Exhibit 1.1
[ ] Shares
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
March [ ], 2000
UNDERWRITING AGREEMENT
March [ ], 2000
Warburg Dillon Read LLC
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
as Managing Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
DrugAbuse Sciences, Inc., a California corporation (the Company),
proposes to issue and sell to the underwriters named in Schedule A annexed
hereto (the "Underwriters") an aggregate of ____shares (the "Firm Shares") of
Common Stock, $0.001 par value (the "Common Stock"), of the Company. In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional ____ shares of Common Stock (the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively sometimes referred
to as the "Shares." The Shares are described in the Prospectus which is referred
to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (File No. 333-96049)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the Registration Statement, and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto in each case at a purchase price of $[ ] per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); PROVIDED, HOWEVER, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day(1) after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares).
--------
(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
2
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company (DTC) for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on March ___, 2000 (unless another time shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day preceding the
additional time of purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act; and when the Registration Statement becomes
effective, the Registration Statement and the Prospectus will fully comply in
all material respects with the provisions of the Act, and the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed; PROVIDED, HOWEVER, that
the Company makes no warranty or representation with respect to any
3
statement contained in the Registration Statement or the Prospectus in reliance
upon and in conformity with information concerning the Underwriters and
furnished in writing by or on behalf of any Underwriter through you to the
Company expressly for use in the Registration Statement or the Prospectus; and
the Company has not distributed any offering material in connection with the
offering or sale of the Shares other than the Registration Statement, the
Preliminary Prospectus, the Prospectus or any other materials, if any, permitted
by the Act;
(b) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading entitled "Actual" in
the section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase and the additional time of
purchase, as the case may be, the Company shall have an authorized
capitalization as set forth under the headings entitled "Pro Forma" and "Pro
Forma As Adjusted" in the section of the Registration Statement and the
Prospectus entitled "Capitalization," all of the issued and outstanding shares
of capital stock including Common Stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable, have been
issued in compliance with all federal and state securities laws and were not
issued in violation of any preemptive right, resale right, right of first
refusal or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse effect
on the business, properties, condition, operations, or prospects of the Company
and its Subsidiaries (as hereinafter defined) taken as a whole (a "Material
Adverse Effect"). The Company has no subsidiaries (as defined in the Rules and
Regulations) other than those set forth in Schedule B annexed hereto
(collectively, the "Subsidiaries"); the Company owns 100% of the outstanding
common stock of the Subsidiaries, except as otherwise described on Schedule B;
other than the Subsidiaries, 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; complete and correct copies of the certificates of
incorporation and of the bylaws of the Company and the Subsidiaries and all
amendments thereto have been delivered to you, and except as set forth in the
exhibits to the Registration Statement no changes therein will be made
subsequent to the date hereof and prior to the Closing Date or, if later, the
Option Closing Date; each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with full
4
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement; each Subsidiary
is duly qualified to do business as a foreign corporation in good standing in
each jurisdiction where the ownership or leasing of the properties or the
conduct of its business requires such qualification, except where the failure to
so qualify would not have a Material Adverse Effect; all of the outstanding
shares of capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable and (except as otherwise
described in this Section 3(d)) are owned by the Company subject to no security
interest, other encumbrance or adverse claims; no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interests in
the Subsidiaries are outstanding.
