UNDERWRITING AGREEMENT
CV THERAPEUTICS, INC.
__________ Shares of Common Stock
Underwriting Agreement
_____________, 1998
X.X. Xxxxxx Securities Inc.
UBS Securities Inc.
Invemed Associates, Inc.
As Representatives of several underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CV Therapeutics, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters listed in Schedule I hereto
(the "Underwriters"), for whom you are acting as representatives(the
"Representatives") an aggregate of _________ shares of Common Stock, par
value $.001 per share, of the Company (the "Underwritten Shares") and, for
the sole purpose of covering over-allotments in connection with the sale of
the Underwritten Shares, at the option of the Underwriters, up to an
additional _________ shares of Common Stock, of the Company (the "Option
Shares"). The Underwritten Shares and the Option Shares are herein referred
to as the "Shares". The shares of Common Stock of the Company to be
outstanding after giving effect to the sale of the Shares are herein referred
to as the "Stock".
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it shall become effective including
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Shares is referred to
in this Agreement as the "Prospectus". If the Company
has filed an abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act, as of the date of the
Registration Statement or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the Registration Statement or the
Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Exchange Act") which, upon filing, are incorporated by reference therein, as
required by paragraph (b) of Item 12 of Form S-3. As used herein, the term
"Incorporated Documents" means the documents which at the time are
incorporated by reference in the Registration Statement, the Prospectus or
any other amendment or supplement thereto.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective number of Underwritten Shares set
forth opposite such Underwriter's name in Schedule I hereto at a purchase
price per share (the "Purchase Price") of $______.
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as hereinafter provided, and the Underwriters on the
basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, shall have the option to purchase,
severally and not jointly, from the Company up to an aggregate of ________
Option Shares at the Purchase Price, for the sole purpose of covering
over-allotments (if any) in the sale of Underwritten Shares by the several
Underwriters.
If any Option Shares are to be purchased, the number of Option Shares to
be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased
as the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following
the date of this Agreement, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares
as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for which may be the same date and
time as the Closing Date (as hereinafter defined), but shall not be earlier
than the Closing Date nor later than the tenth full
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Business Day (as hereinafter defined) in the event the option is exercised
three or more days prior to the Closing Date after the date of such notice
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Any such notice shall be given at least three Business
Days prior to the date and time of delivery specified therein.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Shares as soon after (A) the Registration Statement
has become effective and (B) the parties hereto have executed and delivered
this Agreement, as in the judgment of the Representatives is advisable and
(ii) initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior
to the Closing Date (as defined below), in the case of the Underwritten
Shares, on _____________, 1997, or at such other time on the same or such
other date, not later than the third Business Day after the date of this
Agreement or thereafter, as the Representatives and the Company may agree
upon in writing or, in the case of the Option Shares, on the date and time
specified by the Representatives in the written notice of the Underwriters'
election to purchase such Option Shares. The time and date of such payment
for the Underwritten Shares is referred to herein as the "Closing Date" and
the time and date for such payment for the Option Shares, if other than the
Closing Date, are herein referred to as the "Additional Closing Date". As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery
to the Representatives for the respective accounts of the several
Underwriters (including, without limitation, by "full-fast" electronic
transfer by Depository Trust Company) of the Shares to be purchased on such
date registered in such names and in such denominations as the
Representatives shall request in writing not later than three full Business
Days prior to the Closing Date or the Additional Closing Date, as the case
may be, with any transfer taxes payable in connection with the transfer to
the Underwriters of the Shares duly paid by the Company. The certificates
for the Shares will be made available for inspection and packaging by the
Representatives at the office of X.X. Xxxxxx Securities Inc. set forth above
not later than 1:00 P.M., New York City time, on the Business Day prior to
the Closing Date or the Additional Closing Date, as the case may be.
