EXHIBIT 1.1
DRAFT of 6/4/98
3,000,000 Shares
V.I. TECHNOLOGIES, INC.
Common Stock
UNDERWRITING AGREEMENT
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June 9, 1998
XXXXX & COMPANY
SBC WARBURG DILLON READ INC.
As Representatives of the several Underwriters
x/x Xxxxx & Xxxxxxx
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
1. Introductory. V.I. Technologies, Inc., a Delaware corporation (the
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"Company" or "Vitex"), proposes to sell, pursuant to the terms of this
Agreement, to the several underwriters named in Schedule A hereto (the
"Underwriters," or, each, an "Underwriter"), an aggregate of 3,000,000
shares of common stock, par value $.01 per share (the "Common Stock") of the
Company. The aggregate of 3,000,000 shares so proposed to be sold is
hereinafter referred to as the "Firm Stock". The Company also proposes to
sell to the Underwriters, upon the terms and conditions set forth in Section
3 hereof, up to an additional 450,000 shares of Common Stock (the "Optional
Stock"). The Firm Stock and the Optional Stock are hereinafter collectively
referred to as the "Stock". Xxxxx & Company ("Cowen") and SBC Warburg Dillon
Read Inc. are acting as representatives of the several Underwriters and in
such capacity are hereinafter referred to as the "Representatives".
2. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-46933) in the form
in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective
with respect to the Stock, including any pre-effective prospectuses
included as part of the registration statement as originally filed or
as part of any amendment or supplement thereto, or filed pursuant to
Rule 424 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,
copies
of which have heretofore been delivered to you, has been prepared by
the Company in conformity with the requirements of the Securities Act
and has been filed with the Commission under the Securities Act. If it
is contemplated, at the time this Agreement is executed, that a post-
effective amendment to the registration statement will be filed and
must be declared effective before the offering of the Stock may
commence, the term "Registration Statement" as used in this Agreement
means the registration statement as amended by said post-effective
amendment. The term "Registration Statement" as used in this Agreement
shall also include any registration statement relating to the Stock
that is filed and declared effective pursuant to Rule 462(b) under the
Securities Act. The term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement, or,
(A) if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Securities Act and such
information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act, the term "Prospectus"
as used in this Agreement means the prospectus in the form included in
the Registration Statement as supplemented by the addition of the Rule
430A information contained in the prospectus filed with the Commission
pursuant to Rule 424(b) and (B) 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 effective
upon 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.
(b) The Commission has not issued or threatened to issue any order
preventing or suspending the use of any Pre-effective Prospectus, and,
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 all times subsequent thereto up to and including each
of the Closing Dates (as hereinafter defined), the Registration
Statement and the Prospectus and any amendments or supplements thereto
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
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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 or on behalf of any Underwriter, directly or through you,
specifically for use in the preparation thereof; there is no franchise,
lease, contract, agreement or document or legal or governmental
proceeding required 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 franchises, leases, contracts, agreements or
documents, of the Company's Certificate of Incorporation and By-laws,
and of laws, rules, regulations, orders, judgments and decrees
contained in the Registration Statement are accurate and complete
descriptions of such documents in all material respects and fairly
present the information required to be shown.
(c) Subsequent to the respective dates as of which information is given in
the Registration Statement and Prospectus, and except as set forth or
contemplated in the Prospectus, the Company has not incurred any
liabilities or obligations, direct or contingent, nor entered into any
transactions not in the ordinary course of business, and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition
(financial or otherwise), properties, business, management, prospects,
net worth or results of operations of the Company or any change in the
capital stock, short-term or long-term debt of the Company.
(d) 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 condition, results of operations
and changes in financial condition of the Company at the respective
dates or for the respective periods therein specified. Such statements
of the Company 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
under the captions "Prospectus Summary --Summary Financial Data,"
"Capitalization," "Dilution," "Selected Financial Information,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Management -- Executive Compensation,"
"Certain Transactions," "Principal Stockholders" and "Shares Eligible
for Future Sale" fairly present, on the basis stated in the
Registration Statement, the information set forth therein.