(e) the Company and each of its Subsidiaries are in compliance in
all material respects with the laws, orders, rules, regulations and directives
issued or administered by all jurisdictions in which they conduct their
respective businesses;
(f) neither the Company nor any of its Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice, lapse of
time, or both would result in any breach of, or constitute a default under), its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which any of them or any
of their properties is bound, and the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in any breach
of or constitute a default under (nor constitute any event which with notice,
lapse of time, or both would result in any breach of, or constitute a default
under), any provisions of the charter or by-laws, of the Company or any of its
Subsidiaries or under any provision of any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the Company or any of its Subsidiaries;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms;
5
(h) the certificates for the Shares are in due and proper form
and the holders of the Shares will not be subject to personal liability by
reason of being such holders;
(i) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable;
(j) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the Shares or the consummation by the Company of the transactions as
contemplated hereby other than registration of the Shares under the Act and any
necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters or under
the rules and regulations of the National Association of Securities Dealers,
Inc. ("NASD");
(k) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights, co-sale
rights, rights of first refusal or other rights to purchase any of the Shares
other than those that have been expressly waived prior to the date hereof;
copies of all such waivers have been delivered to you;
(l) PriceWaterhouse Coopers LLP, whose reports on the
consolidated financial statements of the Company and its Subsidiaries are filed
with the Commission as part of the Registration Statement and Prospectus, are
independent public accountants as required by the Act;
(m) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation or
rule, including rules and regulations promulgated by the Food and Drug
Administration (the "FDA") of the U.S. Department of Health and Human Services
and/or any committee thereof, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its respective
business; neither the Company nor any of its Subsidiaries is in violation of, or
in default under, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of its Subsidiaries the effect of
which could have a Material Adverse Effect;
(n) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration Statement
or the Prospectus
6
or to be filed as an exhibit to the Registration Statement have been so
described or filed as required;
(o) there are no actions, suits, claims, investigations or
proceedings pending or threatened to which the Company or any of its
Subsidiaries or any of their respective officers is a party or of which any of
their respective properties is subject at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency which could result in a judgment, decree or order
having a Material Adverse Effect or prevent consummation of the transactions
contemplated hereby;
(p) the financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial position
of the Company and its Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and its
Subsidiaries for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles (with the
exception of notes to the information presented with respect to the nine months
ended September 30, 1999) applied on a consistent basis during the periods
involved;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been (i)
any material adverse change, or any development which, in the Company's
reasonable judgment, is likely to have Material Adverse Effect, (ii) any
transaction which is material to the Company or its Subsidiaries, except
transactions in the ordinary course of business, (iii) any obligation, direct or
contingent, which is material to the Company and its Subsidiaries taken as a
whole, incurred by the Company or its Subsidiaries, except obligations incurred
in the ordinary course of business, (iv) any change in the capital stock or
outstanding indebtedness of the Company or its Subsidiaries or (v) any dividend
or distribution of any kind declared, paid or made on the capital stock of the
Company. Neither the Company nor its Subsidiaries has any material contingent
obligation which is not disclosed in the Registration Statement.
(r) the Company has obtained the agreement of each of its
directors, officers and stockholders not to sell, offer to sell, contract to
sell, hypothecate, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase Common
Stock for a period of 180 days after the effective date of the Registration
Statement;
(s) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment
7
company," as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(t) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (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) Except to the extent disclosed in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), the clinical,
preclinical and other studies and tests conducted by or on behalf of or
sponsored by the Company or in which the Company or the Company's products under
development have participated that are described in the Prospectus or the
results of which are referred to in the Prospectus were and, if still pending,
are being conducted in accordance with standard medical and scientific research
procedures. The descriptions of the results of such studies and tests are
accurate and complete in all material respects and fairly present the data
derived from such studies and tests, and the Company has not knowledge of any
other studies or tests the results of which are inconsistent with or otherwise
call into question the results described or referred to in the Prospectus.
Except to the extent disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), the Company has operated and currently
is in compliance in all material respects with all applicable FDA rules,
regulations and policies. Except to the extent disclosed in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), the
Company has not received any notices or other correspondence from the FDA or any
other governmental agency requiring the termination, suspension or modification
of any clinical or pre-clinical studies or tests that are described in the
Prospectus or the results of which are referred to in the Prospectus.
(v) the Company is (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
has received and is in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct its businesses
and (iii) has not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required permits,
licenses or other approvals, or liability would not,
8
individually or in the aggregate, have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto). The Company has not been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
(w) the Company owns, possesses, licenses or has other rights to
use, on reasonable terms, all patents, patent applications, trade and service
marks, trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") reasonably necessary for the conduct
of the Company's business as now conducted or as proposed in the Prospectus to
be conducted. Except as set forth in the Prospectus under the caption "Business
- Patents and Proprietary Information," (a) there are no rights of third parties
to any such Intellectual Property; (b) there is no infringement by third parties
of any such Intellectual Property; (c) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others challenging
the Company's rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; (d)
there is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such
claim; (e) there is no pending or, to the Company's knowledge threatened action,
suit, proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact which would form
a reasonable basis for any such claim; (f) to the best of the Company's
knowledge there is no U.S. patent or published U.S. patent application which
contains claims that dominate in the Prospectus as being owned by or licensed to
the Company or that interferes with the issued or pending claims of any such
Intellectual Property; and (g) to the best of the Company's knowledge there is
no prior art of which the Company is aware that may render any U.S. patent held
by the Company invalid or any U.S. patent application held by the Company
unpatentable which has not been disclosed to the U.S. Patent and Trademark
Office.