4. The Company represents and warrants to each Underwriter that:
(a) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Securities Act; no order
preventing or suspending the use of any preliminary prospectus has been issued
by the Commission, and the preliminary prospectus filed as part of the
Registration Statement complied, at the time the Registration Statement was
declared effective, in all material respects with the Securities Act, and did
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 were made, not
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misleading; provided that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use therein;
(b) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respect with the
requirements of the Exchange Act and the rules and regulations thereunder,
any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such document when it was filed
(or, if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein in light of the circumstances under
which they were made not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(c) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the Commission;
and the Registration Statement and Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, in all material respects with the
Securities Act and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of the date
of the Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the Closing
Date or Additional Closing Date, as the case may be, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly
for use therein;
(d) the financial statements, and the related notes thereto,
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company as of the
dates indicated and the results of its operations and changes in its
consolidated cash flows for the periods specified; and said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules incorporated by reference in the Registration Statement present
fairly the information required to be stated therein;
(e) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, with the exception of option
grants made to employees of or
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consultants to the Company, there has not been any change in the capital
stock or long-term debt of the Company, or any material adverse change, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus; and except as
set forth or contemplated in the Prospectus the Company has not entered into
any transaction or agreement (whether or not in the ordinary course of
business) material to the Company;
(f) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and corporate authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company;
(g) the Company does not own or control, directly or indirectly,
any interest in any other corporation, association, or other business entity
other than CV Therapeutics International, a dormant subsidiary;
(h) this Agreement has been duly authorized, executed and delivered
by the Company;
(i) the Company has an authorized capitalization as set forth in
the Prospectus and such authorized capital stock conforms as to legal matters
to the description incorporated by reference in the Prospectus, and all of
the outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully-paid and non-assessable and are not
subject to any pre-emptive or similar rights; and, except as described in or
expressly contemplated by the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options;
(j) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be duly
issued and will be fully paid and non-assessable and will conform to the
descriptions incorporated by reference in the Prospectus; and the issuance of
the Shares is not subject to any preemptive or similar rights;
(k) the Company is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, its Certificate
of Incorporation or By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
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Company is a party or by which it or any of its properties is bound, except
for violations and defaults which individually and in the aggregate are not
material to the Company; the issue and sale of the Shares and the performance
by the Company of its obligations under this Agreement and the consummation
of the transactions contemplated herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument which is material to the Company to which the Company is a party
or by which the Company is bound or to which any of the property or assets of
the Company is subject, except where such breach would not have a material
adverse affect on the Company; nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, or any of its properties; and no consent, approval,
authorization, order, license, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have
been obtained under the Securities Act and as may be required by the National
Association of Securities Dealers, Inc. (the "NASD"), or under state
securities or Blue Sky Laws in connection with the purchase and distribution
of the Shares by the Underwriters;
(l) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its properties or to which the Company is
or may be a party or to which any property of the Company is or may be the
subject which, if determined adversely to the Company, could individually or
in the aggregate have, or reasonably be expected to have, a material adverse
effect on the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company, and,
to the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and there
are no statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement or any Incorporated Document that are
not described or filed as required by the Securities Act or the Exchange Act,
as the case may be;
(m) the Company owns no real property, has good and marketable
title to all personal property owned by it, in each case free and clear of
all liens, encumbrances and defects except such as are described or referred
to in the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made of
such property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, existing and enforceable leases with such exceptions as are
not material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or its subsidiaries;
(n) The Company owns or possesses adequate licenses or other rights
to use all patents, copyrights, trademarks, service marks, trade names,
technology and know-how (collectively, the "Intellectual Property") necessary
(in any material respect) to conduct its business in the manner
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described in the Prospectus, the Company is not obligated (in any material
respect) to pay a royalty, grant a license, or provide other consideration to
any third party in connection with its patents, copyrights, trademarks,
service marks, trade names, or technology other than as disclosed in the
Prospectus, and, except as disclosed in the Prospectus, the Company has not
received any notice of infringement or conflict with (and the Company knows
of no infringement or conflict with) asserted rights of others with respect
to the Intellectual Property which could reasonably be expected to result in
any material adverse effect upon the Company and, except as disclosed in the
Prospectus, the discoveries, inventions, products or processes of the Company
referred to in the Prospectus do not, to the best knowledge of the Company,
infringe or conflict with any right or patent of any third party, or any
discovery, invention, product or process which is the subject of a patent
application filed by any third party, known to the Company which could have a
material adverse effect on the Company or its subsidiaries. Other than
pursuant to agreements with Syntex, the University of Florida Research
Foundation, Inc., Xxxxx XX, Biogen, Inc. and Biotech Manufacturing Ltd. and
other agreements that are not material, no third party including any academic
or governmental organization, possesses rights to the Intellectual Property
which, if exercised, could enable such third party to develop products
competitive to those of the Company or could have a material adverse effect
on the ability of the Company to conduct its business in the manner described
in the Prospectus.
