventors. In only a few
I-B-2
36
instances was a preliminary patentability search performed at or around the time
the invention was first disclosed to this firm, and those cases where such a
search was performed, it was only a limited search. We make no representations
as to the completeness of these searches. No further search for prior art
references has been conducted at this time in connection with the rendering of
the present opinion. Relevant prior art references may exist which could affect
the patentability of the patents and patent applications described in the
Registration Statement. There is no assurance that patents will ultimately be
granted from these applications or that, if patents are granted, they will
ultimately be upheld in litigation if challenged or that they will have
commercially significant scope.
The information provided in this letter is current as of the present
date. We assume no obligation to provide you with information that may hereafter
be brought to our attention, whether or not deemed material.
Very truly yours,
FULBRIGHT & XXXXXXXX, LLP
_______________________
Xxxxxx X. Highlander
I-B-3
37
Exhibit I-C
[Form of Swedish Counsel Opinion]
[Date]
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
PaineWebber Incorporated
As representatives of the several
Underwriters named in Schedule A
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Introgen Therapeutics, Inc.
____ Shares of Common Stock
Dear Sirs:
We have acted as Swedish counsel for Gendux AB (the "Company"), a
Swedish corporation and a wholly-owned subsidiary of Gendux, Inc., a Delaware
corporation which is a wholly-owned subsidiary of Introgen Therapeutics, Inc., a
Delaware corporation ("Parent"), in connection with the sale by Parent and
purchase of ____ shares of Common Stock, par value $.001 per share, of Parent
(the "Shares") by the several Underwriters listed in Schedule A to the
Underwriting Agreement, dated ____, among the Company, XX Xxxxx Securities
Corporation, Prudential Securities Incorporated and PaineWebber Incorporated, as
representatives of the several Underwriters named therein (the "Underwriting
Agreement"). This opinion is being furnished pursuant to Section 8(f) of the
Underwriting Agreement. All defined terms not defined herein shall have the
meanings ascribed to them in the Underwriting Agreement.
We are of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
company under the laws of Sweden, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such qualification
(except to the extent that the failure to be so qualified would not in our view
have a material adverse effect on the Company and its subsidiaries taken as a
whole).
2. The Company has no subsidiaries.
3. The Company has all materially necessary certificates, orders,
permits, licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with all relevant governmental authorities,
all self-regulatory organizations and all relevant courts and tribunals, to own,
lease, license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, and, to the best of our knowledge after
due inquiry, has not received any notice of proceedings relating to revocation
or
38
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in violation of, or in
default under, any federal, state, local, national or regional law, regulation,
rule, decree, order or judgment applicable to the Company, the effect of which,
singly or in the aggregate, would have a material adverse effect on the
prospects, condition, financial or otherwise, or in the earnings, business or
operations of the Company, except as described herein or in the Prospectus. The
Company is in compliance with all applicable federal, state, local and foreign
laws and regulations relating to the protection of human health or the
environment or imposing liability or requiring standards of conduct concerning
any Hazardous Materials.
4. The statements in the Prospectus under the caption "Business --
Academic and Other Collaborations -- Gendux, Inc. and Gendux AB" are accurate in
all material respects and fairly summarize all matters referred to therein.
5. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividend or make any payment or
transfer of property or assets to its stockholders other than those described in
the Prospectus and such restrictions as would not have a material adverse effect
on the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and such descriptions, if any, fairly
summarize such restrictions.
6. There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any of the shares
of the Company's capital stock pursuant to the Company's charter or By-Laws or
any agreement or other instrument.
7. The Company owns or possesses all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in the
Prospectus as being owned by it or necessary for the conduct of its business,
and the Company is not aware of any claim to the contrary or any challenge by
any other person to the rights of the Company with respect to the foregoing. The
Company's business as now conducted and as proposed to be conducted does not and
will not infringe or conflict with any patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses or other intellectual property or
franchise right of any person.