(x) the statements contained in the Prospectus under the captions
"Risk Factors - Our business depends on the existence of collaborative
relationships to be successful," "--We may incur substantial costs as a result
of litigation or other proceedings relating to patent and other intellectual
property rights," "-- The rights we rely upon to protect our trade secrets may
not be adequate, enabling third parties to use our technology" and"Business -
Collaborations," "--Licensing Agreements," "--Patents and Proprietary
Information," insofar as such statements summarize legal matters, agreements,
documents, or proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
9
(y) the Company has not received nor is it aware of any
communication (written or oral) relating to the termination or modification or
threatened termination or modification of any of the agreements described or
referred to in the prospectus under the captions "Risk Factors - Our business
depends on the existence of collaborative relationships to be successful,"
"Business - Collaborations," and "Licensing Agreements," nor is it aware of any
communication (written or oral) relating to any determination or threatened
determination not to renew or extend any agreement described or referred to
under such caption is at the end of the current term of any such agreement.
(z) all representations and warranties made by the Company and
its Subsidiary, DrugAbuse Sciences S.A.S., a societe par actions simplifiee
("DAS SAS") in the Exchange Agreement dated as of October ___, 1999 (the
"Exchange Agreement), by and among the Company and DAS SAS are true and correct
in all respects on and of the date hereof and shall be true and correct in all
respects as of the date of the closing of the DAS SAS purchase of the Firm
Shares and the Additional Shares, as the case may be, as if made by the Company
and DAS SAS, as the case may be, on and as of such dates.
(aa) the exchange of the Exchange Shares (as defined in the
Exchange Agreement) for the Shares (as defined in the Exchange Agreement) (the
"Exchange") was completed on February ___, 2000 (the "Effective Date"). Each of
the Investors (as defined in the Exchange Agreement) has delivered duly executed
Transfer Orders (as defined in the Exchange Agreement) in respect of all the
Shares, sufficient to convey good title to the Shares to the Company as of the
Effective Date and such transfers have been duly recorded in the share transfer
register ("REGISTRE DE MOUVEMENTS TITRES") of DAS SAS. Any transfer taxes or
similar levies that were or may become payable as a result of the execution of
the Exchange Agreement or the completion of the Exchange have been paid.
(bb) the Shares acquired by the Company pursuant to the Exchange
constitute all of the equity interests in DAS SAS which were not held by the
Company on the Effective Date immediately prior to the Exchange and were
acquired by the Company, together with all rights (whether economic, voting or
otherwise) then or thereafter attaching thereto, free and clear of all pledges,
liens, privileges, mortgages, charges, community property interests, security
interests, burdens, encumbrances, as well as any agreements, options,
undertakings, rights of first offer, rights of pre-emption or any other rights
of third parties, or other obligations restrictions or limitations of any nature
whatsoever. The Exchange Shares issued to each Investor constitute the total
consideration paid or payable to such Investor for the Shares and no Investor
retained any interest whatsoever (whether economic, voting or otherwise) in DAS
SAS upon consummation of the Exchange.
(cc) the consummation of the Exchange, does not and will not:
10
conflict with or violate any provision of the STATUTS of DAS SAS, the articles
of incorporation or other governing documents ("Organizational Documents") of
the Company, or if any Investor is a corporation or a partnership, the
Organizational Documents of such Investor;
violate, conflict with or result in the breach or termination of, or constitute
a default, event of default (or an event which with notice, lapse of time, or
both, would constitute a default or event of default), under the terms of, (i)
any written contracts, agreements, commitments, leases, licenses, mortgages,
bonds, notes or other undertakings or (ii) any permits, authorizations,
approvals, registrations and licenses, grants, subsidies or financial assistance
granted by or obtained from any governmental, administrative or regulatory body,
department agency, commission, authority or similar instrumentality
("Governmental Authority") to which the Company or DAS SAS is a party;
Constitute a violation by the Company, DAS SAS or any of the Investors of any
applicable laws, rules or regulations of any Governmental Authority or any
judgments, orders, rulings or awards of any court, arbitrator or other judicial
authority or any other Governmental Authority to the Company or DAS SAS are
subject.
