EXHIBIT 1.2
__________ Shares
TULARIK INC.
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
------------------------------------
__________, 1999
Xxxxxx Brothers Inc.
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Inc.
Warburg Dillon Read LLC
As Lead Managers of the several
International Managers named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Tularik Inc., a Delaware corporation (the "Company"), proposes to sell
_______ shares (the "Firm Stock") of the Company's Common Stock, par value
$0.001 per share (the "Common Stock"). In addition, the Company proposes to
grant to the International Managers named in Schedule 1 hereto (the
"International Managers") an option to purchase up to an additional _______
shares of the Common Stock on the terms and for the purposes set forth in
Section 2 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock." This is to confirm
the agreement concerning the purchase of the Stock from the Company by the
International Managers.
It is understood by all parties that the Company is concurrently
entering into an agreement dated the date hereof (the "U.S. Underwriting
Agreement") providing for the sale by the Company of _______ shares of Common
Stock (including the over-allotment option thereunder) (the "U.S. Stock")
through arrangements with certain underwriters inside the United States (the
"U.S. Underwriters"), for whom Xxxxxx Brothers Inc., Xxxxxxxxx & Xxxxx LLC, X.X.
Xxxxxx Securities Inc. and Warburg Dillon Read LLC, are acting as
representatives. The U.S. Underwriters and the International Managers
simultaneously are entering into an agreement between the U.S. and international
underwriting syndicates (the "Agreement Between U.S. Underwriters and
International Managers") which provides for, among other things, the transfer of
shares of Common Stock between the two syndicates. One form of prospectus will
be used in connection with the offering and sale of shares of Common Stock
contemplated by the foregoing relating both to the
Stock and to the International Stock. Except as used in Sections 2, 3, 4, 9 and
10 herein, and except as the context may otherwise require, references herein to
the Stock shall include all the shares of the Common Stock which may be sold
pursuant to either this Agreement or the U.S. Underwriting Agreement.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 with respect to the
Stock has (i) been prepared by the Company in conformity with the
requirements of the United States Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act. Copies of such registration statement have been
delivered by the Company to you as the lead managers (the "Lead
Managers") of the International Managers. As used in this Agreement,
"Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus"
means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities
Act and any prospectus filed with the Commission by the Company with
the consent of the Lead Managers pursuant to Rule 424(a) of the Rules
and Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with Section
5 hereof and deemed to be a part of the registration statement as of
the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4) of
Rule 424(b) of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus or any
further amendments to the Registration Statement or Prospectus, in
reliance upon and in conformity with written
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information furnished to the Company through the Lead Managers by or
on behalf of any International Manager specifically for inclusion
therein.
(c) The Company and Amplicon Corp., a Delaware corporation (the
"Subsidiary"), have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the business, financial condition or results of operations
of the Company, and have all power and authority necessary to own or
hold their respective properties and to conduct business as described
in the Registration Statement and Prospectus; and the Subsidiary of
the Company is not a "significant subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations. The Company has no
subsidiaries (as defined in Section 15), other than the Subsidiary.
(d) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) The unissued shares of the Stock to be issued and sold by
the Company to the International Underwriters hereunder and under the
U.S. Underwriting Agreement have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein
and in the U.S. Underwriting Agreement, will be duly and validly
issued, fully paid and non-assessable; and the Stock will conform to
the description thereof contained in the Prospectus.
(f) Each of this Agreement and the U.S. Underwriting Agreement
has been duly authorized, executed and delivered by the Company.
(g) The execution, delivery and performance of this Agreement
and the U.S. Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or the Subsidiary is a party or by
which the Company or the Subsidiary is bound or to which any of the
property or assets of the Company or the Subsidiary is subject, nor
will such actions result in any violation of the provisions of the
charter or bylaws of the Company or the Subsidiary or any statute or
any order, rule or regulation
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of any court or governmental agency or body having jurisdiction over
the Company or the Subsidiary or any of their properties or assets;
and except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Stock by the International Managers and the U.S. Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or the U.S. Underwriting Agreement by the Company and the consummation
of the transactions contemplated hereby and thereby.
(h) 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), with respect to any
securities of the Company owned by such person, to require the Company
to include such securities in the securities registered pursuant to
the Registration Statement. Except as described in the Prospectus,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to register or include securities pursuant to any other
registration statement filed by the Company under the Securities Act.