Nothing has come to our attention that causes us to believe that the
sections relating to the Company in the (a) Registration Statement or any
amendment thereof, at the time the Registration became effective, contained any
untrue statement of material fact or omitted to state any material fact required
to be stated therein to make the statements therein not misleading, or (b) the
Prospectus, as amended or supplemented and as of its date and as of the date
hereof, included any untrue statement of material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Very truly yours,
I-C-2
39
Exhibit I-D
[Form of Lock-up Agreement]
[Date]
XX XXXXX SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
as representatives of the several Underwriters
c/o XX Xxxxx Securities Corporation
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
RE: INTROGEN THERAPEUTICS, INC.
Ladies and Gentlemen:
In order to induce XX Xxxxx Securities Corporation ("XX Xxxxx") and
Prudential Securities Incorporated (the "Representatives") to enter into a
certain underwriting agreement (the "Underwriting Agreement") with Introgen
Therapeutics, Inc., a Delaware corporation (the "Company"), with respect to the
public offering of shares of the Company's Common Stock, par value $0.001 per
share ("Common Stock"), the undersigned hereby agrees that for a period of 180
days following the date of the final prospectus filed by the Company with the
Securities and Exchange Commission (the "SEC") in connection with such public
offering, the undersigned will not, without prior written consent of XX Xxxxx,
on behalf of the several Underwriters named in Schedule A of the Underwriting
Agreement (the "Underwriters"), (1) directly or indirectly, offer, sell, assign,
transfer, encumber, pledge, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise dispose of, other than by operation of
law, any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock, whether now owned or hereafter acquired or with
respect to which the undersigned has or hereafter acquires the power of
disposition (including, without limitation, Common Stock which may be deemed to
be beneficially owned by the undersigned in accordance with the rules and
regulations promulgated under the Securities Act of 1933, as the same may be
amended or supplemented from time to time (such shares, the "Beneficially Owned
Shares")) or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
Common Stock whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise; provided, however, that the foregoing covenant shall not apply to
shares of Common Stock acquired by the undesigned in the open market after the
date the Company's Registration Statement is declared effective by the SEC.
In addition, the undersigned hereby waives, from the date hereof until
the expiration of the 180 day period following the date of the Company's final
Prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of any shares of Common Stock that are registered
in the name of the undersigned or that are Beneficially Owned Shares.
40
Notwithstanding the foregoing covenants, the undersigned may transfer
the undersigned's shares of Common Stock or Beneficially Owned Shares (i) as a
bona fide gift or gifts, provided that the donee or donees thereof agree to be
bound by the restrictions set forth herein, (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned,
provided that the trustee of the trust agrees to be bound by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value, (iii) as a bona fide loan transaction that creates a
mere security interest in such shares of Common Stock or Beneficially Owned
Shares, provided that the pledgee or pledgees thereof agree to be bound by the
restrictions set forth herein, or (iv) with the prior written consent of XX
Xxxxx on behalf of the Underwriters. For purposes of this Lock-Up Agreement,
"immediate family" shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin. In addition, notwithstanding the foregoing
covenants, if the undersigned is a corporation, the corporation may transfer its
shares of Common Stock or Beneficially Owned Shares to any subsidiary, parent,
or other affiliate of such corporation; provided, however, that in any such
case, it shall be a condition to the transfer that the transferee execute an
agreement stating that the transferee is receiving and holding such shares of
Common Stock or Beneficially Owned Stock subject to the provisions of this
Lock-Up Agreement, and provided further that any such transfer shall not involve
a disposition for value.
In order to enable the aforesaid covenants to be enforced, the
undersigned hereby consents to the placing of legends and/or stop-transfer
orders with the transfer agent of the Common Stock with respect to any shares of
Common Stock or Beneficially Owned Shares.
Anything contained herein to the contrary notwithstanding, any person
to whom shares of Common Stock or Beneficially Owned Shares are transferred from
the undersigned shall be bound by the terms of this Lock-Up Agreement.
Whether or not the public offering actually occurs depends on a number
of factors, including market conditions. Any public offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
___________________________________
(Signature of Stockholder)
___________________________________
(Print or Type Name of Stockholder)
I-D-2
