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2,455,000 Shares
TRANSCEND THERAPEUTICS, INC.
Common Stock
UNDERWRITING AGREEMENT
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June __, 1997
EVEREN SECURITIES, INC.
PRINCIPAL FINANCIAL SECURITIES, INC.
As Representatives of the Several Underwriters
c/o EVEREN SECURITIES, INC.
00 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Transcend Therapeutics, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell an aggregate of 2,455,000 shares of its common stock,
par value $0.01 per share (the "Initial Securities"), to the several
Underwriters named in Schedule I hereto (the "Underwriters") for whom EVEREN
Securities, Inc. ("EVEREN") and Principal Financial Securities, Inc. are acting
as representatives (collectively, the "Representatives"). In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the several Underwriters, upon the terms and conditions set forth in Section 2
hereof, an option to purchase up to an additional 368,250 shares of Common Stock
of the Company (the "Option Securities"). The Initial Securities and the Option
Securities are hereinafter collectively referred to as the "Securities." The
Company's common stock, par value $0.01 per share, including the Securities, is
hereinafter referred to as the "Common Stock." The Company wishes to confirm as
follows its agreements with you and the other Underwriters on whose behalf you
are acting in connection with the several purchases by the Underwriters of the
Securities:
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (No. 333-22817) covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus, or prospectuses, and either (A)
has prepared and filed, prior to the effective date of such registra-
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tion statement, an amendment to such registration statement, including a final
prospectus or (B) if the Company has elected to rely upon Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), will prepare and file a prospectus, in accordance with
the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, promptly after execution and delivery of this Agreement.
Additionally, if the Company has elected to rely upon Rule 434 ("Rule 434") of
the 1933 Act Regulations, the Company will prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b),
promptly after execution and delivery of this Agreement. The information, if
any, included in such prospectus or in such Term Sheet, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it becomes effective (a)
pursuant to paragraph (b) of Rule 430A, is referred to herein as the "Rule 430A
Information," or (b) pursuant to paragraph (d) of Rule 434, is referred to
herein as the "Rule 434 Information." Each prospectus used before the time such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was used
after effectiveness and prior to the execution and delivery of this Agreement is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits and schedules thereto, at the time it became effective and
including, if applicable, the Rule 430A Information or the Rule 434 Information,
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
Registration Statement shall include the Rule 462(b) Registration Statement. The
final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein referred to as the
"Prospectus." If Rule 434 is relied upon, the term "Prospectus" shall refer to
the preliminary prospectus last furnished to the Underwriters in connection with
the offering of the Securities, together with the Term Sheet, and all references
to the date of the Prospectus shall mean the date of the Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy, if any,
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX").
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the representations,
warranties and agreements contained herein and subject to all the terms and
conditions set forth herein, the Company hereby agrees to issue and sell to each
Underwriter and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $[ ] per share (the "purchase price per
share"), the number of Initial Securities set
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forth in Schedule I opposite the name of such Underwriter under the column
"Number of Initial Securities to be Purchased from the Company" (or such number
of Initial Securities increased as set forth in Section 10 hereof).
Upon the basis of the representations, warranties and agreements contained
herein and subject to all the terms and conditions set forth herein, the Company
hereby grants an option (the "over-allotment option") to the Underwriters to
purchase from the Company, at the purchase price per share, up to an aggregate
of 300,000 Option Securities. Option Securities may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Securities. Such option shall expire at 5:00 P.M., Chicago time, on the 30th day
after the date of this Agreement (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading). Such over-allotment option may be exercised at
any time or from time to time until its expiration. Upon any exercise of the
over-allotment option, each Underwriter, severally and not jointly, agrees to
purchase from the Company that proportion of the total number of Option
Securities as is equal to the percentage of Initial Securities that such
Underwriter is purchasing from the Company (or such number of Initial Securities
increased as set forth in Section 10 hereof), subject to such adjustments as you
may determine to avoid fractional shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that the
Underwriters propose to make a public offering of the Securities as soon after
the Registration Statement and this Agreement have become effective as in your
judgment is advisable and initially to offer the Securities upon the terms set
forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Initial Securities shall be made at the
office of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, at 9:00 A.M., Chicago time, on the
third (fourth, if the pricing occurs after 4:30 p.m. (Eastern Time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10 hereof) (the "Closing Date"). The place of closing for
the Initial Securities and the Closing Date may be varied by agreement among you
and the Company.
Delivery to the Underwriters of and payment for any Option Securities to be
purchased by the Underwriters shall be made at the aforementioned office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) at such time on such date (an
"Option Closing Date"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor earlier than two nor
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later than ten business days after the giving of the notice hereinafter referred
to, as shall be specified in a written notice from you on behalf of the
Underwriters to the Company of the Underwriters' determination to purchase a
number, specified in such notice, of Option Securities. The place of closing for
any Option Securities and the Option Closing Date for such Option Securities may
be varied by agreement between you and the Company.
Certificates for the Initial Securities and for any Option Securities to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request by written notice (it being understood that a facsimile
transmission shall be deemed written notice) prior to 9:30 A.M., Chicago time,
on the second business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to you in
Chicago, Illinois or New York, New York, as requested by you in the aforesaid
notice, for inspection and packaging not later than 9:30 A.M., Chicago time, on
the business day next preceding the Closing Date or an Option Closing Date, as
the case may be. The certificates evidencing the Initial Securities and any
Option Securities to be purchased hereunder shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, against payment of
the purchase price therefor by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the order of the Company.