(i) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(j) Neither the Company nor the Subsidiary has sustained, since
the date of the latest audited financial statements included in the
Prospectus, any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material
change in the capital stock or long-term debt of the Company and the
Subsidiary, taken as a whole, or any material adverse change in, or
any development involving a prospective material adverse change in the
business, financial condition or results of operations of the Company
and the Subsidiary, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been prepared
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in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved.
(l) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and
who have delivered the initial letter referred to in Section 7(g)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(m) The Company and the Subsidiary have good and marketable
title to all personal property owned by them, free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the
Subsidiary; and all real property and buildings held under lease by
the Company and the Subsidiary are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and the Subsidiary.
(n) The Company and the Subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(o) The Company owns or possesses adequate licenses or other
rights to use all patents, patent applications, inventions,
trademarks, trade names, applications for registration of trademarks,
service marks, service xxxx applications, copyrights, know-how,
manufacturing processes, formulae, trade secrets, licenses and rights
in any thereof and any other intangible property and assets (herein
called the "Proprietary Rights") necessary to conduct its business in
the manner described in the Prospectus, except where the failure to so
own or possess such Proprietary Rights would not, singularly or in the
aggregate, have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of
the Company. The Company takes security measures to provide adequate
trade secret protection in its non-patented technology. Except as
disclosed in the Prospectus, the Company has not received any notice
of infringement or conflict with asserted rights of others with
respect to any Proprietary Rights which could result in any material
adverse effect on the Company, and except as specifically identified
and described in the Prospectus, no action, suit, arbitration, or
legal, administrative or other proceeding, or investigation is
pending, or, to the knowledge of the Company, threatened, which
involves any Proprietary Rights. Except as disclosed in the
Prospectus, the Proprietary Rights of the Company referred to in the
Prospectus do not, to the knowledge of the Company, infringe or
conflict with any right or valid and enforceable patent of any third
party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party, known to the
Company which could have a material adverse effect on the Company.
The
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Company is not subject to any judgment, order, writ, injunction or
decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, nor, except
as described in the Prospectus, has it entered into or is a party to
any contract which restricts or impairs the use of any such
Proprietary Rights in a manner which would have a material adverse
effect on the use of any of the Proprietary Rights. The Company has
complied, in all material respects, with its respective contractual
obligations relating to the protection of the Proprietary Rights used
pursuant to licenses. To the knowledge of the Company, no person is
infringing on or violating the Proprietary Rights owned or used by the
Company.
(p) There are no legal or governmental proceedings pending to
which the Company or the Subsidiary is a party or of which any
property or assets of the Company or the Subsidiary is the subject
which, if determined adversely to the Company or the Subsidiary, are
reasonably likely to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and the Subsidiary,
taken as a whole, and to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(q) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations 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.
(r) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described.
(s) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which would
reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and the Subsidiary,
taken as a whole.
(t) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended,
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including the regulations and published interpretations thereunder
(the "Code"); and each "pension plan" for which the Company would have
any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(u) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or the Subsidiary which has had
(nor does the Company have any knowledge of any tax deficiency which,
if determined adversely to the Company or the Subsidiary, would
reasonably be expected to have) a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and the Subsidiary,
taken as a whole.
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction
not in the ordinary course of business or (iv) declared or paid any
dividend on its capital stock.
(w) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(x) Neither the Company nor the Subsidiary (i) is in violation
of its charter or bylaws, (ii) is in default in any material respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in
violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(y) Neither the Company nor the Subsidiary, nor any director or
officer associated with or acting on behalf of the Company or the
Subsidiary, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful
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expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or the Subsidiary (or, to the knowledge of the Company,
any of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or the
Subsidiary in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably
likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and the Subsidiary, taken as a
whole; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous substances
due to or caused by the Company or the Subsidiary or with respect to
which the Company or the Subsidiary have knowledge, except for any
such spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely to
have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the general affairs, management, financial
position or results of operations of the Company and the Subsidiary,
taken as a whole; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state and federal laws or
regulations with respect to environmental protection.