(dd) the sale and issuance of the Exchange Shares in accordance
with the Exchange constitutes transactions exempt from the registration
requirements of Section 5 of the Act were effected in compliance, in all
respects, with applicable U.S. state securities laws, do not constitute an
"XXXXX PUBLIC A L'EPARGNE" as defined for French law purposes in article 6-I al.
1 of the ordinance no. 67-833 of September 28, 1967 as modified by law no.
98-546 of July 2, 1998 or a private placement subject to the information
requirements set forth in the COMMISSION DES OPERATIONS DE BOURSE regulation no.
98-09 and shall not otherwise cause the Company or DAS SAS to become subject to
any requirements imposed by French law upon companies deemed for French law
purposes to have made an offering of securities to the public.
(ee) no consent, waiver, approval, authorization, exemption,
registration, license or declaration of or by, or filing with, any Governmental
Authority or any third party was required to be made or obtained by any of the
Company, DAS SAS, or any of the Investors in connection with the consummation of
the Exchange.
4. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the securities
or blue sky laws of such states as you may designate and to maintain such
qualifications in effect so long as required for the distribution of the Shares;
PROVIDED that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares); and
11
to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies of
the Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective date
of the Registration Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver a
prospectus within the nine-month period referred to in Section 10(a)(3) of the
Act in connection with the sale of the Shares, the Company will prepare promptly
upon request, but at the expense of such Underwriter, such amendment or
amendments to the Registration Statement and such prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3) of the
Act;
(c) to advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when the Registration Statement has become effective
and when any post-effective amendment thereto becomes effective and (ii) if Rule
430A under the Act is used, when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting or
removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or Prospectus and to
file no such amendment or supplement to which you shall object in writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
12
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send to
its stockholders or shall from time to time publish or publicly disseminate,
(ii) copies of all annual, quarterly and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, (iii) copies of documents or reports filed with
any national securities exchange on which any class of securities of the Company
is listed, and (iv) such other information as you may reasonably request
regarding the Company or its Subsidiaries, in each case as soon as such
communications, documents or information becomes available;
(h) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Act which, in the judgment of
the Company, would require the making of any change in the Prospectus then being
used, so that the Prospectus would not include an untrue statement of material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not misleading,
and, during such time, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such Prospectus as may
be necessary to reflect any such change and to furnish you a copy of such
proposed amendment or supplement before filing any such amendment or supplement
with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement (as defined in
Rule 158(c) of the Act) as soon as is reasonably practicable after the
termination of such twelve-month period but not later than [ ], 2001;
(j) to furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and of cash flow of the Company for
such fiscal year, accompanied by a copy of the certificate or report thereon of
nationally recognized independent certified public accountants;
(k) to furnish to you three signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and sufficient conformed copies of the foregoing
(other than exhibits) for distribution of a copy to each of the other
Underwriters;
(l) to furnish to you as early as practicable prior to the time
of purchase and the additional time of purchase, as the case may be, but not
later than two business days
13
prior thereto, a copy of the latest available unaudited interim consolidated
financial statements, if any, of the Company and its Subsidiaries which have
been read by the Company's independent certified public accountants, as stated
in their letter to be furnished pursuant to Section 6(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the Underwriters except
as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in
connection with (i) the preparation and filing of the Registration Statement,
each Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares, (iii) the producing, word
processing and/or printing of this Agreement, any Agreement Among Underwriters,
any dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and the
determination of their eligibility for investment under state law as aforesaid
(including the legal fees and filing fees and other disbursements of counsel for
the Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of the Shares
for quotation on NASDAQ and any registration thereof under the Exchange Act,
(vi) any filing for review of the public offering of the Shares by the NASD and
(vii) the performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and during the
period referred to in paragraph (f) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(p) not to sell, offer or agree to sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or indirectly, any shares
of Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock or warrants or other rights to purchase Common Stock or any
other securities of the Company that are substantially similar to Common Stock
or permit the registration under the Act of any shares of Common Stock, except
for the registration of the Shares and the sales to the Underwriters pursuant to
this Agreement and except for issuances of Common Stock upon the exercise of
outstanding
14
options, warrants and debentures, for a period of 180 days after the date
hereof, without the prior written consent of Warburg Dillon Read ("WDR"); and
(q) to use its best efforts to cause the Common Stock for
quotation on the National Association of Securities Dealers Automated Quotation
National Market System ("NASDAQ").
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 8 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form satisfactory to Xxxxxxx, Phleger & Xxxxxxxx, LLP,
counsel for the Underwriters, stating that:
(i) 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 full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus, to execute and deliver this Agreement and to issue, sell and
deliver the Shares as herein contemplated;
(ii) each of the Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation with full corporate power and authority
to own, lease and operate its respective properties and to conduct its
respective business;
15
(iii) the Company and its Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their respective businesses
and in which the failure, individually or in the aggregate, to be so licensed or
qualified could have a Material Adverse Effect and the Company and its
Subsidiaries are duly qualified, and are in good standing, in each jurisdiction
in which they own or lease real property or maintain an office and in which such
qualification is necessary;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares have been duly authorized and, when issued
and delivered to and paid for by theUnderwriters, will be validly issued and
will be fully paid and non-assessable;
(vi) the Company has an authorized capitalization as set
forth in the Registration Statement and the Prospectus; the outstanding shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid, nonassessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar rights;
the Shares when issued will be free of statutory and contractual preemptive
rights; the certificates for the Shares are in due and proper form and the
holders of the Shares will not be subject to personal liability by reason of
being such holders;
(vii) other than the Subsidiaries, the Company does not own
or control, directly or indirectly, any corporation, association or other
entity; each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement; each Subsidiary is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of the properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse Effect;
all of the outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable and,
except as otherwise stated in the Registration Statement, are owned by the
Company, in each case subject to no security interest, other encumbrance or
adverse claim; to the best of such counsel's knowledge, no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding;
(viii) the capital stock of the Company, including the
Shares, conforms to the description thereof contained in the Registration
Statement and Prospectus;
16
(ix) the Registration Statement and the Prospectus (except
as to the financial statements and schedules and other financial and statistical
data contained or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects with the
requirements of the Act;
(x) the Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order proceedings
with respect thereto are pending or threatened under the Act and any required
filing of the Prospectus and any supplement thereto pursuant to Rule 424 under
the Act has been made in the manner and within the time period required by such
Rule 424;
(xi) no approval, authorization, consent or order of or
filing with any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the issuance and
sale of the Shares and consummation by the Company of the transactions as
contemplated hereby other than registration of the Shares under the Act (except
such counsel need express no opinion as to any necessary qualification under the
state securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters);
(xii) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in any breach
of, or constitute a default under (nor constitute any event which with notice,
lapse of time, or both, would result in any breach of, or constitute a default
under), any provisions of the charter or by-laws of the Company or any of its
Subsidiaries or under any provision of any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the Company or any of its Subsidiaries;
(xiii) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in violation of its charter or by-laws or
is in breach of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would result in any breach of, or constitute a
default under), any license, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them or their respective properties may be bound or
affected or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company or any of its
Subsidiaries;
17
(xiv) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to be
summarized or described in the Prospectus which have not been so filed,
summarized or described;
(xv) to the best of such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of its Subsidiaries is subject or of
which any of their respective properties is subject at law or in equity or
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are required to be described
in the Prospectus but are not so described;
(xvi) the Company will not, upon consummation of the
transactions contemplated by this Agreement, be an "investment company," or a
"promoter" or "principal underwriter" for, a "registered investment company," as
such terms are defined in the Investment Company Act of 1940, as amended;
(xvii) such counsel have participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement and Prospectus
were discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus (except as and
to the extent stated in subparagraphs (vi) and (viii) above), on the basis of
the foregoing nothing has come to the attention of such counsel that causes them
to believe that the Registration Statement or any amendment thereto at the time
such Registration Statement or amendment 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 or any supplement thereto at the date of such Prospectus or
such supplement, and at all times up to and including the time of purchase or
additional time of purchase, as the case may be, 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, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
(b) the Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of Venable,
Baetjer, Xxxxxx & Civiletti, LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of purchase,
as the case may be, with reproduced copies for
18
each of the other Underwriters and in form satisfactory to Xxxxxxx, Xxxxxxx &
Xxxxxxxx, LLP, counsel for the Underwriters stating that:
such counsel have read the description of the Company's business
in the Prospectus and the statements in the Prospectus under the captions "Risk
Factors - If we are unable to successfully complete preclinical testing..."
"--We will not be able to sell our products if we do not obtain..."
"Business-Government Regulation" (the "FDA Portion") and, to the best of such
counsel's knowledge, (A) the statements included in the FDA Portion, insofar as
such statements summarize provisions of applicable FDA statutes and regulations,
are accurate in all material respects and (B) the FDA statutes and regulations
summarized in the FDA Portion are the FDA statutes and regulations that are
material to the Company's business as described in the Prospectus.
(c) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of [Flehr
Hohoboch], counsel for the Company, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form satisfactory to
Xxxxxxx, Phleger & Xxxxxxxx, LLP, counsel for the Underwriters stating that:
(i) The statements in the Prospectus
relating to U.S. patent matters, under the captions "Risk Factors - Our
Business depends on the existence of collaborative relationships to be
successful; We may incur substantial costs as a result of litigation or other
proceedings relating to patent and other intellectual property rights; Our
success will depend partly on our ability to operate without infringing on or
misappropriating the proprietary rights of others;" and "Business Licensing
Agreements; Patents and Proprietary Technology", 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
facts and information purported to be shown.
(ii) With respect to the patents and
patent applications referred to in the Prospectus (the "Patents and Patent
Applications"), and the license agreements referred to in the Registration
Statement (the "License Agreements") that are listed in Schedule I to the
opinion, the sections of the Registration Statement entitled "Risk Factors -
Our Business depends on the existence of collaborative relationships to be
successful; We may incur substantial costs as a result of litigation or other
proceedings relating to patent and other intellectual property rights; Our
success will depend partly on our ability to operate without infringing on or
misappropriating the proprietary rights of others;" and "Business - Licensing
Agreements; Patents and Proprietary Technology", 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 stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(iii) With respect to the Patents and
Patent Applications and the License Agreements, the sections of the
Prospectus entitled "Risk Factors - Our Business depends on the existence of
collaborative relationships to be successful; We may incur substantial costs
as a result of litigation or other proceedings relating to patent and other
intellectual property rights; Our success will depend partly on our ability
to operate without infringing on or misappropriating the proprietary rights
of others;" and "Business - Licensing Agreements; Patents and Proprietary
Technology", as of its date and as of the Closing Date, do not contain any
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading.
(iv) To the best of such counsel's
knowledge, except as described in the Prospectus, and with the exception of
proceedings before the U.S. Patent and Trademark Office, there are no
pending, or threatened, legal or governmental proceedings relating to any of
the Patents and Patent Applications.
(v) To the best of such counsel's
knowledge, the License Agreements listed in Schedule I to the opinion grant
the Company rights in the patents and/or patent applications referred to in
the Prospectus that are listed in Schedule I to the opinion, and such License
Agreements are validly binding and enforceable under federal case law
relating to the licensing of patent rights.
(vi) To the best of such counsel's
knowledge, the Company owns each of the Patents and Patent Applications.
(vii) To the best of such counsel's
knowledge, no security interests have been recorded in the U.S. Patent and
Trademark Office with respect to any of the Patents and Patent Applications.
(viii) To the best of such counsel's
knowledge, no liens have been recorded against the Company with respect to
any of the Patents and Patent Applications.
(ix) To the best of such counsel's
knowledge, except as described in the Prospectus, and except for any rights
reserved to the United States Government, no third party has any rights to
any of the Patents and Patent Applications that are referred to in the
Prospectus and listed in Schedule I to the opinion.
(x) To the best of such counsel's
knowledge, except as described in the Prospectus, no interference has been
declared or provoked with respect to any of the Patents and Patent
Applications.
(xi) To the best of such counsel's
knowledge, the Company has not received any notice challenging the validity
or enforceability of any of the Patents and Patent Applications.
(xii) While there can be no guarantee that
any particular patent application will issue as a patent, each of the U.S.
Patent Applications that are referred to in the Prospectus and listed in
Schedule I to the opinion, was property filed, and is being properly and
diligently prosecuted, in the U.S. Patent and Trademark Office.
(xiii) For each U.S. patent application
listed in Schedule I to the opinion, all information known, to date, 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. ss. 1.97, to the U.S.
Patent and Trademark Office.
(xiv) Without any searches specifically
having been conducted, or having been required to have been conducted, for
the purpose of rendering the opinion, and while there can be no guarantee
that any particular patent application will issue as a patent, each of the
U.S. patent applications that are referred to in the Prospectus and listed in
Schedule I to the opinion, discloses patentable subject matter.
(xv) To the best of such counsel's
knowledge, without any searches having been conducted for the purpose of
rendering the opinion, no third party is infringing any of the Patents and
Patent Applications.
(xvi) To the best of such counsel's
knowledge, no claim that 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.
(d) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of [Xxxxxxxxx
Xxxxx], counsel for the Company, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form satisfactory to
Xxxxxxx, Phleger & Xxxxxxxx, LLP, counsel for the Underwriters,
(i) conflict with or violate any provision of the STATUTS of
DAS SAS, the articles of incorporation or other governing documents
("Organizational Documents") of the Company, or if any Investor is a corporation
or a partnership, the Organizational Documents of such Investor;
(ii) violate, conflict with or result in the breach or
termination of, or constitute a default, event of default (or an event which
with notice, lapse of time, or both, would constitute a default or event of
default), under the terms of, (I) any written contracts, agreements,
commitments, leases, licenses, mortgages, bonds, notes or other undertakings, or
(ii) any permits, authorizations, approvals, registrations and licenses, grants,
subsidies or financial assistance granted by or obtained from any governmental,
administrative or regulatory body, department, agency, commission, authority or
similar instrumentality ("Governmental Authority") to which the Company or DAS
SAS is a party;
19
(iii) constitute a violation by the Company, DAS SAS or any
of the Investors of any applicable laws, rules or regulations of any
Governmental Authority or any judgments, orders, rulings or awards of any court,
arbitrator or other judicial authority or any other Governmental Authority to
the Company or DAS SAS are subject.
(e) The sale and issuance of the Exchange Shares in accordance
with the Exchange constitute transactions exempt from the registration
requirements of Section 5 of the Act were effected in compliance, in all
respects, with applicable U.S. state securities laws, do not constitute an
"XXXXX PUBLIC A L'EPARGNE" as defined for French law purposes in article 6-I al.
1 of the ordinance no. 67-833 of September 28, 1967 as modified by law no.
95-546 of July 2, 1998 or a private placement subject to the information
requirements set froth in the COMMISSION DES OPERATIONS DE BOURSE (COB)
regulation no. 98-09 and shall not otherwise cause the Company or DAS SAS to
become subject to any requirements imposed by French law upon companies deemed
for French law purposes to have made an offering of securities to the public.
(f) No Consent, waiver, approval, authorization, exemption,
registration, license or declaration of or by, or filing with, any Governmental
Authority or any third party was required to be made or obtained by any of the
Company, DAS SAS or any of the Investors in connection with the consummation of
the Exchange.
(g) You shall have received from PriceWaterhouse Coopers LLP,
letters dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the forms
heretofore approved by WDR.
(h) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to the
matters referred to in subparagraphs (iv), (v), (viii) (with respect to the
Shares only), (ix) and (x) of paragraph (a) of this Section 6.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at which the
contents of the Registration Statement and Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus (except as to matters
referred to with respect to the Shares under subparagraph (viii) of paragraph
(a) of this Section 6), on the basis of the foregoing (relying as to materiality
to a large extent upon the opinions of officers and other
20
representatives of the Company), no facts have come to the attention of such
counsel which lead them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment 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 as of its date or any supplement
thereto as of its date 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, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
comment with respect to the financial statements and schedules and other
financial and statistical data included in the Registration Statement or
Prospectus).
(i) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement becomes
effective to which you object in writing.
(j) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act, at or before 5:00 P.M., New
York City time, on the date of this Agreement, unless a later time (but not
later than 5:00 P.M., New York City time, on the second full business day after
the date of this Agreement) shall be agreed to by the Company and you in writing
or by telephone, confirmed in writing; PROVIDED, HOWEVER, that the Company and
you and any group of Underwriters, including you, who have agreed hereunder to
purchase in the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
(k) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under the Act
or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto, or modifications thereof, if
any, shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and (iii) the Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(l) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, (i) no
material and unfavorable change, financial or otherwise (other than as referred
to in the Registration Statement and
21
Prospectus), in the business, condition or prospects of the Company and its
Subsidiaries taken as a whole shall occur or become known and (ii) no
transaction which is material and unfavorable to the Company shall have been
entered into by the Company or any of its Subsidiaries.
(m) The Company will, at the time of purchase or additional time
of purchase, as the case may be, deliver to you a certificate of two of its
executive officers to the effect that the representations and warranties of the
Company as set forth in this Agreement are true and correct as of each such
date, that the Company shall perform such of its obligations under this
Agreement as are to be performed at or before the time of purchase and at or
before the additional time of purchase, as the case may be and the conditions
set forth in paragraphs (f) and (g) of this Section 6 have been met.
(n) You shall have received signed letters, dated the date of
this Agreement, from each of the directors, officers and stockholders of the
Company to the effect that such persons shall not sell, offer or agree to sell,
contract to sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock of the Company or securities convertible
into or exchangeable or exercisable for Common Stock or warrants or other rights
to purchase Common Stock or any other securities of the Company that are
substantially similar to the Common Stock for a period of 180 days after the
date of the Prospectus without WDR's prior written consent.
(o) The Company shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and the
additional time of purchase, as the case may be, as you may reasonably request.
(p) The Shares shall have been approved for quotation on NASDAQ,
subject only to notice of issuance at or prior to the time of purchase or the
additional time of purchase, as the case may be.
(q) Between the time of execution of this Agreement and the time
of purchase or additional time of purchase, as the case may be, there shall not
have occurred any downgrading, nor shall any notice or announcement have been
given or made of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization," as that term is defined
in Rule 436(g)(2) under the Act.
22
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and Prospectus, (y) there has been any material adverse and unfavorable change,
financial or otherwise (other than as referred to in the Registration Statement
and Prospectus), in the operations, business, condition or prospects of the
Company and its Subsidiaries taken as a whole, which would, in your judgment or
in the judgment of such group of Underwriters, make it impracticable to market
the Shares, or (z) there shall have occurred any downgrading, or any notice
shall have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act or, if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or limitations or minimum prices shall have
been established on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any material outbreak or escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States as, in your judgment or in
the judgment of such group of Underwriters, to make it impracticable to market
the Shares.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Under-
23
writers shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6 and 7,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any li-
24
ability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term Prospectus for
the purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter through you to the Company expressly
for use with reference to such Underwriter in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Prospectus or necessary to
make such information not misleading.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Company in writing of the
institution of such Proceeding and the Company shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; PROVIDED, HOWEVER, that
the omission to so notify the Company shall not relieve the Company from any
liability which the Company may have to any Underwriter or any such person or
otherwise. Such Underwriter or such person shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of
25
such Underwriter or of such person unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense of
such Proceeding or the Company shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company shall not be liable for any settlement of any
Proceeding effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by or on behalf of such Un-
26
derwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or such Prospectus or necessary to make
such information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; PROVIDED, HOWEVER, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the
27
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable 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, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in subsec-
28
tion (c) above. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery of the
Shares. The Company and each Underwriter agree promptly to notify each other of
the commencement of any Proceeding against it and, in the case of the Company,
against any of the Company's officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at
____________________, Attention: __________________.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for
29
the Southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Company consents to the jurisdiction of
such courts and personal service with respect thereto. The Company hereby
consents to personal jurisdiction, service and venue in any court in which any
Claim arising out of or in any way relating to this Agreement is brought by any
third party against WDR or any indemnified party. Each of WDR and the Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts in the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
16. MISCELLANEOUS. WDR, an indirect, wholly owned subsidiary of
[ ], is not a bank and is separate from any affiliated bank, including
any U.S. branch or agency of WDR. Because WDR is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by WDR are not deposits,
are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
30
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
DRUGABUSE SCIENCES, INC.
By:
-----------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written, on
behalf of themselves
and the other several Underwriters
named in Schedule A
WARBURG DILLON READ LLC
By: WARBURG DILLON READ LLC
By: __________________________
Title:
By: __________________________
Title:
31
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
Warburg Dillon Read LLC
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
-----------
Total...............................
===========
32