(o) no relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required by
the Securities Act to be described in the Registration Statement or by the
Exchange Act to be described in any Incorporated Document and the Prospectus
which is not so described;
(p) no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issue and
sale of the Shares;
(q) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing
business with the Government of Cuba or with any person or affiliate located
in Cuba;
(s) Ernst & Young LLP, who have certified certain financial
statements of the Company, are independent public accountants as required by
the Securities Act;
(t) the Company has filed all federal, state, local and foreign tax
returns which have been required to be filed and have paid all taxes shown
thereon and all assessments received by it to the extent that such taxes have
become due and are not being contested in good faith; and, except as
disclosed in the Registration Statement and the Prospectus, there is no tax
deficiency which has been asserted or threatened against the Company;
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(u) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock;
(v) the Company owns, possesses or has obtained all material
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and
other tribunals, domestic or foreign, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
conducted as of the date hereof, and the Company not has received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and the
Prospectus; and the Company is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date hereof;
the Company is not in violation of any foreign, state or local law, order,
rule, regulation, writ, injunction or decree of any court or governmental
agency or body, including, but not limited to, the United States Food and
Drug Administration (the "FDA"); all of the descriptions in the Registration
Statement and Prospectus of the legal and governmental proceedings by or
before the FDA or any foreign, state or local government body exercising
comparable authority are true, complete and accurate in all material respects;
(w) the human clinical trials conducted by the Company or in which
the Company has participated that are described in the Registration Statement
and Prospectus, or the results of which are referred to in the Registration
Statement and Prospectus, and, to the best of the Company's knowledge, such
studies and tests conducted on behalf of the Company, were and, if still
pending, are being, conducted in accordance with experimental protocols,
procedures and controls pursuant to accepted professional scientific
standards; the descriptions of the results of such studies, tests and trials
contained in the Registration Statement and Prospectus are accurate and
complete in all material respects; and the Company has not received any
notices or correspondence from the FDA or any other governmental agency
requiring the termination, suspension or modification of any clinical trials
conducted by, or on behalf of, the Company or in which the Company has
participated that are described in the Registration Statement and Prospectus
or the results of which are referred to in the Registration Statement and
Prospectus;
(x) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company which are likely
to have a material adverse effect on the Company;
(y) the Company (i) is 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 all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) is in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure
to
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comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
Company;
(z) in the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect on the
Company; and
(aa) each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA")
that is maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and its
affiliates has been maintained in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended, ("Code"). No prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code has occurred with respect to any
such plan excluding transactions effected pursuant to a statutory or
administrative exemption. For each such plan which is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA no "accumulated
funding deficiency" as defined in Section 412 of the Code has been incurred,
whether or not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid contributions) exceeded
the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430A under the Securities Act and to furnish copies of
the Prospectus to the Underwriters in New York City prior to 10:00 a.m., New
York City time, on the Business Day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the Representatives
(i) four (4) signed copies of the Registration Statement (as originally filed)
and each amendment thereto, in each case including exhibits, and, upon request,
to each other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without exhibits,
(ii) four copies of the Incorporated Documents, without exhibits, as
you may request, (iii) three copies of the exhibits to the Incorporated
Documents, and (iv) during the period mentioned in paragraph (e) below, to each
of the Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) as the Representatives may reasonably request;
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(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, and, prior to the end of the period
of time referred to in subsection (e) below, before filing any document which
upon filing becomes an Incorporated Document, to furnish to the
Representatives a copy of the proposed document for review and not to file
any such proposed document to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm such
advice in writing (i) when the Registration Statement has become effective,
(ii) when any amendment to the Registration Statement has been filed or
becomes effective, (iii) when any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose, (vi) of the occurrence of any event, within the period referenced in
paragraph (e) below, as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, and (vii) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts
to prevent the issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or of any
order suspending any such qualification of the shares, or notification of any
such order thereof and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with sales by the Underwriters or any dealer, any
event shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, or to file under the Exchange Act so as to comply therewith
an amendment to any Incorporated Document, forthwith to prepare and furnish,
at the expense of the Company, to the Underwriters and to the dealers (whose
names and addresses the Representatives will furnish to the Company) to which
Shares may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in
the Prospectus as so amended or amendment to such Incorporated Document
supplemented will not, in the light of the circumstances when the Prospectus
is delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
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(f) to endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so long
as reasonably required for distribution of the Shares; PROVIDED that the
Company shall not be required to file a general consent to service of process
in any jurisdiction;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder;
(h) so long as the Shares are outstanding, to furnish to the
Representatives copies of all reports or other communications (financial or
other) furnished to holders of the Shares, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) for a period of 90 days after the date of the offering of the
Shares not to (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Stock or any securities convertible
into or exercisable or exchangeable for Stock or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Stock
or such other securities, in cash or otherwise without the prior written
consent of X.X. Xxxxxx, other than the Shares to be sold hereunder and any
shares of Stock of the Company issued upon the exercise of options or
warrants outstanding as of the date hereof and additional options granted
under the Company's 1994 Equity Incentive Plan, as amended, 1992 Stock Option
Plan, as amended or Non-Employee Directors' Stock Option Plan, and any shares
of Stock issued under the Employee Stock Purchase Plan;
(j) to use the net proceeds received by the Company from the sale
of the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) to use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations National
Market (the "Nasdaq National Market");
(l) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution and delivery of
the Shares, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification of
the Shares under the laws of such jurisdictions as the Representatives may
designate
-11-
(including fees of counsel for the Underwriters and its disbursements), (iv)
in connection with the listing of the Shares on the Nasdaq National Market,
(v) related to the filing with, and clearance of the offering by, the
National Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of
this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement, the Prospectus and Incorporated Documents, including mailing and
shipping, as herein provided, (vii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors, (viii) the
cost of preparing stock certificates and (ix) the cost and charges of any
transfer agent and any registrar.
6. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date or the Additional Closing Date, as the case
may be, are subject to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than
5:00 P.M., New York City time, on the date hereof; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section 5(a)
hereof; and all requests for additional information shall have been complied
with to the satisfaction of the Representatives;
(b) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date or the Additional
Closing Date, as the case may be, as if made on and as of the Closing Date or
the Additional Closing Date, as the case may be, and the Company shall have
complied with all agreements and all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date or the Additional
Closing Date, as the case may be;
(c) since the respective dates as of which information is given in
the Prospectus, with the exception of option grants to employees of or
consultants to the Company, there shall not have been any change in the
capital stock or long-term debt of the Company or any material adverse change
in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated in the Prospectus; and the
Company has not sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus;
-12-
(d) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a
certificate of an executive officer of the Company, with specific knowledge
about the Company's financial matters, satisfactory to the Representatives to
the effect set forth in subsections (a) and (b) (with respect to the
respective representations, warranties, agreements and conditions of the
Company) of this Section and to the further effect that there has not
occurred any material adverse change in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole
from that set forth or contemplated in the Prospectus, as amended or
supplemented if applicable;
(e) Xxxxxx Godward LLP, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Closing
Date or the Additional Closing Date, as the case may be, in form and
substance satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction
of incorporation, corporate with power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and to the best of such counsel's
knowledge is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
taken as a whole;
(iii) to the best of such counsel's knowledge, there are no
legal or governmental investigations, actions, suits or proceedings pending
or, to the best of such counsel's knowledge, threatened against or affecting
the Company or any of its properties; and such counsel does not know of any
contracts or other documents that are required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement or any Incorporated Document that are not described or