It is understood that each Underwriter has authorized you, for its account, to
accept delivery of, acknowledge receipt of, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. EVEREN, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose check has not been received by the Closing
Date or the Option Closing Date, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
5. AGREEMENTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters as follows:
a. The Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) of the effectiveness of the Registration Statement
and any amendment thereto, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the suspension of
qualification of the Securities for offering or sale in any jurisdiction or the
initiation of any proceedings for such purpose and (v) during the period when
the Prospectus is required to be delivered under the
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1933 Act or Securities Exchange Act of 1934, as amended (the "1934 Act"), of any
change, or any event or occurrence which could result in such a change, in the
Company's condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company or the happening of any event, including
the filing of any information, documents or reports pursuant to the 1934 Act,
that makes any statement of a material fact made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to state a material fact required by the 1933 Act or the
1933 Act Regulations to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus to comply with the 1933 Act, the 1933 Act Regulations or any
other law. The Company shall use its best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, and, if at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, the Company shall use every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
b. The Company will give the Underwriters notice of its intention to
prepare or file any amendment to the Registration Statement (including any
post-effective amendment), any Rule 462(b) Registration Statement, any Term
Sheet or any amendment or supplement to the Prospectus (including any revised
prospectus or Term Sheet and preliminary prospectus which the Company proposes
for use by the Underwriters in connection with the offering of the Securities
which differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised prospectus
or Term Sheet and preliminary prospectus is required to be filed pursuant to
Rule 424(b)), whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriters with copies of any Rule 462(b) Registration Statement,
Term Sheet, amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such Rule
462(b) Registration Statement, Term Sheet, amendment or supplement or use any
such prospectus to which the Underwriters or counsel for the Underwriters shall
object.
c. The Company has furnished or will deliver to the Underwriters and
their counsel, without charge, as many signed and conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as the
Underwriters may reasonably request. If applicable, the copies of
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the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
d. The Company will furnish to each Underwriter, without charge, from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act, the 1934 Act, the 1933 Act Regulations or
the rules and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"). If applicable, the Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
e. The Company will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act, the 1934 Act, the 1933 Act Regulations
or the 1934 Act Regulations to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 5(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
f. During the period of five years hereafter, the Company will furnish
to you (i) as soon as available, a copy of each report of the Company mailed to
stockholders or filed with the Commission or the Nasdaq National Market ("NNM"),
and (ii) from time to time such other information concerning the Company as you
may reasonably request.
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g. The Company will use its best efforts, in cooperation with counsel
to the Underwriters, to qualify the Securities for offering and sale under the
applicable securities or Blue Sky laws of such states and other jurisdictions of
the United States as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; PROVIDED, HOWEVER, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
h. The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
i. The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
j. If, at the time that the Registration Statement becomes effective,
any Rule 430A Information or Rule 434 Information shall have been omitted
therefrom, then immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with Rule 430A or Rule 434 and Rule 424(b), copies of a Prospectus or
Term Sheet containing such Rule 430A Information and Rule 434 Information,
respectively, or, if required by Rule 430A, a post-effective amendment to the
Registration Statement (including an amended Prospectus), containing such Rule
430A Information.
k. If the Company elects to rely upon Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the
1933 Act Regulations by the earlier of (i) 10:00 P.M. Eastern Time on the date
hereof and (ii) the time confirmations are sent or given, as specified by Rule
462(b)(2).
l. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the
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Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
m. During a period of 270 days from the date of the Prospectus, the
Company will not, without the prior written consent of EVEREN, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any share
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of any security outstanding
on the date hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus or (D) any
shares of Common Stock issued pursuant to any non-employee director stock plan.
n. The Company has furnished or will furnish to you "lock-up" letters,
in form and substance satisfactory to you, signed by Boehringer Ingelheim
International GmbH ("BI") and each of the Company's current officers and
directors and each of its stockholders designated by you.
o. The Company will supply the Underwriters with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Securities under the 0000 Xxx.
p. Prior to the Closing Date, the Company shall furnish to the
Underwriters, as soon as they have been prepared, copies of any unaudited
interim 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.
q. Prior to the Closing Date, the Company will issue no press release
or other communications directly or indirectly and hold no press conference with
respect to the Company, the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, or the offering of the
Securities, without the prior written consent of
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the Representatives unless in the judgment of the Company and its counsel, and
after notification to the Representatives, such press release or communication
is required by law.
r. The Company has not taken, nor will it take, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Securities.
s. The Company will use its best efforts to have the Securities
approved for listing on NNM.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Underwriter that:
a. When the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto becomes effective, at the
date of the Prospectus, if different, and at the Closing Date and the Option
Closing Date, as the case may be, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied or
will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus and any supplements or amendments thereto will not at the date of the
Prospectus, at the date of any such supplements or amendments, or at the Closing
Date or the Option Closing Date, if any, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially different,"
as such term is used in Rule 434, from the Prospectus included in the
Registration Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus relating to any Underwriter made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter, through EVEREN expressly for use in the Registration
Statement or Prospectus. The Company has not distributed any offering materials
in connection with the offering or sale of the Securities other than the
Registration Statement, the preliminary prospectus, the Prospectus, the Term
Sheet, if applicable, or any other materials, if any, permitted by the 1933 Act
or the 1933 Act Regulations.
b. Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as original-
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ly filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material respects with the
1933 Act Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
c. The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
d. The financial statements included in the Registration Statement and
the Prospectus present fairly the financial position of the Company as of the
dates indicated and the results of its operations for the periods specified;
except as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein. The financial information and statistical data set forth in the
Prospectus are prepared on an accounting basis consistent with such financial
statements.
e. Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(i) there has been no material adverse change or, to the knowledge of the
Company, any development affecting the Company that would result in a
prospective material adverse change in or affecting the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, (ii) there
have been no transactions entered into by the Company, other than those in the
ordinary course of business, which are material with respect to the Company, and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock. The Company has no
material contingent obligations which are not disclosed in the Registration
Statement.
f. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property
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or the conduct of business, except where the failure to so qualify would not,
singly or in the aggregate, have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
g. The Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, association or
other entity.
h. Each of (i) this Agreement, (ii) the Development and License
Agreement, dated as of February 28, 1997 (the "Development and License
Agreement"), by and between the Company and BI, and (iii) the Stock Purchase
Agreement, dated as of February 28, 1997 (the "Stock Purchase Agreement" and,
together with the Development and License Agreement which, as either may be
amended from time to time, the "BI Agreements"), by and between the Company and
BI has been duly executed and delivered by the Company and constitutes a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general principles of equity and except as
rights to indemnity and contribution hereunder may be limited by Federal or
state securities laws or the public policy underlying such laws.
i. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement or pursuant to reservations,
agreements, employee or director benefit plans or the exercise of convertible
securities referred to in the Prospectus); the shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable and have not been issued in violation of or
are not otherwise subject to any preemptive or other similar rights; the
Securities have been duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, the Securities when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-assessable; the
certificates evidencing the Securities are in due and proper form under Delaware
law; the authorized capital stock of the Company, including the Securities,
conforms to all statements relating thereto contained in the Prospectus; and the
issuance of the Securities is not subject to preemptive or other similar rights.
There are no outstanding subscriptions, options, warrants, convertible or
exchangeable securities or other rights granted to or by the Company to purchase
shares of Common Stock or other securities of the Company and there are no
commitments, plans or arrangements to issue any shares of Common Stock or any
security
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convertible into or exchangeable for Common Stock, in each case other than as
described in the Prospectus.
j. Except as disclosed in the Registration Statement and except as
would not, singly or in the aggregate, reasonably be expected to have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, (A) the Company is in
compliance with all applicable Environmental Laws, (B) the Company has all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with the requirements of such
permits authorizations and approvals and (C) there are no pending or, to the
best knowledge of the Company, threatened Environmental Claims against the
Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgement, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
k. The Company is not (i) in violation of its charter or bylaws or
(ii) in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement, voting trust,
or other instrument or agreement to which the Company is a party or by which it
may be bound, or to which any of the property or assets of the Company is
subject; except in the case of clause (ii) above, as would not, singly or in the
aggregate, have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company. The execution, delivery and performance of each of this Agreement and
the BI Agreements and the consummation of the transactions contemplated herein
and therein and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or
other instrument or agreement to which the Company is a party or by which it may
be bound, or to
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which any of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the charter or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
l. No labor dispute with the employees of the Company exists or, to
the actual knowledge of the Company, is imminent; and the Company is not aware
of any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which might, singly or in the
aggregate, be expected to result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company.
m. There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which, singly or in the aggregate, might result in any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, or which, singly or in
the aggregate, might materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the consummation of this
Agreement or the BI Agreements; all pending legal or governmental proceedings to
which the Company is a party or of which any of its property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
which are required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
n. The Company owns or is licensed 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") which are material to the business of the Company as now
conducted and as proposed to be conducted, in each case as described in the
Prospectus. The Company takes security measures adequate to assert trade secret
protection in its non-patented technology. The description of the Proprietary
Rights is correct in all material respects and fairly and correctly describes
the Company's rights with respect thereto. Except as specifically identified and
described in the Prospectus, the Company does not have any knowledge of, and the
Company has not given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any material Proprietary
Rights or with respect to any license of material Proprietary Rights. Except
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14
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 actual knowledge of the Company, threatened, which involves
any Proprietary Rights. The 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 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 an adverse effect on the use of any of the material
Proprietary Rights. To the best knowledge of the Company, no Proprietary Rights
used by the Company, and no services or products sold by the Company, conflict
with or infringe upon any proprietary rights available to any third party. The
Company has not received written notice of any pending conflict with or
infringement upon such third-party proprietary rights. The Company has not
entered into any consent, indemnification, forbearance to xxx or settlement
agreement with respect to Proprietary Rights other than in the ordinary course
of business. To the best knowledge of the Company, no liens have been filed
against any Proprietary Rights or with respect to any license of Proprietary
Rights and no claims have been asserted by any person with respect to the
validity of the Company's ownership or right to use the Proprietary Rights and,
to the best knowledge of the Company, there is no reasonable basis for any such
claim to be successful. The Proprietary Rights are valid and enforceable, and no
registration relating thereto has lapsed, expired or been abandoned or cancelled
or is the subject of cancellation or other adversarial proceedings, and all
applications therefore are pending and are in good standing. 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 actual knowledge of the Company, no person is infringing on or violating
the Proprietary Rights owned or used by the Company.