(aa) Neither the Company nor the Subsidiary is an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(bb) The Company has reviewed, and is continuing to review, its
operations and products to evaluate the extent to which the business
or operations of the Company or the Subsidiary will be affected by the
Year 2000 Problem (that is, any significant risk that computer
hardware or software applications used by the Company or the
Subsidiary will not in the case of dates or time periods occurring
after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000); as
a result of such review, (i) the Company has no reason to believe, and
does not believe, that (A) there are any issues related to the
Company's or the Subsidiary's preparedness to address the Year 2000
Problem that are of a character
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required to be described or referred to in the Registration Statement
or Prospectus which have not been accurately described in the
Registration Statement or Prospectus and (B) the Year 2000 Problem
will have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of
the Company and the Subsidiary, taken as a whole, or result in any
material loss or interference with the business or operations of the
Company or the Subsidiary, taken as a whole; and (ii) to the Company's
knowledge, the suppliers, vendors, customers or other material third
parties used or served by the Company or the Subsidiary are addressing
or will address the Year 2000 Problem in a timely manner, except to
the extent that a failure to address the Year 2000 Problem by any
supplier, vendor, customer or material third party would not have a
material adverse effect on the financial position, stockholders'
equity, results of operations, business or prospects of the Company
and the Subsidiary, taken as a whole.
2. Purchase of the Stock by the International Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell __________
shares of the Firm Stock to the several International Underwriters and each of
the International Underwriters, severally and not jointly, agrees to purchase
the number of shares of the Firm Stock set opposite that International
Underwriter's name in Schedule 1 hereto. The respective purchase obligations of
the International Underwriters with respect to the Firm Stock shall be rounded
among the International Underwriters to avoid fractional shares, as the Lead
Managers may determine.
In addition, the Company grants to the International Managers an
option to purchase up to __________ shares of Option Stock. Such option is
granted solely for the purpose of covering over-allotments in the sale of Firm
Stock and is exercisable as provided in Section 4 hereof. Shares of Option
Stock shall be purchased severally for the account of the International Managers
in proportion to the number of shares of Firm Stock set opposite the name of
such International Managers in Schedule 1 hereto. The respective purchase
obligations of each International. Manager with respect to the Option Stock
shall be adjusted by the Lead Managers so that no International Manager shall be
obligated to purchase Option Stock other than in 100 share amounts. The price
of both the Firm Stock and any Option Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Stock to be purchased on such Delivery Date as
provided herein and in the U.S. Underwriting Agreement.
3. Offering of Stock by the International Underwriters.
Upon authorization by the Lead Managers of the release of the Firm
Stock, the several International Underwriters propose to offer the Firm Stock
for sale upon the terms and conditions set forth in the Prospectus.
It is understood that __________ of the shares of the Firm Stock will
initially be reserved by the several International Managers for offer and sale
upon the terms and conditions set
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forth in the Prospectus and in accordance with the rules and regulations of the
National Association of Securities Dealers, Inc. to employees and persons having
business relationships with the Company and the Subsidiary who have heretofore
delivered to the Lead Managers offers to purchase shares of Firm Stock in form
satisfactory to the Lead Managers, and that any allocation of such Firm Stock
among such persons will be made in accordance with timely directions received by
the Lead Managers from the Company; provided, that under no circumstances will
the Lead Managers or any International Manager be liable to the Company or to
any such person for any action taken or omitted in good faith in connection with
such offering to employees and persons having business relationships with the
Company and the Subsidiary. It is further understood that any shares of such
Firm Stock which are not purchased by such persons will be offered by the
International Managers to the public upon the terms and conditions set forth in
the Prospectus.
Each International Manager agrees that, except to the extent permitted
by the Agreement Between U.S. Underwriters and International Managers, it will
not offer or sell any of the Stock inside of the United States.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxx Godward LLP, Five Palo
Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 10:00 A.M., New
York City time, on the [fourth] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Lead Managers and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company shall deliver or cause to be delivered certificates representing the
Firm Stock to the Lead Managers for the account of each International Manager
against payment to or upon the order of the Company of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each International Manager hereunder. Upon
delivery, the Firm Stock shall be registered in such names and in such
denominations as the Lead Managers shall request in writing not less than two
full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm Stock,
the Company shall make the certificates representing the Firm Stock available
for inspection by the Lead Managers in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the First Delivery Date.