filed as required;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the authorized capital stock of the Company conforms as
to legal matters to the description thereof incorporated by reference in the
Prospectus;
(vi) the shares of capital stock of the Company outstanding
prior to the issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable;
(vii) the Shares have been duly authorized, and when delivered
to and paid for the Underwriters in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable and the
issuance of the Shares is not subject to any preemptive or to the best of
such counsel's knowledge similar rights;
-13-
(viii) the statements in the Prospectus under "Business --
Licenses and Collaborations," and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of legal matters, documents
or proceedings referred to therein, fairly present the information required
to be presented under the Securities Act with respect to such terms, legal
matters, documents or proceedings;
(ix) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements thereto
(other than the financial statements and related schedules and financial and
statistical data derived therefrom and included therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the rules and regulations of
the Commission thereunder; each of the Incorporated Documents (other than the
financial statements and related schedules and financial and statistical data
derived therefrom and included therein, as to which counsel need express no
opinion) complies as to form in all material respects with the Exchange Act
and the rules and regulations of the Commission thereunder; such counsel
believes that (other than the financial statements and related schedules and
financial and statistical data derived therefrom and included or incorporated
by reference in the Registration Statement Prospectus or any Incorporated
Document, as to which such counsel need express no belief), the Registration
Statement (including the Incorporated Documents) and the Prospectus included
therein at the time the Registration Statement became effective did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus, as amended or supplemented,
if applicable, does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(x) to the best knowledge of such counsel, the Company is
not, nor, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or By-Laws
or, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to which the Company is a party or by which it or any of
its properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company; the issue
and sale of the Shares being delivered on the Closing Date or the Additional
Closing Date, as the case may be; the performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, the Certificate of
Incorporation or the By-Laws of the Company or any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will
any such action result in any violation of the provisions of or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency so far as is known to such counsel or body having
jurisdiction over the Company or any of its properties; other than as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters as to which such
counsel need express no opinion;
-14-
(xi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Shares or the consummation of
the other transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications
as have been obtained under the Securities Act and; except as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters as to which such counsel need
express no opinion;
(xii) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company", as such
terms are defined in the Investment Company Act;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States
and the States of California and Delaware, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B) as to matters
of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The
opinion of such counsel for the Company shall state that the opinion of any
such other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are
justified in relying thereon. With respect to the matters to be covered in
subparagraph (ix) above counsel may state their opinion and belief is based
upon their participation in the preparation of the Registration Statement and
the Prospectus and any amendment or supplement thereto and review and
discussion of the contents thereof but is without independent check or
verification except as specified.
The opinion of Xxxxxx Godward LLP described above and the opinions of
Saliwanchik & Saliwanchik and McDonnell, Boehnen, Xxxxxxx & Xxxxxxxx, Ltd.
described below each shall be rendered to the Underwriters at the request of
the Company and shall so state therein;
(f) Saliwanchik & Saliwanchik, special intellectual property
counsel for the Company, shall have furnished to the Representatives their
written opinion, dated the Closing Date or the Additional Closing Date, as
the case may be, in form and substance satisfactory to the Representatives,
to the effect that:
(i) such counsel represents the University of Florida
(hereinafter, the "University") and the University of Florida Research
Foundation Inc. (hereinafter "UFRFI") in certain matters relating to
intellectual property, including patents related to CVT-124;
(ii) such counsel is familiar with CVT-124 as used by the Company
in its business and the manner of its use and has read the portions of the
Registration Statement and the Prospectus entitled "Risk Factors -- Uncertainty
of Patent Position and Proprietary Rights" and "Business -- Patents and
Proprietary Technology" (collectively, the "Intellectual Property Portion");
-15-
(iii) the Intellectual Property Portion contains accurate
descriptions of the patent applications filed in the United States and
outside the United States related to CVT-124 (the "CVT-124 Applications") and
issued and allowed patents related to CVT-124 (the "CVT-124 Patents")
licensed to the Company by UFRFI, each of which CVT-124 Applications and
CVT-124 Patents shall be listed on exhibits to such opinion, and fairly
summarizes the legal matters, documents and proceedings relating thereto;
(iv) based upon a review of the third party rights made known