(e) KPMG Peat Marwick LLP, who have expressed their opinions on the audited
financial statements of the Company included in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
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(f) The Company has been duly organized and is validly existing and in good
standing as a corporation under the laws of its jurisdiction of
organization, with power and authority (corporate and other) to own or
lease its properties and to conduct its business as described in the
Prospectus; the Company is in possession of and operating in compliance
with all material franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders required for the
conduct of its business, all of which are valid and in full force and
effect; and the Company is duly qualified to do business and in good
standing as a foreign corporation in all other jurisdictions where its
ownership or leasing of properties or the conduct of its business
requires such qualification, except in such jurisdictions where the
failure to be so qualified would not individually or in the aggregate
have a material adverse effect on the business or financial condition
of the Company. The Company has all requisite power and authority, and
all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all
public regulatory or governmental agencies and bodies to own, lease and
operate its properties and conduct its business as now being conducted
and as described in the Registration Statement and the Prospectus, 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.
(g) 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 to the description thereof in the
Prospectus and have been duly and validly authorized and 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, except as disclosed in the Prospectus, subject to any preemptive
rights or similar rights to subscribe for or purchase securities and
conform to the description thereof contained in the Prospectus. 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.
(h) The 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 not
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be subject to any restrictions upon voting or transfer other than as
described in the Prospectus. The Stock conforms to the description
thereof contained in the Prospectus, and such description conforms to
the rights set forth in the instruments defining the same.
(i) Except as set forth in the Prospectus, there are no legal or
governmental actions, suits, proceedings or claims pending to which the
Company is a party or of which any property of the Company is subject,
which, if determined adversely to the Company might individually or in
the aggregate (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 in the condition (financial or otherwise), properties,
business, management, prospects, net worth or results of operations of
the Company 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 by
governmental authorities or others, including, without limitation, any
pending or threatened legal or governmental proceeding relating to
antitrust matters, to which the Company is a party or might be a party
or of which the business or property of the Company is or might be, the
subject of which, if adversely decided, would individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise) or earnings of the Company. 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 which, in each case, specifically names the Company. The
description of the Company's litigation under the heading "Legal
Proceedings" is true and correct and complies with the Rules and
Regulations.
(j) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute a
summary of the terms of the capital stock, or under the captions
"Management," "Certain Transactions," "Principal Stockholders" and
"Shares Eligible for Future Sale," insofar as they purport to describe
the provisions of the documents referred to therein, are accurate and
complete in all material respects.
(k) The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated 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,
note, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company is a party or by which it or any of its
properties is or may be bound, the Certificate of Incorporation, By-
laws or other organizational documents of the Company or any law,
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties and do
not and will not result in the creation of any lien against such
properties.
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(l) The Company is not, or with notice or lapse of time or both will not
be, in violation of or in default under its Certificate of
Incorporation or By-laws or other organizational documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
note, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound.
(m) 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 Stock by the Underwriters.
(n) 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 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 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.
(o) The Company is in all material respects in compliance with, and
conducts its business in conformity with all applicable federal, state,
local and foreign laws, rules and regulations or any court or
governmental agency or body; 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 have a
material adverse effect on the operations of the Company. Except as
disclosed in the Registration Statement, the Company is in compliance
with all applicable existing 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 ("Environmental Laws"), except for
such instances of noncompliance which, either singly or in the
aggregate, would not have a material adverse effect. The term
"Hazardous Material" means (i) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (ii) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (iii) any petroleum
or petroleum product, (iv) any polychlorinated biphenyl and (v) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning of
any other Environmental Law.
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(p) The Company has filed all necessary federal, state, local and foreign
income, payroll, franchise and other tax returns and has paid all taxes
shown as due thereon or with respect to any of its properties, 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 its properties
or assets that would adversely affect the financial position, business
or operations of the Company.
(q) Except as disclosed in the Registration Statement and Prospectus 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.
(r) Neither the Company nor any of its officers, directors or affiliates
will take, directly or indirectly, any action designed or intended to
stabilize or manipulate the price of any security of the Company 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.
(s) The Company has provided you with all financial statements since
December 31, 1997 to the date hereof[, including financial statements
for the months of January and February of 1998,] that are available to
the officers of the Company].
(t) The Company owns or possesses the right to use all patents, trademarks,
trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets, know-how
and rights described in the Prospectus as being owned by it or
necessary for the conduct of its business, and, except as disclosed in
the Prospectus, 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 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 or other intellectual
property right or franchise right of any person.
(u) The Company has performed all material obligations required to be
performed by it under all contracts required by Item 601(b)(10) of
Regulation S-K under the Securities Act to be filed as exhibits to the
Registration Statement, and neither the Company nor any other party to
such contract is in default under or in breach of any such obligations.
The Company has not received any notice of such default or breach.
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(v) The Company is not involved in any labor dispute nor is any such
dispute threatened. The Company is not aware that (A) any executive,
key employee or significant group of employees of the Company plans to
terminate employment with the Company or (B) 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 proposed business activities of the Company. The Company
does not have nor does it expect to have any 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 makes or ever
has made a contribution and in which any employee of the Company is or
has ever been a participant. With respect to such plans, the Company is
in compliance in all material respects with all applicable provisions
of ERISA.
(w) The Company has obtained the written agreement described in Section
8(n) of this Agreement from each of its officers, directors and holders
of Common Stock listed on Schedule B hereto.
(x) The Company has, and the Company as of the Closing Date will have, good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned or proposed to be owned
by it which is material to the business of the Company, 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 have a material
adverse effect on the Company; and any real property and buildings held
under lease by the Company or proposed to be held after giving effect
to the transactions described in the Prospectus are, or will be as of
each of the Closing Dates, held by it under valid, subsisting and
enforceable leases with such exceptions as would not have a material
adverse effect on the Company, in each case except as described in or
contemplated by the Prospectus.
(y) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the business in which it is engaged or proposes to be
engaged after giving effect to the transactions described in the
Prospectus; and the Company does not have 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 its business at a cost that
would not materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the Company,
except as described in or contemplated by the Prospectus.
(z) Other than as contemplated by this Agreement, there is no broker,
finder or other party that is entitled to receive from the Company any
brokerage or finder's fee or other fee or commission as a result of any
of the transactions contemplated by this Agreement.
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(aa) The Company maintains 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.
(bb) To the Company's knowledge, neither it nor any employee or agent of the
Company has made any payment of funds of the Company 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.
(cc) The Company is not or, after application of the net proceeds of this
offering as described under the caption "Use of Proceeds" in the
Prospectus, will not 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. The Company intends to
conduct its affairs in a manner such that it will not become an entity
required to register as an "investment company" subject to regulation
under the Investment Company Act.
(dd) The Common Stock has been approved for quotation and trading on the
Nasdaq National Market, subject to official notice of issuance.
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.
3. Purchase by, and Sale and Delivery to, Underwriters--Closing Dates. The
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Company agrees to sell to the Underwriters the Firm Stock on the basis of
the representations, warranties, covenants and agreements herein contained,
but subject to the terms and conditions herein set forth, and the
Underwriters agree, severally and not jointly, to purchase the Firm Stock
from the Company, the number of shares of Firm Stock to be purchased by each
Underwriter being set forth opposite its name in Schedule A, subject to
adjustment in accordance with Section 12 hereof.
The purchase price per share to be paid by the Underwriters to the Company
will be the price per share set forth in the table on the cover page of the
Prospectus under the heading "Proceeds to the Company" (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
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is received, in the names of the respective Underwriters or in such other
names as Cowen may designate (solely for the purpose of administrative
convenience) and in such denominations as Cowen 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),
payable to the order of the Company, all at the offices of Xxxxx & Xxxx llp,
Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time and date of the
delivery and closing shall be at 10 A.M., New York Time, on June 12, 1998,
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 between among the
Company and Cowen. The First Closing Date may be postponed pursuant to the
provisions of Section 12.
The Company shall make the certificates for the 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 Xxxxx & Company, Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
It is understood that Cowen or SBC Warburg Dillon Read Inc., individually
and not as Representatives 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 Stock to be purchased by such Underwriter or
Underwriters. Any such payment by Cowen or SBC Warburg Dillon Read Inc.
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.
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, an aggregate of up to 450,000 shares. 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 Cowen to the Company setting forth the number of shares
of the Optional Stock to be purchased by them 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
10
days after written notice is given. (The Option Closing Date and the First
Closing Date are herein called the "Closing Dates".) 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 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 Cowen may
designate (solely for the purpose of administrative convenience) and in such
denominations as Cowen may determine, against payment of the aggregate
Purchase Price therefor by certified or official bank check or checks in
Clearing House funds (next day funds), payable to the order of the Company
all at the offices of Xxxxx & Wood llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. The Company shall make the certificates for the Optional
Stock available to the Underwriters for examination not later than 10:00
A.M., New York Time, on the business day preceding the Option Closing Date
at the offices of Xxxxx & Company, Xxxxxxxxx Xxxxxx, 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 between the
Company and Cowen. 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
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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 of the Rules and
Regulations, use its best efforts to cause the Registration Statement
to become effective as soon as practicable after the execution of this
Agreement, (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 Prospectuses pursuant to Rule 434 of the
Rules and Regulations, to 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
11
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 necessary to enable the several Underwriters
to continue the distribution of the 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 Stock is required to be delivered
under the Securities Act any event relating to or affecting the Company
occurs as a result of which the Prospectus or any other prospectus as
then in effect 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 it is necessary at any time to amend the Prospectus
to comply with the Securities Act, the Company will promptly notify the
Representatives thereof and will prepare an amended or supplemented
prospectus which will correct such statement or omission; and in case
any Underwriter is required to deliver a prospectus relating to the
Stock nine (9) months or more after the effective date of the
Registration Statement, the Company upon the request of the
Representatives and at the expense of such Underwriter will prepare
promptly such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Securities
Act.
(d) The Company will deliver to the Representatives, at or before the
Closing Date, signed copies of the Registration Statement, as
originally filed with the Commission, and 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 Stock
is required under the Securities Act, as many copies of the Prospectus,
in
12
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 stockholders as soon
as practicable, but not later than fifteen (15) months after the
effective date of the Registration Statement, an earnings 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 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 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 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 Stock to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for the
distribution of the 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.
(g) As and when required by the Rules and Regulations, the Company will
furnish to its stockholders annual reports containing financial
statements certified by independent public accountants. During the
period of five (5) years from the date hereof, the Company will deliver
to the Representatives and, upon request, to each of the Underwriters:
(i) as soon as practicable after the end of each fiscal year, copies of
each annual report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income,
stockholders' equity and cash flows for the year then ended and the
opinion thereon of the Company's independent public accountants, and
each other report furnished by the Company to its stockholders; (ii)
copies of any other reports (financial or other) which the Company
shall publish or otherwise make available to any of its stockholders as
such; and (iii) as soon as practicable after the filing
13
thereof, each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Report on Form 8-K or other report or information
or financial statement filed by the Company with the Commission, or the
NASD or any securities exchange.
(h) The Company will use its best efforts to maintain the listing of the
Stock on the Nasdaq National Market for a period of five (5) years
after the effective date of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar for its Common
Stock.
(j) For so long as a prospectus relating to the Stock is required to be
delivered under the Securities Act, 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.
(k) The Company will not offer, sell, assign, transfer, encumber, contract
to sell, grant an option to purchase or otherwise dispose of any shares
of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock (including, without limitation, Common
Stock of the Company which may be deemed to be beneficially owned by
the Company in accordance with the Rules and Regulations) during the
180 days following the date on which the price of the Common Stock to
be purchased by the Underwriters is set, other than (i) the Company's
sale of Common Stock hereunder, (ii) 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 (iii) the
issuance by the Company of any option to purchase any shares of Common
Stock pursuant to its option plans described in the Prospectus.
(l) The Company will apply the net proceeds from the sale of the 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.
(m) The Company will supply you with copies of all correspondence to and
from, and all documents issued to and by, the Commission in connection
with the registration of the Stock under the Securities Act.
(n) Prior to each of the Closing Dates the Company will furnish to you, as
soon as they have been prepared, copies of any unaudited interim
consolidated financial statements of the Company for any periods
subsequent to the periods covered by the financial statements appearing
in the Registration Statement and the Prospectus.
(o) 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 with respect to the Company, the financial condition,
results of operations, business,
14
prospects, assets or liabilities of the Company, or the offering of the
Stock, without prior written notice to you. For so long as a prospectus
relating to the Stock is required to be delivered under the Securities
Act, the Company will use its best efforts to provide to you 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 Stock to the Representatives; (ii) all expenses
incident to the registration of the 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 Stock; (v) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the 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 related fees and
expenses of counsel to the Underwriters with respect to the Blue Sky
memoranda) 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 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; and (x) all
other costs and expenses incident to the performance of their
obligations hereunder which are not otherwise specifically provided for
in this Section.
(b) In addition to their 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, they will reimburse each Underwriter 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
15
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 _______, New York, New York
(the "Prime Rate"). Any such interim reimbursement payments which are
not made to an Underwriter in a timely manner as provided below 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 information furnished to the Company pursuant to
Section 6(b) hereof, it will reimburse the Company (and, to the extent
applicable, each officer, director or controlling person) 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 officer, director or controlling person) 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
officer, director or controlling person) 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 indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(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
[Rules and Regulations of the American Arbitration Association]. 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
16
arbitration would be limited to the operation of the interim
reimbursement provisions contained in paragraph (b) and/or (c) 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 Underwriter
(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 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 was made in
reliance upon, and in conformity with, written information furnished to
the Company by any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof or
(ii) for any act or failure to act or any alleged act or failure to act
by any Underwriter in connection with, or relating in any manner to,
the Stock or the offering contemplated hereby, and 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 clause (i) above
(provided that the Company shall not be liable under this clause (ii)
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, that with respect to any
untrue statement or omission or alleged untrue statement or omission
made in any Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any
Underwriter Indemnified Party from whom the person asserting any such
losses, claims, damages or liabilities purchased the shares of Common
Stock concerned to the extent that any such loss, claim, damage or
liability of such Underwriter Indemnified Party results from the fact
that a copy of the Prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such shares of
Common Stock to such person as required by the Securities Act and if
the untrue statement or omission concerned has been corrected in the
Prospectus; 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
17
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 will 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. 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 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 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 and supplemented)
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 was made in reliance upon, and in conformity with, written
information furnished to the Company by such Underwriter, 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
18
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. 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,
shall bear the fees and expenses of any additional 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 herein, 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 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 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 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 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 contribution were
determined by pro rata allocation (even if the Underwriters were
treated as one
19
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 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 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 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 their 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.
20
(b) The Representatives shall have been satisfied that there shall not have
occurred any change, on a consolidated basis, prior to each of the
Closing Dates in the condition (financial or otherwise), properties,
business, management, prospects, net worth or results of operations of
the Company, or any change in the capital stock, short-term or long-
term debt of the Company, 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 unpracticable
in the reasonable judgment of the Representatives to proceed with the
public offering or purchase the 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 respective 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 KPMG Peat Marwick LLP, independent certified public
accountants, a letter, dated the date hereof, in form and substance
satisfactory to the Underwriters.
(e) The Representatives shall have received from KPMG Peat Marwick LLP,
independent certified public accountants, letters, dated each the
Closing Dates, to the effect that such accountants reaffirm, as of each
of the Closing Dates, and as though made on each of the Closing Dates,
the statements made in the letter furnished by such accountants
pursuant to paragraph (d) of this Section 8.
(f) The Representatives shall have received from Xxxxxx & Dodge LLP,
counsel for the Company, opinions, dated each of the Closing Dates, to
the effect set forth in Exhibit I hereto.
(g) The Representatives shall have received from Xxxxxx, Xxxxxxxxx &
Xxxxxxxxx, patent counsel for the Company, opinions, dated each of the
Closing Dates, to the effect set forth in Exhibit II hereto.
(h) The Representatives shall have received from Xxxxxxx, Del Deo, Dolan,
Griffinger & Xxxxxxxxx, special antitrust counsel for the Company,
opinions, dated each of the Closing Dates, with respect to such matters
and in such form as the Underwriters may reasonably request.
(i) The Representatives shall have received from Xxxxx & Wood llp, counsel
for the Underwriters, their opinions dated each of the Closing Dates
with respect to the incorporation of the Company, the validity of the
Stock, the Registration
21
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.
(j) The Representatives shall have received certificates, dated each of the
Closing Dates, of the chief executive officer or the President and the
chief financial or accounting officer of the Company to the effect
that:
(i) No stop order suspending the effectiveness of the Registration
Statement has been issued, and, to the best of the knowledge of the
signers, no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act;
(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) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except
as set forth or contemplated in the Prospectus, the Company has not
incurred any material liabilities or obligations, direct or
contingent, and has not entered into any material transactions not
in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise),
properties, business, management, prospects, net worth or results
of operations of the Company, or any change in the capital stock,
short-term or long-term debt of the Company;
(iv) The representations and warranties of the Company in this Agreement
are true and correct at and as of each of the Closing Dates, and
the Company has complied with all the agreements and performed or
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Dates; and
(v) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as disclosed
in or contemplated by the Prospectus, (i) there has not been any
material adverse change or a development involving a material
adverse change in the condition (financial or otherwise),
properties, business, management, prospects, net worth or results
of operations of the Company; (ii) the business and operations
conducted by the Company 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
22
the business and operations of the Company; (iii) no legal or
governmental action, suit or proceeding is pending or 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, including without limitation any
pending or threatened legal or governmental proceeding relating to
antitrust matters; (iv) since such dates and except as so
disclosed, the Company has not incurred any material liability or
obligation, direct, contingent or indirect, made any change in its
capital stock (except pursuant to its stock plans), made any
material change in its short-term or funded debt or repurchased or
otherwise acquired any of the Company's capital stock; and (v) 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 Date .
(k) 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 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 their 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.
(l) Cowen shall have received the written agreements, substantially in the
form of Exhibit IV hereto, of the officers, directors and holders of
Common Stock listed in Schedule B that each will not offer, sell,
assign, transfer, encumber, contract to sell, grant an option to
purchase or otherwise dispose of any shares of Common Stock (including,
without limitation, Common Stock which may be deemed to be beneficially
owned by such officer, director or holder in accordance with the Rules
and Regulations) during the 180 days following the date of the final
Prospectus.
(m) The Nasdaq National Market shall have approved the stock for listing,
subject only to official notice of issuance.
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 Cowen, on behalf of the Representatives, shall be entitled to
waive any of such conditions.
23
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 Stock for sale to the public. For the purposes of this Section
9, the Stock shall be deemed to have been so released upon the release for
publication of any newspaper advertisement relating to the Stock or upon the
release by you of telegrams (i) advising Underwriters that the shares of
Stock are released for public offering or (ii) offering the 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 any of the New York Stock Exchange,
American Stock Exchange, Nasdaq National Market System, Chicago Board of
Options Exchange, Chicago Mercantile Exchange or Chicago Board of Trade
shall have been suspended or minimum or maximum prices shall have been
established on any such 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
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 the transactions
contemplated by this Agreement, which, in the judgment of the
Representatives, makes it impracticable or inadvisable to offer or deliver
the 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 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 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
24
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 their
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 Stock,
and promptly upon demand the Company will pay such amounts to you as
Representatives.
12. Substitution of Underwriters. If any Underwriter or Underwriters shall
----------------------------
default in its or their obligations to purchase shares of 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 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 telegraphed and confirmed to
you, as their Representatives c/o Cowen & Company at Xxxxxxxxx Xxxxxx, 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 telegraphed and confirmed c/o V.I. Technologies, Inc., 000
Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000.
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
25
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 person or persons, if any, who control any Underwriter or
Underwriters within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the indemnities of the several
Underwriters shall also be for the benefit of each director of the Company,
each of its officers who has signed the Registration Statement and the
person or persons, if any, who control the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act.
15. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York.
16. Authority of the Representatives. In connection with this Agreement, you
--------------------------------
will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by Cowen, as Representative, 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.
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.
26
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,
V.I. TECHNOLOGIES, INC.
By:________________________________
President and Chief Executive Officer
Accepted and delivered in
New York, New York as of
the date first above written.
XXXXX & COMPANY
SBC WARBURG DILLON READ INC.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: XXXXX & COMPANY
By: Cowen Incorporated,
its general partner
By: ______________________________
Xxxx X. Xxxxxx
Managing Director - Syndicate
27
SCHEDULE A
Number of Shares Number of Shares
of Firm Stock to of Optional Stock
Name be Purchased to be Purchased
------------------------------------------------- --------------------- ---------------------
Xxxxx & Company..................................
SBC Warburg Dillon Read Inc......................
--------------------- ---------------------
3,000,000 450,000
===================== =====================
28
SCHEDULE B
Persons Providing Lock-Up Agreements Pursuant to Section 8(n)
[TO COME]
Exhibit I
Form of Opinion of Issuer's Counsel
[Date]
Xxxxx & Company
SBC Warburg Dillon Read Inc.
As representatives of the several
Underwriters named in Schedule A
x/x Xxxxx & Xxxxxxx
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: V.I. Technologies, Inc.
3,000,000 Shares of Common Stock
--------------------------------
Dear Ladies and Gentlemen:
We have acted as counsel for V.I. Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company and
purchase of 3,000,000 shares of Common Stock, par value $.01 per share, of the
Company (the "Shares") by the several Underwriters listed in Schedule A to the
Underwriting Agreement, dated June 9, 1998 among the Company, Xxxxx & Company
and SBC Warburg Dillon Read, Inc., 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 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
power and authority necessary to own or hold its properties and conduct the
business in which it is engaged;
2. The Company has an authorized capitalization as set forth in the Prospectus,
and all of the issued shares of capital stock off the Company have been duly and
validly authorized and issued, 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 issued, fully paid and non-assessable;
30
3. 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 By-Laws or any agreement or other
instrument;
4. There are no legal or governmental proceedings pending to which the Company
is a party or of which any property or assets of the Company is the subject
which, if determined adversely to the Company, could have a material adverse
effect on the Company; and, to the best of our knowledge, no such proceedings
are threatened or contemplated by governmental authorities or other third
parties;
5. 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;
6. The Company has, and the Company 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 or proposed to be owned by it which is
material to the business of the Company, in each case free and clear of all
liens, encumbrances and defects; and any real property and buildings held under
lease by the Company or proposed to be held after giving effect to the
transactions described in the Prospectus are, or will be as of the Closing
Dates, held by it under valid, subsisting and enforceable leases with such
exceptions as would not have a material adverse effect on the Company;
7. 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 and is a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that rights to indemnification
and contribution thereunder may be limited by federal or state securities laws
or the public policy underlying such laws;
8. The execution, delivery and performance of the Underwriting Agreement and
the consummation of the transactions therein contemplated 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 to which the Company is a party or by which it or its properties
are or may be bound, the Certificate of Incorporation, By-laws or other
organizational documents of the Company, or any law, order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company
or its properties or result in the creation of a lien;
31
9. 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;
10. The Company is in compliance with, and conducts its business 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; to the best of 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 have a material adverse effect on the
operations of the Company. 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 (as defined in the
Underwriting Agreement);
11. The Registration Statement was declared effective under the Securities Act
as of __________, 1998, the Prospectus was filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations on __________, 1998 and no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose is pending or, to the best of our knowledge,
threatened by the Commission;
12. The Registration Statement and the Prospectus and any amendments or
supplements thereto comply as to form in all respects with the requirements of
the Securities Act and the Rules and Regulations and the documents incorporated
by reference in the Prospectus, when they became effective or were filed with
the Commission, as the case may be, complied as to form in all respects with the
requirements of the Securities Act or the Exchange Act, as applicable, and the
Rules and Regulations; and any amendment or supplement to any such incorporated
document, when they became effective or were filed with the Commission, as the
case may be, complied as to form in all respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules and
Regulations;
13. To the best of 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;
14. Other than as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right (other than rights which have been waived or satisfied) 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
32
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;
15. The descriptions in the Registration Statement and Prospectus of statutes,
rules, regulations, legal or governmental proceedings, contracts and other
documents are accurate and such descriptions fairly present 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;
16. The statements under the captions "Risk Factors"; and "Business-Government
Regulation", to the extent they reflect matters of federal law arising under the
laws of the United States or legal conclusions relating to such law, accurately
summarize and fairly present the legal and regulatory matters described therein;
and
17. The Company is not, and will not 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.
The foregoing opinion is limited to matters governed by the Federal laws of
the United States of America, the general corporate law of the State of Delaware
and the laws of the State of Massachusetts.
We have acted as counsel to the Company on a regular basis, have acted as
counsel to the Company in connection with previous financing transactions and
have acted as counsel to the Company in connection with the preparation and
filing of the Registration Statement and the Prospectus, and based on the
foregoing, no facts have come to our attention which lead us to believe that (i)
the Registration Statement or any amendment thereto, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a 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 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 or (ii) any document
incorporated by reference in the Prospectus or any amendment or supplement to
any such incorporated document made by the Company, when they became effective
or were filed with the Commission, as the case may be, contained, in the case of
a registration statement which became effective under the Securities Act, any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or, in the case of documents filed under the Exchange Act with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Very truly yours,
33
Exhibit II
Form of Opinion of Patent Counsel to the Company
This opinion is being furnished to you in accordance with Section 8(h) of
the Underwriting Agreement (the "Underwriting Agreement"), dated June 9, 1998,
among V. I. Technologies, Inc. (the "Company") and Xxxxx & Company, SBC Warburg
Dillon Read Inc., as representatives of the several underwriters named in
Schedule A thereto.
1. The statements included in the Prospectus under the captions "Risk Factors--
Uncertainty of Proprietary Technologies and Patents" and "Business--Patents,
Licenses and Proprietary Rights," in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings referred to
therein, fairly and accurately present the information called for with respect
to such legal matters, documents and proceedings and fairly and accurately
summarize the matters referred to therein;
2. Except as disclosed in the Prospectus, we do not know of any pending or
threatened legal or governmental proceeding relating to patents, patent
applications or proprietary information rights owned or used by the Company, to
which the Company is a party or might be a party or of which the business or
property of the Company is or might be, the subject which, if adversely decided,
would individually or in the aggregate have a material adverse effect on the
business, condition (financial or otherwise) or results of operations of
theCompany.
3. Except as disclosed in the Prospectus, we have no knowledge of any
infringement or alleged infringement by the Company of patent, trademark,
service xxxx, tradename, copyright license or other intellectual property rights
owned by others, which if adversely decided, would individually or in the
aggregate, have a material adverse effect on the business, condition (financial
or otherwise) or results of operations of the Company.
4. To the best of our knowledge, the Company owns or has the right to use all
patents, trademarks, service marks, tradenames, copyrights, licenses and other
rights and all know-how (including trade secrets and other unpatented and/or
proprietary or confidential information, systems or procedures) which are
identified in the Prospectus as being owned by or licensed to the Company or
necessary for the operation of its business as presently conducted as described
in the Prospectus, except for any patents, trademarks, service marks,
tradenames, copyrights, licenses and other rights and know-how, the absence of
which would not individually or in the aggregate have a material adverse effect
on the business, condition (financial or otherwise) or results of operations of
the Company.
5. Based on the information brought to such counsel's attention with respect to
the investigation of the published literature and patent references relating to,
and the identities of the inventors of, the inventions claimed in the patent
applications filed with the United States Patent and Trademark Office (the
"USPTO") in respect of which the United States Letters Patent owned or used by
the Company have been granted and the pending patent applications claiming
inventions owned or used by the Company, all references and inventor identities
required to be
34
submitted to the USPTO were so submitted; to the best of such counsel's
knowledge, all information submitted to the USPTO in such patent applications,
and in connection with the prosecution thereof, was accurate; neither such
counsel, nor to the best of its knowledge, the respective inventors named in or
assignees of such patent applications or patents granted in respect thereof,
made any misrepresentation or concealed any material information from the USPTO
in any such patent application, or in connection with the prosecution thereof.
35
Exhibit IV
Form of Lock-Up Agreement
_____________, 1998
Xxxxx & Company
SBC Warburg Dillon Read Inc.
As Representatives of the
Several Underwriters
c/o Cowen & Company
Xxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: V.I. Technologies, Inc.
-----------------------
Dear Ladies and Gentlemen:
In order to induce Xxxxx & Company ("Cowen") and SBC Warburg Dillon Read
Inc. (together with Cowen, the "Representatives"), to enter into a certain
underwriting agreement with V.I. Technologies, Inc., a Delaware corporation (the
"Company"), with respect to the public offering of shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), the undersigned
hereby agrees that, except as set forth below, 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 (the
"Final Prospectus"), the undersigned will not, without the prior written consent
of Cowen, directly or indirectly, offer, sell, assign, transfer, encumber,
pledge, contract to sell, grant an option to purchase or otherwise dispose of,
other than by operation of law, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for shares of Common Stock,
including, without limitation, options, warrants and the like, which are owned
either of record or beneficially by the undersigned as of the date of this
letter or acquired on or prior to the date of effectiveness of the Company's
Registration Statement on Form S-1, or are received upon the exercise of
options, warrants and the like held by the undersigned on such dates
(collectively, the "Securities").
Anything contained herein to the contrary notwithstanding, any person to
whom Securities are transferred from the undersigned shall be bound by the terms
of this Agreement.
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 1933, as amended, of any
36
shares of Common Stock that are registered in the name of the undersigned or
that are beneficially owned by the undersigned.
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 Securities.
[Signatory]
By:_______________________________
Name:
Title:
37