The option granted in Section 2 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company by the Lead Managers. Such notice
shall set forth the aggregate number of shares of Option Stock as to which the
option is being exercised, the names in which the shares of Option Stock are to
be registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Lead Managers, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock are delivered
are sometimes referred to as a "Second Delivery Date" and the First Delivery
Date and any Second Delivery Date are sometimes each referred to as a "Delivery
Date."
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Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the Lead
Managers and the Company) at 10:00 A.M., New York City time, on such Second
Delivery Date. On such Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the Lead
Managers for the account of each International Manager against payment to or
upon the order of the Company of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each International Manager hereunder. Upon delivery, the
Option Stock shall be registered in such names and in such denominations as the
Lead Managers shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the Option Stock,
the Company shall make the certificates representing the Option Stock available
for inspection by the Lead Managers in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to such Second Delivery
Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead
Managers and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act; to make no further amendment
or any supplement to the Registration Statement or to the Prospectus
except as permitted herein; to advise the Lead Managers, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Lead Managers with copies thereof; to advise the
Lead Managers, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Lead Managers and to
counsel for the International Managers a signed copy of each of the
Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
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(c) To deliver promptly to the Lead Managers in New York City
such number of the following documents as the Lead Managers shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment
thereto (in each case including exhibits other than this Agreement and
the computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus;
and, if the delivery of a prospectus is required at any time after the
Effective Time in connection with the offering or sale of the Stock or
any other securities relating thereto and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend
or supplement the Prospectus in order to comply with the Securities
Act, to notify the Lead Managers and, upon their request, to file such
amended or supplemental prospectus and to prepare and furnish without
charge to each International Manager and to any dealer in securities
as many copies as the Lead Manager may from time to time reasonably
request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Lead
Managers, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Lead Managers and counsel for the
International Managers and obtain the consent of the Lead Managers to
the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver
to the Lead Managers an earnings statement of the Company and the
Subsidiary (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Lead Managers copies of all materials furnished by the
Company to its stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be listed
or quoted pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
12
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Lead
Managers may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other
than the Stock and shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding
options, warrants or rights), or sell or grant options, rights or
warrants with respect to any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the
grant of options pursuant to option plans existing on the date
hereof), or (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether
any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxx
Brothers Inc.; and to cause each officer and director of the Company
to furnish to the Lead Managers, prior to the First Delivery Date, a
letter or letters, in form and substance satisfactory to counsel for
the International Managers, pursuant to which each such person shall
agree not to, directly or indirectly, (1) offer for sale, sell, pledge
or otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition by
any person at any time in the future of) any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or (2)
enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, in each case
for a period of 180 days from the date of the Prospectus, without the
prior written consent of Xxxxxx Brothers Inc.;
(j) Prior to the Effective Date, to apply for the inclusion of
the Stock on the National Market System and to use its best efforts to
complete that listing, subject only to official notice of issuance and
evidence of satisfactory distribution, prior to the First Delivery
Date; and
(k) To take such steps as shall be necessary to ensure that
neither the Company nor the Subsidiary shall become an "investment
company" within the
13
meaning of such term under the United States Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement, the
Agreement Between U.S. Underwriters and International Managers and the
Supplemental Agreement Among U.S. Underwriters and any other related documents
in connection with the offering, purchase, sale and delivery of the Stock; (e)
the costs of distributing the terms of agreement relating to the organization of
the domestic underwriting syndicate and selling group to the members thereof by
mail, telex or other means of communication; (f) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Stock; (g) any applicable listing or other
fees; (h) the fees and expenses of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 5(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the International Managers); and (i) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that, except as provided in this Section 6 and in
Section 11, the International Managers shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the
Stock made by the International Managers.
7. Conditions of International Managers' Obligations. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of either of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
the Registration Statement or the Prospectus or otherwise shall have
been complied with.
(b) No U.S. Underwriter or International Manager shall have
discovered and disclosed to the Company on or prior to such Delivery
Date that either of the Registration Statement or the Prospectus or
any amendment or supplement thereto contains any untrue statement of a
fact which,
14
in the opinion of Xxxxxx & Xxxxxxx, counsel for the International
Managers, is material or omits to state any fact which, in the opinion
of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the U.S.
Underwriting Agreement, the Stock, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Lead Managers, and the
Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(d) Xxxxxx Godward LLP shall have furnished to the Lead Managers
its written opinion, as counsel to the Company, addressed to the U.S.
Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Lead Managers, to the effect that:
(i) The Company and the Subsidiary have been duly
incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, and to our knowledge, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified
would not have a material adverse effect on the business,
financial condition or results of operations of the Company, and
have all corporate power and authority necessary to own or hold
their respective properties and conduct the businesses in which
they are engaged; and to such counsel's knowledge, other than the
Subsidiary, the Company has no subsidiaries;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of the Subsidiary
have been duly and validly authorized and issued and are fully
paid, non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(iii) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the Company's
Amended and Restated Certificate of Incorporation (the
"Charter"), the Company's bylaws, any agreement filed as an
exhibit to the Registration Statement and Prospectus or, to such
counsel's
15
knowledge, any other agreement to which the Company is a party;
(iv) To such counsel's knowledge, there are no legal or
governmental proceedings pending or overtly threatened to which
the Company or the Subsidiary is a party or of which any property
or assets of the Company or the Subsidiary is the subject which
are required to be described in the Prospectus by the Securities
Act or the Rules and Regulations;
(v) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations as
of the date specified in such opinion and, to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such counsel's
knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements,
financial data and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and
the Rules and Regulations;
(vii) To such counsel's knowledge, there are no contracts
or other documents that are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations that have not
been described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules
and Regulations;
(viii) This Agreement and the U.S. Underwriting Agreement
have each been duly authorized, executed and delivered by the
Company;
(ix) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company with all of the provisions of this Agreement and
the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, or
other agreement material to the Company's business as described
in the Registration Statement and Prospectus, or other instrument
known to such counsel to which the Company or the Subsidiary is a
party or by which the Company or the Subsidiary is bound or to
which any of the property or assets of the Company or the
Subsidiary is subject, nor will such actions result in any
violation of the provisions of the charter or bylaws of the
Company or the Subsidiary or any
16
statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
the Company or the Subsidiary or any of their properties or
assets (except the securities or Blue Sky laws of the various
U.S. states and the rules of the NASD governing underwriting
compensation, as to which we express no opinion); and, except for
the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act,
applicable state securities laws and the rules of the NASD
governing underwriting compensation, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the U.S.
Underwriting Agreement by the Company and the consummation of the
transactions contemplated hereby;
(x) The Company is not an "investment company" within the
meaning of such term under the United States Investment Company
Act of 1940, as amended and the rules and regulations of the
Commission thereunder;
(xi) To such counsel's knowledge, 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 include securities
in the securities registered pursuant to the Registration
Statement. To such counsel's knowledge, except as described in
the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to register or include
securities pursuant to any other registration statement filed by
the Company under the Securities Act.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States
of America, the laws of the State of California and the General
Corporation Law of the State of Delaware and that such counsel is not
admitted in the State of Delaware. Such counsel shall also have
furnished to the Lead Managers a written statement, addressed to the
International Managers and dated such Delivery Date, in form and
substance satisfactory to the Lead Managers, to the effect that:
"In connection with the preparation of the Registration Statement, we
have participated in conferences with officers and other
representatives of the Company, representatives of the independent
public or certified public accountants for the Company and with
representatives of the International Managers. We have not
independently verified and accordingly are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus (other than the statements made in the Prospectus under the
captions "Description of Capital Stock" and "Shares Eligible for
Future Sale," insofar as such statements relate to the Stock and
concern legal matters), and any supplements or
17
amendments thereto. On the basis of the foregoing and in our capacity
as counsel to the Company, nothing has come to our attention which has
caused us to believe that either the Registration Statement or any
amendments thereto (except as to the financial statements and
schedules, and other financial data and statistical data derived
therefrom), at the time the Registration Statement or such amendments
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (except as to the financial statements and schedules, and
other financial data and statistical data derived therefrom), as of
its date or as of the date hereof contained an 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 in which
they were made, not misleading."
(e) Xxxxxxxx and Xxxxxxxx and Crew LLP, and the Science &
Technology Law Group shall each have furnished to the Representatives
a written opinion, as intellectual property counsel to the Company,
addressed to the U.S. Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to
the effect that they serve as intellectual property counsel to the
Company with respect to the Proprietary Rights, and that:
Such counsel has carefully read and analyzed the following
portions of the Registration Statement and Prospectus relating to
patents or patent rights: the disclosure appearing under the caption
"Prospectus Summary - Tularik," under the caption "Risk Factors--
Because it is difficult and costly to protect our proprietary rights,
we cannot ensure their protection," under the caption "Patents and
Proprietary Rights," under the caption "Business - Product
Development," under the caption "Business - Corporate Collaborations"
and under the caption "Business - Patents and Proprietary Rights,"
(the "Patent Information"). Such counsel has considered the
statements contained in the Patent Information and, without
independent verification of the accuracy, completeness or fairness of
such statements, nothing has come to such counsel's attention, as of
the date of the Prospectus and the date of such opinion, that leads
such counsel to believe that the Patent Information contains an untrue
statement of material fact or omits to states a material fact
necessary to make the statements therein not misleading, in light of
the circumstances in which they are made. As of the date of the
Prospectus and the date of such opinion, such counsel has no reason to
believe that the Patent Information is not in all material respects a
fair and accurate summary of the legal matters, documents and
proceedings relating thereto.
(i) Attached as Schedule A to such opinion is a list of the
Company's U.S. patents and pending U.S. patent applications (the
"U.S. Patent Rights") which, to the best of such counsel's
knowledge, are either owned or co-owned by the Company, as
indicated on such Schedule A. Where the Company is listed on
Schedule A to such opinion as the owner or co-owner of any U.S.
Patent Right, either (a) an assignment from the inventors to the
Company has been recorded or is being recorded in the United
States Patent and Trademark Office, or (b) an assignment from the
inventors to an intervening assignee and then to the Company has
been recorded or is being recorded in the United States Patent
18
and Trademark Office. To the best of such counsel's knowledge,
there are no claims to any ownership interests or liens on any of
the U.S. Patent Rights by any party other than the Company or the
other co-owners.
(ii) Attached as Schedule B to such opinion is a list of the
Company's non-U.S. patents and pending non-U.S. patent
applications (the "Non-U.S. Patent Rights" and together with the
U.S. Patent Rights, the "Patent Rights") which, to the best of
such counsel's knowledge, are either owned or co-owned by the
Company, as indicated on such Schedule B. Where the Company is
listed on Schedule A to such opinion as the owner or co-owner of
any Non-U.S. Patent Right, the named inventors of the Non-U.S.
Patent Rights have either (a) executed an assignment to the
Company or the other co-owner, or (b) are under an obligation to
execute an assignment to the Company or the other co-owner. To
the best of such counsel's knowledge, there are no claims to any
ownership interests or liens on any of the Non-U.S. Patent Rights
by any party other than the Company or the other co-owners.
(iii) To the best of such counsel's knowledge, for each of
the United States patents and patents applications reflected on
Schedule A to such opinion, the Company has disclosed or intends
to disclose to the United States Patent and Trademark Office all
information known and believed to be material to patentability
under the extant 37 C.F.R. (S)1.56.
(iv) Such counsel has reviewed all or portions of certain
patent estates and is unaware of any facts that would lead it to
believe that the Company lacks any patent rights or licenses
under such patent estates necessary to conduct the current or
prospective business of the Company as specified in the
Registration Statement and Prospectus.
(v) Except as described in the Prospectus under the caption
"Patent and Proprietary Rights," to the best of such counsel's
knowledge, the Company has not received any claim of infringement
of any patents held by others, and to the best of such counsel's
knowledge, there is no pending or threatened actions, suit,
proceeding or claim by others that the Company is infringing a
patent.
(vi) To the best of such counsel's knowledge, there are no
pending or threatened legal or governmental proceedings relating
to the U.S. Patent Rights, other than proceedings before the
United States Patent and Trademark Office that are carried out
during the course of prosecution.
(f) The Lead Managers shall have received from Xxxxxx & Xxxxxxx,
counsel for the International Managers, such opinion or opinions,
dated such Delivery Date,
19
with respect to the issuance and sale of the Stock, the Registration
Statement, the Prospectus and other related matters as the Lead
Managers may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Lead Managers
shall have received from Ernst & Young LLP a letter, in form and
substance reasonably satisfactory to the Lead Managers, addressed to
the International Managers and dated the date hereof (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to International Managers in
connection with registered public offerings.
(h) With respect to the letter of Ernst & Young LLP referred to
in the preceding paragraph and delivered to the Lead Managers
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Lead Managers a
letter (the "bring-down letter") of such accountants, addressed to the
International Managers and dated such Delivery Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(i) The Company shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its Chief Financial Officer
stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 7(a) and 7(j)
have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration
20
Statement and Prospectus did not include any untrue statement of
a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event
has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus.
(j) (i) Neither the Company nor the Subsidiary shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or
the Subsidiary or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and the Subsidiary, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of
the Lead Managers, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Stock being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of the
several International Managers, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The National Market System shall have approved the Stock for
inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(m) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First Delivery
Date.
21
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the International Managers.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
International Manager, its officers and employees and each person, if
any, who controls any International Manager within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that International Manager,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A)
in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B) in any
blue sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the
Stock under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter
called a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act, or any
alleged act or failure to act, by any International Manager 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 action arising
out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable under this clause (iii)
to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such International Manager
through its gross negligence or willful misconduct), and shall
reimburse each International Manager and each such officer, employee
and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that International Manager, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that the Company and the Principal Subsidiary shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon
and in conformity with written information concerning such
International Manager furnished to the Company through the Lead
Managers by or on behalf of any International Manager specifically for
inclusion therein which information consists solely of the information
specified in Section 9(e). The foregoing indemnity agreement is in
addition to any liability which the Company and the Principal
Subsidiary may otherwise have to any International Manager or to any
officer, employee or controlling person of that International Manager.
22
[In addition to the foregoing indemnification of all the International
Managers, including Xxxxxx Brothers Inc., the Company agrees to indemnify and
hold harmless Xxxxxx Brothers Inc., and each person who controls Xxxxxx Brothers
Inc. within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and expenses incurred by Xxxxxx Brothers Inc. arising out of or
based upon Xxxxxx Brothers Inc.'s serving as "qualified independent underwriter"
for the offering, including reasonable costs of investigation and fees and
disbursements of counsel retained by Xxxxxx Brothers Inc. to represent it in its
capacity as "qualified independent underwriter."]
(b) Each International Manager, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees,
each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the
written information concerning such International Manager furnished to
the Company through the Lead Managers by or on behalf of that
International Manager specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any International Manager may
otherwise have to the Company or any such director, officer, employee
or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
23
party shall not be liable to the indemnified party under this Section
8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Lead
Managers shall have the right to employ counsel to represent jointly
the Lead Managers and those other International Managers and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the International Managers against the
Company under this Section 8 if, in the reasonable judgment of the
Lead Managers, it is advisable for the Lead Managers and those
International Managers, officers, employees and controlling persons to
be jointly represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the Company. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of
any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the International Managers
on the other from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and the International Managers on the
other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the International
Managers on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering
of the Stock purchased under this Agreement (before deducting
expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the International
Managers with respect to the shares of the Stock purchased under this
Agreement, on the other hand, bear to the total gross proceeds from
the offering of the shares of the Stock under this Agreement, 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 whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or the International Managers, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such
24
statement or omission. The Company and the International Managers
agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation
(even if the International Managers were treated as one entity for
such purpose) or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 8(d), no International Manager shall be required to
contribute any amount in excess of the amount by which the total price
at which the Stock underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
International Manager has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The International Managers' obligations
to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The International Managers severally confirm and the Company
acknowledges that the statements with respect to the public offering
of the Stock by the International Managers set forth on the cover page
of, and the concession and reallowance figures appearing under the
caption "Underwriting" in, the Prospectus are correct and constitute
the only information concerning the International Managers furnished
in writing to the Company by or on behalf of the International
Managers specifically for inclusion in the Registration Statement and
the Prospectus.
9. Defaulting International Managers.
If, on either Delivery Date, any International Manager defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting International Managers shall be obligated to purchase the Stock which
the defaulting International Manager agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set forth opposite the name of each remaining non-defaulting
International Manager in Schedule 1 hereto bears to the total number of shares
of the Firm Stock set forth opposite the names of all the remaining non-
defaulting International Managers in Schedule 1 hereto; provided, however, that
the remaining non-defaulting International Managers shall not be obligated to
purchase any of the Stock on such Delivery Date if the total number of shares of
the Stock which the defaulting International Manager or International Managers
agreed but failed to purchase on such date exceeds 9.09% of the total number of
shares of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting International Manager shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 3. If the foregoing
maximums are exceeded, the remaining non-defaulting International Managers, or
those other underwriters satisfactory to the Lead Managers who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Stock to be purchased on such Delivery
Date. If the remaining International Managers or other underwriters
satisfactory to the Lead Managers do not elect to
25
purchase the shares which the defaulting International Manager or International
Managers agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
International Managers to purchase, and of the Company to sell, the Option
Stock) shall terminate without liability on the part of any non-defaulting
International Manager or the Company, except that the Company will continue to
be liable for the payment of expenses to the extent set forth in Sections 6 and
11. As used in this Agreement, the term "International Manager" includes, for
all purposes of this Agreement unless the context requires otherwise, any party
not listed in Schedule 1 hereto who, pursuant to this Section 9, purchases Firm
Stock which a defaulting International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company for damages caused by its
default. If other underwriters are obligated or agree to purchase the Stock of
a defaulting or withdrawing International Manager, either the Lead Managers or
the Company may postpone the First Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the International Managers may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
10. Termination.
The obligations of the International Managers hereunder may be
terminated by the Lead Managers by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock if, prior to that time, any
of the events described in Sections 7(j) or 7(k) shall have occurred or if the
International Managers shall decline to purchase the Stock for any reason
permitted under this Agreement.
11. Reimbursement of International Managers' Expenses. If (a) the
Company shall fail to tender the Stock for delivery to the International
Managers by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the International Managers' obligations hereunder required to
be fulfilled by the Company is not fulfilled, the Company will reimburse the
International Managers for all reasonable out-of-pocket expenses (including fees
and disbursements of counsel) incurred by the International Managers in
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company shall pay the full amount thereof to the Lead Managers. If
this Agreement is terminated pursuant to Section 9 by reason of the default of
one or more International Managers, the Company shall not be obligated to
reimburse any defaulting International Manager on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: 000-000-0000), with a copy, in the case of
any notice pursuant to Section 11(d), to the Director
26
of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc.,
Three World Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in
the Primary Registration Statement, Attention: Xxxxxxx X. Xxxxxxx,
General Counsel (Fax: 650/000-0000);
provided, however, that any notice to an International Manager pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such International Manager at its address set forth in its acceptance telex
to the Lead Managers, which address will be supplied to any other party hereto
by the Lead Managers upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the International Managers by Xxxxxx Brothers Inc. on
behalf of the International Managers.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any International Manager within the
meaning of Section 15 of the Securities Act and for the benefit of each
International Manager (and controlling persons thereof) who offers or sells any
shares of Common Stock in accordance with the terms of the Agreement Between
U.S. Underwriters and International Managers and (B) the indemnity agreement of
the International Managers contained in Section 8(b) of this Agreement shall be
deemed to be for the benefit of directors, officers and employees of the Company
and any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the International Managers
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
27
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company and the International Managers, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
Tularik Inc.
By
----------------------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer
Accepted:
Xxxxxx Brothers Inc.
Xxxxxxxxx & Xxxxx LLC
X.X. Xxxxxx Securities Inc.
Warburg Dillon Read LLC
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By Xxxxxx Brothers Inc.
By
-----------------------------------
Authorized Representative
By Xxxxxxxxx & Xxxxx LLC
By
-----------------------------------
Authorized Representative
28
By X.X. Xxxxxx Securities Inc.
By
-----------------------------------
Authorized Representative
By Warburg Dillon Read LLC
By
-----------------------------------
Authorized Representative
29
SCHEDULE 1
Number of
International Managers Shares
---------------------- ---------
Xxxxxx Brothers Inc. ...................................... ________
Xxxxxxxxx & Xxxxx LLC ..................................... ________
X.X. Xxxxxx Securities Inc. ............................... ________
Warburg Dillon Read LLC ................................... ________
[BZ Bank] ................................................. ________
Total ................................................ ========