to counsel, namely, pending foreign or international applications EP-A 0 374
808; DE 4,324,944; and WO 94/26743, and discussions with scientific personnel
of the Company and the University, such counsel is not aware of any valid
United States or foreign patent that is or would be infringed by the
activities of the Company in the manufacture, use, or sale of any presently
proposed product, the technologies employed by the Company, or the method of
their use in any presently proposed product, each as described in the
Prospectus and solely as the foregoing relates to CVT-124. Such counsel has
made not independent search and therefore has not performed an infringement
analysis relating to CVT-124 based on such a search;
(v) such counsel has reviewed the CVT-124 Applications, which
CVT-124 Applications are described in the Intellectual Property Portion, and
in the opinion of such counsel the CVT-124 Applications have been properly
prepared and filed, and are being diligently pursued by UFRFI, and the
inventions described in the CVT-124 Applications are licensed to the Company;
(vi) to such counsel's knowledge, no entity or individual
other than the Company and UFRFI has any right or claim in any of the
inventions, the CVT-124 Patents, the CVT-124 Applications, or any patent to
be issued therefrom;
(vii) such counsel is aware of no pending or threatened claim,
suit, judicial or governmental proceedings relating to the CVT-124 Patents or
the CVT-124 Applications or the subject matter therein, based upon review of
the CVT-124 Patents and the CVT-124 Applications, such counsel is not aware
of any rights of third parties to any of the inventions described in the
CVT-124 Patents or the CVT-124 Applications which could reasonably be
expected to materially affect the ability of the Company to conduct its
business as described in the Prospectus, including the commercialization of
its products currently under development; and
(viii) such counsel has no reason to believe that the
information contained in the Intellectual Property Portion of the
Registration Statement or the Prospectus, solely as the foregoing relates to
the CVT-124 Patents and CVT-124 Applications, at the time it became
effective contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that, at the Closing Date, the
information contained in the Intellectual Property Portion of the Prospectus
or any amendment or supplement to the Intellectual Property Portion of the
Prospectus, solely as the foregoing relates to the CVT-124 Patents and
CVT-124 Applications, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
-00-
(x) XxXxxxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx, Ltd., intellectual
property counsel for the Company, shall have furnished to the Representatives
their written opinion, dated the Closing Date or the Additional Closing Date,
as the case may be, in form and substance satisfactory to the
Representatives, to the effect that:
(i) such counsel represents the Company in certain matters
relating to intellectual property, including patents, trade secrets and
certain trademark matters, related to the Company's products under
development as described in the Prospectus, other than CVT-124;
(ii) such counsel is familiar with the foregoing technology
and products as used by the Company in its business and the manner of its use
and has read the portions of the Registration Statement and the Prospectus
entitled "Risk Factors -- Uncertainty of Patent Position and Proprietary
Rights" and "Business -- Patents and Proprietary Technology" (collectively,
the "Intellectual Property Portion");
(iii) the Intellectual Property Portion contains accurate
descriptions of the patent applications filed in the United States and
outside the United States related to the foregoing technology and products
(the "CVT Applications") and issued and allowed patents related to the
foregoing technology and products (the "CVT Patents") and including those
patent applications licensed to the Company (the "Licensed Applications") and
the patents licensed to the Company (the "Licensed Patents"), (the CVT
Applications and the Licensed Applications are referred to collectively
herein as the "Company Applications," and the CVT Patents and the Licensed
Patents are referred to collectively herein as the "Company Patents") each of
which Company Applications, Company Patents shall be listed on exhibits to
such opinion, and fairly summarizes the legal matters, documents and
proceedings relating thereto;
(iv) based upon a review of the third party rights made known
to counsel and discussions with scientific personnel of the Company, such
counsel is not aware of any valid United States or foreign patent, that is or
would be infringed by the activities of the Company in the manufacture, use
or sale of any presently proposed product, the technologies employed by the
Company or the method of their use in any presently proposed product, each as
described in the Prospectus and as such are related to the foregoing
technology and products;
(v) such counsel has reviewed the Company Applications, which
Company Applications are described in the Intellectual Property Portion, and
in the opinion of such counsel the Company Applications have been properly
prepared and filed, and are being diligently pursued by the Company, and the
inventions described in the Company Applications are owned by, assigned or
licensed to the Company;
(vi) to such counsel's knowledge, no other party or individual
has any right or claim in any of the inventions, the Company Patents, the
Company Applications, or any patent to be issued therefrom, and in such
counsel's opinion each of the Company Applications discloses patentable
subject matter;
-17-
(vii) such counsel is aware of no pending or threatened claim,
suit, judicial or governmental proceedings relating to the Company Patents or
the Company Applications or the subject matter therein, based upon review of
the Company Patents and the Company Applications, such counsel is not aware
of any rights of third parties to any of the inventions described in the
Company Patents or the Company Applications which could reasonably be
expected to materially affect the ability of the Company to conduct its