o. No registration, authorization, approval, qualification or consent
of any court or governmental authority or agency is necessary in connection with
the offering, issuance or sale of the Securities hereunder, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state securities
or Blue Sky laws (or such as may be required by the National Association of
Securities Dealers, Inc. ("NASD")).
p. The Company possesses and is operating in compliance with all
material licenses, certificates, consents, authorities, approvals and permits
(collectively, "permits") from all state, Federal, foreign and other regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such permit or any circumstance
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15
which would lead it to believe that such proceedings are reasonably likely.
q. Except as described in the Prospectus, there are no persons with
registration or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under the
1933 Act.
r. No order preventing or suspending the use of any preliminary
prospectus has been issued and no proceedings for that purpose are pending, nor
has the Company received notification that the Commission is contemplating such
an order or proceeding; and to the best knowledge of the Company, no order
suspending the offering of the Securities in any jurisdiction designated by the
Underwriters pursuant to Section 5(g) of this Agreement has been issued and, to
the best knowledge of the Company, no proceedings for that purpose have been
instituted or threatened or are contemplated.
s. The Company has good and marketable title to its properties, free
and clear of all material security interests, mortgages, pledges, liens,
charges, encumbrances, claims and equities of record. The properties of the
Company are, in the aggregate, in good repair (reasonable wear and tear
excepted), and suitable for their respective uses. Any real properties held
under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the conduct of the business of the Company.
t. 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 the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
u. The Company has conducted and is conducting its business in
compliance with all applicable Federal, state, local and foreign statutes, laws,
rules, regulations, ordinances, codes, decisions, decrees, directives and
orders, except where the failure to do so would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company.
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16
v. To the best of the Company's knowledge, neither the Company 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.
w. The Company is not now, and after sale of the Securities to be sold
by it hereunder and application of the net proceeds from such sale as described
in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
x. All offers and sales of capital stock of the Company, were at all
relevant times duly registered or exempt from the registration requirements of
the 1933 Act and were duly registered or subject to an available exemption from
the registration requirements of the applicable state securities or Blue Sky
laws.
y. The Common Stock is registered pursuant to Section 12(g) of the
1934 Act. The Securities have been duly authorized for quota ion on NNM. The
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the 1934 Act or delisting
the Common Stock from NNM, nor has the Company received any notification that
the Commission or NNM is contemplating terminating such registration or listing.
z. Neither the Company nor, to its knowledge, any of its officers,
directors or affiliates has taken, and at the Closing Date and at any later
Option Closing Date, neither the Company nor, to its knowledge, any of its
officers, directors or affiliates will have taken, directly or indirectly, any
action which has constituted, or might reasonably be expected to constitute, the
stabilization or manipulation of the price of sale or resale of the Securities.
aa. The Company maintains insurance of the types and in amounts
adequate for its business and consistent with insurance coverage maintained by
similar companies in similar business, including but not limited to, insurance
covering clinical trial liability and real and personal property owned or leased
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and effect.
ab. The Company has filed all material tax returns required to be
filed, which returns are true and correct in all material respects, and the
Company is not in default in the payment of any taxes, including penalties and
interest,
16
17
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which were
payable pursuant to said returns or any assessments with respect thereto.
ac. Except as described in the Prospectus, to the best of the
Company's knowledge, there are no rulemaking or similar proceedings before The
United States Food and Drug Administration or comparable Federal, state, local
or foreign government bodies which involve or affect the Company, which, if the
subject of an action unfavorable to the Company, could involve a prospective
material adverse change in or effect on the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company.
ad. The Company has not received any communication (whether written or
oral) relating to the termination or threatened termination or modification or
threatened modification of any material consulting, licensing, marketing,
research and development, cooperative or any similar agreement, including,
without limitation, the BI Agreements and the technology and license agreements
listed under the sections of the Prospectus entitled, "Business--Boehringer
Ingelheim" and "Business--Technology and License Agreements," respectively.
Each such agreement is in effect substantially as described in such section of
the Prospectus.
ae. To the knowledge of the Company, if any full-time employee
identified in the Prospectus has entered into any non-competition,
non-disclosure, confidentiality or other similar agreement with any party other
than the Company, such employee is neither in violation thereof nor is expected
to be in violation thereof as a result of the business conducted or expected to
be conducted by the Company as described in the Prospectus or such person's
performance of his obligations to the Company; and the Company has not received
written notice that any consultant or scientific advisor of the Company is in
violation of any non-competition, non-disclosure, confidentiality or similar
agreement. The agreements executed by the Company's employees, consultants and
other advisors respecting trade secrets, confidentiality, or intellectual
property rights are valid, binding and enforceable in accordance with their
express terms.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold harmless (i) each
Underwriter and (ii) each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act (any of the persons referred to in
this clause (ii) being hereinafter referred to as a "controlling person") and
(iii) the respective directors, officers, partners and employees of
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18
any of the Underwriters or any controlling person (any person referred to in
clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Person") to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities and expenses whatsoever (including, without
limitation, all reasonable costs of pursuing, investigating and defending any
claim, suit or action or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person), directly or indirectly, caused
by, related to, based upon or arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information, if applicable, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Underwriter furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use in
connection therewith; PROVIDED, HOWEVER, that the indemnification contained in
this paragraph a. with respect to any preliminary prospectus shall not inure to
the benefit of any Underwriter (or related Indemnified Person) on account of any
such loss, claim, damage, liability or expense arising from the sale of the
Securities by such Underwriter to any person if a copy of the Prospectus shall
not have been delivered or sent to such person within the time required by the
1933 Act or the 1933 Act Regulations, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus (or any amendment or
supplement thereto), provided that the Company has delivered the Prospectus to
the several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending.
b. If any action, suit or proceeding shall be brought against any
Indemnified Person in respect of which indemnity may be sought against the
Company, such Indemnified Person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses.
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19
Such Indemnified Person shall have the right to employ separate counsel in any
such action, suit or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the indemnifying parties have agreed in writing to
pay such fees and expenses, (ii) the indemnifying parties have failed to assume
the defense and employ counsel or (iii) the named parties to any such action,
suit, investigation or proceeding (including any impleaded parties) include both
such Indemnified Person and the indemnifying parties and representation of such
Indemnified Person and any indemnifying party by the same counsel would, in the
reasonable judgment of the Indemnified Person, be inappropriate due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Indemnified Person). It is understood, however,
that the indemnifying parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by EVEREN, and that all such fees and expenses shall be reimbursed as
they are incurred. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected without their written
consent, which consent shall not be unreasonably withheld, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Indemnified Person, to the extent provided in the preceding
paragraph, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
c. Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, any person who controls the Company within the meaning
of Section 15 of the 1933 Act, to the same extent as the foregoing indemnity
from the Company to each Indemnified Person, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter through EVEREN expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus, or any amendment or supplement
thereto. If any action, suit, investigation or proceeding shall be brought
against the Company, any of its directors, any such officer or any such
controlling person based on the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Company
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20
by paragraph (b) above, and the Company, its directors, any such officer and any
such controlling person shall have the rights and duties given to the
Indemnified Persons by paragraph (a) above.
d. If the indemnification provided for in this Section 7 is
unavailable to, or insufficient to hold harmless, an indemnified party under
paragraphs (a) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law
or judicial determination, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other hand, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
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 or, if Rule
434 is used, the corresponding location on the Term Sheet. The relative fault of
the Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether 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 on the one hand
or by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity and contribution obligations of the Company
set forth herein shall be in addition to any liability or obligation the Company
may otherwise have to any Indemnified Person.
e. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such
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action, suit or proceeding. Notwithstanding the provisions of this Section 7, no
Underwriter (or any of its related Indemnified Persons) shall be required to
contribute (whether pursuant to subsection (a) or (c) or otherwise) any amount
in excess of the underwriting discount applicable to the Securities underwritten
by such Underwriter. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Securities set forth opposite their
names in Schedule I hereto (or such numbers of Securities increased as set forth
in Section 10 hereof) and not joint.
f. No indemnifying party shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such action, suit or proceeding.
g. Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Indemnified Person, the Company, its
directors or officers or any person controlling the Company, (ii) acceptance of
any Securities and payment therefor hereunder and (iii) any termination of this
Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Initial Securities hereunder are subject to the
following conditions:
a. The Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective on the date hereof; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission. If the Company has elected to rely upon Rule 430A, Rule 430A
Information previously omitted from the effective Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the prescribed time period and the Company shall
have provided evidence satisfactory to the Underwriters of such timely
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22
filing, or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A. If the Company has elected to rely upon Rule 434, a Term Sheet shall
have been transmitted to the Commission for filing pursuant to Rule 424(b)
within the prescribed time period.
b. The Underwriters shall have received:
(i) The favorable opinion, dated as of the Closing Date, of Xxxx
and Xxxx LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
A. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware.
B. The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and to
enter into and perform its obligations under this Agreement and
the BI Agreements.
C. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in ___________.
D. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans or
the exercise of convertible securities referred to in the
Prospectus), and the shares of issued and outstanding capital
stock of the Company, including the Common Stock, have been duly
authorized and validly issued and are fully paid and
non-assessable and, to their knowledge and information, have not
been issued in violation of or are not otherwise subject to any
preemptive rights or other similar rights.
E. The Securities have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; and, to their
knowledge, the issuance of the Secu-
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rities is not subject to preemptive or other similar rights.
F. To their knowledge, except as described in the
Prospectus, there are no outstanding options, warrants or other
rights granted to or by the Company to purchase shares of Common
Stock or other securities of the Company and there are no written
options, warrants or other rights to issue any shares of Common
Stock or other securities.
G. This Agreement and each of the BI Agreements has been
duly authorized, executed and delivered by the Company.
H. At the time the Registration Statement became effective
and at the Closing Date, the Registration Statement (other than
the financial statements and supporting schedules included
therein, as to which no opinion need be rendered) complied as to
form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
I. The form of certificate used to evidence each of the
Securities is in due and proper form and complies with all
applicable statutory requirements.
J. To their knowledge, there are no legal or governmental
proceedings pending or threatened which individually or in the
aggregate are required to be disclosed in the Registration
Statement other than those disclosed therein.
K. The information in the Prospectus under "Risk
Factors--Shares Eligible for Future Sale; Registration Rights,"
"Capitalization," "Business--Boehringer Ingelheim,"--Technology
and License Agreements," "Certain Transactions," "Description of
Capital Stock," "Shares Eligible for Future Sale" and "Legal
Matters" to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by them and constitutes accurate,
fair and complete summaries thereof in all material respects.
L. To their knowledge, (i) there are no contracts,
indentures, mortgages, loan agreements, deeds, trusts, notes,
leases, subleases, voting trusts, voting agreements or other
instruments or
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agreements required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed as exhibits
thereto, and (ii) the descriptions or references to Exhibits 1,
3.1, 3.2, 3.3, 4.1, 4.2, 4.3, 4.4, 10.1, 10.2, 10.3, 10.4, 10.5,
10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13 and 10.14 are
correct in all material respects and fairly and correctly
presents the information called for with respect thereto.
M. No authorization, approval, consent or order of any court
or governmental authority or agency is required on behalf of the
Company in connection with the offering, issuance or sale of the
Securities to the Underwriters, except, with respect to the
Securities, such as may be required under the 1933 Act or the
1933 Act Regulations or state securities or Blue Sky laws or such
as may be required by the NASD; and the execution, delivery and
performance of this Agreement and the BI Agreements and the
consummation of the transactions contemplated herein and therein
and the compliance by the Company with its obligations hereunder
and thereunder will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan
agreement, note, deed, trust, lease, sublease, voting trust,
voting agreement or other instrument or agreement ("instruments")
listed on a schedule to be attached to their opinion (which
schedule shall include all instruments (A) filed as an exhibit to
the Registration Statement or (B) included in a certificate of an
officer of the Company setting forth any other instruments
material to the Company, nor will such action result in any
violation of the provisions of (1) the charter or bylaws of the
Company or (2) any applicable statute, law, rule, regulation,
ordinance, code or decision or (3) any directive, decision or
order known to them of any court or governmental agency having
jurisdiction over the Company or any of its properties or assets.
N. Except as described in the Prospectus, to their
knowledge, there are no agreements between the Company and any
persons providing such persons with registration or other similar
rights to have any securities registered pursuant to the
Xxxxxxxx-
00
00
tion Statement or otherwise registered by the Company under the
1933 Act.
O. The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
P. All sales of the Company's capital stock during the
nineteen months immediately prior to the date hereof were at all
relevant times exempt from the registration requirements of the
1933 Act.
Q. The Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus, and any
supplements thereto or the Term Sheet, pursuant to Rule 424(b)
and if applicable, Rule 434, has been made in the manner and
within the time period required; and to their best knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings therefor have been instituted or are pending or
contemplated under the 1933 Act.
(ii) The favorable opinion, dated as of the Closing Date, of
Xxxxxx & Xxxxxxx LLP, patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
A. The statements in the Prospectus relating to United
States patent matters, under the captions "Risk Factors--Patents
and Proprietary Rights; Third Party Rights" and
"Business--Patents and Proprietary Rights," insofar as such
statements constitute matters of law, legal conclusions, or
summaries of legal matters or proceedings, are correct in all
material respects and present fairly the information purported to
be shown.
B. To the best of their knowledge, with respect to the
United States patent applications that are referred to in the
Registration Statement and listed in Schedules IV and V hereto
(herein called the "Applications"), the sections of the
Registration Statement entitled "Risk Factors--Patents and
Proprietary Rights; Third Party Rights" and "Business--Patents
and Proprietary Rights," at the time the Registration Statement
became effective, did not contain any untrue statement of
material fact or omit to state a material fact required to be
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26
stated therein or necessary to make the statements therein, not
misleading.
C. To the best of their knowledge, with respect to the
Applications, the sections of the Prospectus entitled "Risk
Factors--Patents and Proprietary Rights; Third Party Rights" and
"Business--Patents and Proprietary Rights," as of its date and as
of the Closing, do not contain any untrue statement of material
fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading.
D. With respect to United States patent matters, nothing has
come to their attention which would lead them to believe that the
sections of the Registration Statement entitled "Risk
Factors--Patents and Proprietary Rights; Third Party Rights" and
"Business--Patents and Proprietary Rights," at the time the
Registration Statement became effective, contained any untrue
statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, not misleading.
E. With respect to United States patent matters, nothing has
come to their attention which would lead them to believe that the
sections of the Prospectus entitled "Risk Factors--Patents and
Proprietary Rights; Third Party Rights" and "Business--Patents
and Proprietary Rights," as of the Prospectus' date and as of the
Closing Date, contain any untrue statement of material fact of
omit to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made,
not misleading.
F. The Company is listed in the records of the appropriate
foreign patent offices as the sole assignee of record of each of
the foreign patents that are referred to in the Registration
Statement and listed on Schedule VI hereto (herein called the
"Foreign Patents") and each of the foreign applications that are
referred to in the Registration Statement and listed on Schedule
VII hereto (herein called the "Foreign Applications"). To the
best of their knowledge, there are no asserted or unasserted
claims of any persons relating to the scope or ownership of the
Foreign Patents or the Foreign Applications, there are no liens
which have been filed against any of the Foreign Patents or
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the Foreign Applications, there are no material defects of form
in the preparation or filing of the Foreign Applications, the
Foreign Applications are being diligently prosecuted, and none of
the Foreign Applications has been finally rejected or abandoned.
G. Except as otherwise disclosed in the Prospectus, nothing
has come to their attention that leads them to believe that the
Applications and the Foreign Applications will not eventuate in
issued patents, or that any patents issued in respect of any such
Applications or Foreign Applications will not be valid or will
not afford the Company reasonable patent protection relative to
the subject matter thereof.
H. To the best of their knowledge, except as described in
the Prospectus, and with the exception of proceedings before the
United States Patent and Trademark Office, there are no pending,
or threatened, legal or governmental proceedings with respect to
any of the United States patents referred to in the Registration
Statement and listed on Schedules II and III hereto (herein
called the "Patents") or the Applications.
I. According to the records of the United States Patent and
Trademark Office, which are current as of [DATE], the Company
owns each of the Patents and the patent applications that are
referred to in the Registration Statement and listed on Schedule
IV hereto.
J. To the best of their knowledge, except as described in
the Prospectus and except for rights which may be reserved to the
United States government, no third party has any rights to any of
the Patents or Applications.
K. To the best of their knowledge, no interference has
been declared or provoked with respect to any of the Patents or
the Applications.
L. To the best of their knowledge, there is no
presently-pending inventorship challenge with respect to any of
the Patents or the Applications.
M. To the best of their knowledge, without any searches
specifically having been conducted, or having been required to
have been conducted, no third party is infringing on any of the
Patents.
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N. To the best of their knowledge, the Company has not
received any notice challenging the Company's rights to any of
the Patents or the Applications.
O. To the best of their knowledge, the Company has not
received any notice challenging the validity or enforceability of
any of the Patents.
P. While there can be no guarantee that any particular
patent application will issue as a patent, each of the
Applications hereto presently is being properly and diligently
prosecuted in the United States Patent and Trademark Office.
Q. To the best of their knowledge, for each Application, all
information known to them to be "material to patentability," as
defined in 37 C.F.R. ss. 1.56(b), has been disclosed, or will be
disclosed, pursuant to 37 C.F.R. [section] 1.97, to the United
States Patent and Trademark Office.
R. To the best of their knowledge, without any searches
specifically having been conducted, or having been required to
have been conducted, for the purpose of rendering this opinion,
while there can be no guarantee that any particular patent
application will issue as a patent, each of the Applications
discloses patentable subject matter.
S. To the best of their knowledge, except as otherwise
disclosed in the Prospectus, no claim, which is presently
pending, has been asserted against the Company relating to the
potential infringement of, or conflict with, any Patents,
trademarks, copyrights, trade secrets, or proprietary rights, of
others.
(iii) The favorable opinion, dated as of the Closing Date, of
Xxxxxx & Dodge LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
A. The Company has an exclusive license to each of the
patent applications and patents listed in Schedule VIII hereto;
and the licenses granting such rights are listed in Schedule IX
hereto, each entry of which lists the numbers of the patent
applications and patents to which it pertains. All of the
licenses listed in Schedule IX hereto are duly executed, are in
effect, are validly binding, and are enforceable in accordance
with their terms;
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and none of them has been terminated or been the subject of a
termination notice.
(iv) The favorable opinion, dated as of the Closing Date, of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the
Underwriters with respect to the issuance and sale of the Securities,
the Registration Statement and the Prospectus and such other related
matters as the Underwriters shall reasonably request.
(v) In giving their opinions required by subsections (b)(i) and
(b)(iv), respectively, of this Section 8, Xxxx and Xxxx LLP and
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) shall each
additionally state that nothing has come to their attention that leads
them to believe that the Registration Statement (except for financial
statements and schedules and other financial information included
therein, as to which counsel need make no statement), at the time it
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 for financial statements and schedules and other
financial information included therein, as to which counsel need make
no statement), as of its date (unless the term "Prospectus" refers to
a prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the Securities
which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective, in which case at
the time it is first provided to the Underwriters for such use) or at
the Closing Date or the Option Closing Date, as the case may be,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
c. (i) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company in Section 6 hereof shall be true
and correct with the same force and effect as though expressly made at and as of
the Closing Date, except to the extent that any such representation or warranty
relates to a specific date, (iii) the Company shall have complied in all
material respects with all agreements and satisfied all
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conditions on its part to be performed or satisfied at or prior to the Closing
Date, (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission and (v) the Representatives shall have
received a certificate, dated the Closing Date and signed by the President or
any Vice President and the chief financial or accounting officer of the Company
to the effect set forth in clauses (i), (ii), (iii) and (iv) above.
d. BI shall have purchased $5 million of Securities in the Offering at
the initial public offering price and BI shall have made payment of the
consideration as provided in the Prospectus.
e. At the time of the execution of this Agreement, the Underwriters
shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
f. The Underwriters shall have received from Ernst & Young LLP a
letter, dated as of the Closing Date, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Date.
g. The Securities shall have been approved for quotation on NNM.
h. In the event that the Underwriters exercise their option provided
in Section 2 hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be true
and correct as of the Option Closing Date and, at the relevant Option Closing
Date, the Underwriters shall have received:
(1) A certificate, dated such Option Closing Date, of the
President or any Vice President of the Company and of the chief
financial or accounting officer of the Company confirming that the
certificate delivered at the Closing Date pursuant to Section 8 (c)
hereof remains true and correct as of such Option Closing Date.
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31
(2) The favorable opinion of Xxxx and Xxxx LLP, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Sections 8 (b)(i) and 8
(b)(v) hereof (except such subsections thereof as are then
inapplicable).
(3) The favorable opinion of Xxxxxx & Xxxxxxx LLP, patent counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date to the same effect as the
opinion required by Section 8(b)(ii) hereof.
(4) The favorable opinion of Xxxxxx & Dodge LLP, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date to the same effect as the
opinion required by Section 8(b)(iii) hereof.
(5) The favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), counsel for the Underwriters, dated such Option Closing
Date, relating to the Option Securities to be purchased on such Option
Closing Date and otherwise to the same effect as the opinion required
by Sections 8 (b)(iv) and 8 (b)(v) hereof.
(6) A letter from Ernst & Young LLP in form and substance
satisfactory to the Underwriters and dated such Option Closing Date,
substantially the same in form and substance as the letter furnished
to the Underwriters pursuant to Section 8(e) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
8(g)(5) shall be a date not more than three business days prior to
such Option Closing Date.
i. At the date of this Agreement, the Underwriters shall have received
lock-up agreements in form and substance satisfactory to the Underwriters by the
persons designated by you.
j. Counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities
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as herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
k. The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
l. Any certificate or document signed by any officer of the Company
and delivered to you, as Representatives of the Underwriters, or to counsel for
the Underwriters, pursuant to this Agreement shall be deemed a representation
and warranty by the Company to each Underwriter as to the statements made
therein.
m. If any condition specified in this Section 8 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the purchase of Option Securities, on an Option Closing Date
which is after the Closing Date, the obligations of the several Underwriters to
purchase the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Date
or such an Option Closing Date as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
9 and except that Sections 6 and 7 shall survive any such termination and remain
in full force and effect.
9. EXPENSES. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each preliminary prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight and charges for
counting and packaging) of such copies of the Registration Statement, each
preliminary prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp
taxes in connection with the original issuance and sale of the Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, the preliminary
and supplemental Blue Sky Memoranda and all other agreements or documents
printed (or reproduced) and delivered in connection with the original issuance
and sale of the Securities; (v) the registration of the Common Stock under the
1934 Act and the quotation of the Securities on NNM; (vi) the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of one counsel for the Underwriters
relating to the preparation, printing or reproduction, and
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delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vii) the filing fees and the reasonable fees
and expenses of one counsel for the Underwriters incident to securing any
required review by the NASD; and (viii) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company.
If this Agreement shall terminate or shall be terminated after execution
pursuant to any provisions hereof (otherwise than pursuant to the second
paragraph of Section 10 or pursuant to clauses (ii), (iii), (iv) and (v) of
Section 11 hereof) or if this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply, in any
material respect, with the terms or fulfill, in any material respect, any of the
conditions of this Agreement, the Company agrees to reimburse the
Representatives for all reasonable out-of-pocket expenses (including reasonable
fees and expenses of one counsel for the Underwriters) incurred by you in
connection herewith.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective: (i)
upon the execution and delivery hereof by or on behalf of the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the Registration Statement or a post-effective amendment thereto to be
declared effective before the offering of the Securities may commence, when
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company.
If one or more of the Underwriters shall fail on the Closing Date to
purchase the Initial Securities which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
a. if the number of Defaulted Securities does not exceed 10% of the
number of Initial Securities, the non-defaulting Underwriters shall be obligated
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
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b. if the number of Defaulted Securities exceeds 10% of the number of
Initial Securities, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. a. The Underwriters may terminate this
Agreement, by written notice to the Company, at any time at or prior to the
Closing Date or Option Closing Date, as the case may be, (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, (ii) if there has occurred any change in the
financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in your judgement, impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities,
(iii) if trading in the Common Stock has been suspended by the Commission, or if
trading generally on the American Stock Exchange, the New York Stock Exchange or
in the over-the-counter markets has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by such exchange or markets or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Illinois authorities, (iv) the enactment,
publication, decree or other promulgation of any Federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your judgement materially and adversely affects or may materially or adversely
affect the business or operations of the Company or (v) the taking of any action
by any Federal, state or local government or agency
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in respect of its monetary or fiscal affairs which in your judgement has a
material adverse effect on the securities markets in the United States, and
would in your judgement make it impracticable or inadvisable to market the
Securities or to enforce any contract for the sale thereof. Notice of such
termination may be given by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
b. If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party except as
provided in Section 9 and provided further that Sections 6 and 7 shall survive
such termination and remain in full force and effect.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth in
the last paragraph on the cover page, the stabilization legend on the inside
front cover page, and the statements under the caption "Underwriting" in any
preliminary prospectus and in the Prospectus constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 5(a) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company at the office of the
Company at, 000 Xxxxxxxx Xxxxx, 0xx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chief Executive Officer; or (ii) if to you, as Representatives of the
several Underwriters, care of EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx,
00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 Attention: Syndicate Department.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois applicable to
contracts made and to be performed within the State of Illinois. This Agreement
may be signed in various counterparts which together constitute one and the same
instrument. If signed in counterparts, this Agreement shall not become effective
unless at least one counterpart hereof shall have been executed and delivered on
behalf of each party hereto.
15. SUCCESSORS. This Agreement has been and is made solely for the benefit
of the several Underwriters, the Company, its directors and officers, the other
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Securities in his
status as such purchaser.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
TRANSCEND THERAPEUTICS, INC.
By:
---------------------------------------
President and Chief
Executive Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
EVEREN SECURITIES, INC.
PRINCIPAL FINANCIAL SECURITIES, INC.
As Representatives of the Several Underwriters
By EVEREN SECURITIES, INC.
By:
---------------------------------------
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SCHEDULE I
TRANSCEND THERAPEUTICS, INC.
Number of
---------
Initial
-------
Securities
----------
Purchased
---------
from the
--------
Underwriter Company
----------- -------
EVEREN Securities, Inc.
Principal Financial
Securities, Inc. . . .
-------
Total
=======
37