business as described in the Prospectus, including the commercialization of
its products currently under development; and
(viii) such counsel has no reason to believe that the
information contained in the Intellectual Property Portion of the
Registration Statement or the Prospectus at the time it became effective
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, at the Closing Date, the
information contained in the Intellectual Property Portion of the Prospectus
or any amendment or supplement to the Intellectual Property Portion of the
Prospectus contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(h) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing
Date, as the case may be, Ernst & Young LLP shall have furnished to you
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the
Underwriters, with respect to the due authorization and valid issuance of the
Shares, the Registration Statement, the Prospectus and other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(j) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the
Nasdaq National Market;
(k) on or prior to the Closing Date or Additional Closing Date, as
the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives shall reasonably
request; and
(l) the "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other dispositions of
shares of Stock or certain other securities, delivered to you on or before
-18-
the date hereof, shall be in full force and effect on the Closing Date or
Additional Closing Date, as the case may be.
7. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request
of the Indemnified Person, shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties
in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Underwriters and such control persons of
Underwriters shall be
-19-
designated in writing by X.X. Xxxxxx Securities Inc. and any such separate
firm for the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the Indemnifying Person 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 90 days
after receipt by such Indemnifying Person of the aforesaid request, (ii) such
fees and expenses are in excess of $50,000 and (iii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (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 the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, 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 net proceeds
from the offering (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation that does not take
-20-
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no
event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7 are several in proportion to the respective number of Shares
set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares)
may be terminated in the absolute discretion of the Representatives, by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (or, in the case of the Option
Shares, prior to the Additional Closing Date) (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any
of the New York Stock Exchange or the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading
of any securities of or guaranteed by the Company shall have been suspended
on any exchange or in any over-the-counter market, (iii) a general moratorium
on commercial banking activities in New York shall have been declared by
either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Shares being delivered
at the Closing Date or the Additional Closing Date, as the case may be, on
the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
-21-
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they have agreed to purchase hereunder on such date, and
the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of Shares to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
number of Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Underwritten Shares set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions
as the Representatives may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; PROVIDED that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If on
the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter or Underwriters shall fail or refuse to purchase Shares which it
or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Shares to be purchased on such date, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Shares are not made within 36 hours after such default, this
Agreement (or the obligations of the several Underwriters to purchase the
Option Shares, as the case may be) shall terminate without liability on the
part of any non-defaulting Underwriter or the Company. In any such case
either you or the Company shall have the right to postpone the Closing Date
(or, in the case of the Option Shares, the Additional Closing Date), but in
no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
its counsel) reasonably incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Shares from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of
the Underwriters, and any such action taken by
-22-
the Representatives jointly or by X.X. Xxxxxx Securities Inc. alone shall be
binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be given to the Representatives, c/o X.X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax: (212)
648-5705); Attention: Syndicate Department. Notices to the Company shall be
given to it at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX 00000 (telefax: (415)
858-0390); Attention: President, with a copy to Xxxxxx Godward LLP, 0000 Xx
Xxxxxx Xxxx, Xxxx Xxxx, XX 00000; Attention: Xxxx X. Xxxxxxxxx, Esq.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
-23-
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
CV THERAPEUTICS, INC.
By:
---------------------------------------
Title: Xxxxx Xxxxx, Chief Executive
Officer
Accepted: _____________, 1997
X.X. Xxxxxx Securities Inc.
Invemed Associates, Inc.
UBS Securities Inc.
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By:
----------------------------------
Title:
-24-
SCHEDULE I
NUMBER OF SHARES
UNDERWRITER TO BE PURCHASED
------------------------------------------- -------------------
X.X. Xxxxxx Securities Inc. . . . . . . .
UBS Securities LLC . . . . . . . . . . . .
Invemed Associates, Inc. . . . . . . . . .
__________
Total:
