EXHIBIT 1.1
2,500,000 Shares
(Subject to increase of up to 375,000
additional shares to cover over-allotments)
OSIRIS THERAPEUTICS, INC.
(a Delaware corporation)
Common Stock
(par value $0.001 per share)
UNDERWRITING AGREEMENT
_______________, 1997
SBC WARBURG DILLON READ INC.
XXXXXXXXX & XXXXX LLC,
as Managing Underwriters
c/o SBC WARBURG DILLON READ INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Osiris Therapeutics, Inc. (the "Company") proposes to issue and sell to the
underwriters named in Schedule A annexed hereto (the "Underwriters") an
aggregate of 2,500,000 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 375,000 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, 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
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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, 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 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 the other 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 the other terms end 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 at any time
(but not more than once) on or before the thirtieth (30th) 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
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1 As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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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).
The Underwriters agree to offer to Xxxxxxx Corporate Finance AG ("Xxxxxxx")
or its designees, and to permit Xxxxxxx or such designees to purchase, 250,000
of the Firm Shares and 10% of the aggregate number of Additional Shares as to
which the option referred to in the immediately preceding paragraph is
exercised, as part of and subject to the terms and conditions of the public
offering contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by certified or official bank check, in New
York Clearing House funds, or by wire transfer of immediately available funds at
the office of SBC Warburg Dillon Read Inc. in New York City, against delivery of
the certificates for the Firm Shares to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on _____________, 1997 (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 on 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) when the Registration Statement becomes effective, the
Registration Statement and the Prospectus will 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
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light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no warranty or representation with respect to
any 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;
(b) as of the date of this Agreement, the Company has an authorized
capitalization as set forth 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; 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 power and authority
to own its properties and conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement and to issue
and sell the Shares as herein contemplated;
(c) the Company and each of its subsidiaries (the "Subsidiaries") are
duly qualified or licensed by and are in good standing in 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 would have a
material adverse effect on the operations, business or condition of the Company
and its Subsidiaries, taken as a whole; and 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 such jurisdictions;
(d) 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 constitute a breach of, or 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 agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which any of them is
bound, except where such breach or default, singly or in the aggregate, would
not have a material adverse effect on the condition, business, net worth or
results of operations of the Company and its Subsidiaries, taken as a whole, and
the execution, delivery and performance of this Agreement 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 constitute a breach of, or 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 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, except where such breach
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or default, singly or in the aggregate, would not have a material adverse effect
on the condition, business, net worth or results of operations of the Company
and its Subsidiaries, taken as a whole;
(e) 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, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws or
principles of public policy, and subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratoriums and
other laws relating to or affecting creditors' rights generally and by general
equitable principles;
(f) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus, and 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;
(g) 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 as contemplated hereby, other than registration of the Shares under the
Act and the Securities Exchange Act of 1934, as amended, or the rules and
regulations thereunder (collectively, the "Exchange 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;
(h) except as described in the Prospectus, no person has the right
(other than rights that have been waived), contractual or otherwise, to cause
the Company to issue to it 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, rights of first refusal or other rights to purchase any
of the Shares;
(i) Coopers & Xxxxxxx L.L.P., 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;
(j) except as described in the Prospectus, 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, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to conduct
its respective business, except for licenses, authorizations, consents and
approvals the lack of which, and filings the failure of which to make, would not
have a material adverse effect on the Company and its Subsidiaries taken as a
whole; neither the Company nor any of its
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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 would have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(k) all legal or governmental proceedings, contracts or documents of
a character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required;
(l) there are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their respective
properties, 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 reasonably be expected to result in a judgment, decree or order
having a material adverse effect on the business, condition, prospects or
property of the Company and its Subsidiaries taken as a whole;
(m) the audited 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 changes in financial position of the
Company and its Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved, except as
disclosed therein;
(n) the Company and each of its Subsidiaries has filed all tax
returns required to be filed, which returns are complete and correct in all
material respects, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto;
(o) except as disclosed in the Prospectus, no holder of any security
of the Company has any right (other than rights that have been validly waived)
to require registration under the Act of shares of Common Stock or any other
security of the Company because of the filing of the registration statement or
the consummation of the transactions contemplated by this Agreement and, except
as disclosed in the Prospectus, no person has the right (other than rights that
have been validly waived) to require registration under the Act of any shares of
Common Stock or other securities of the Company. No person has the right (other
than rights that have been validly waived), contractual or otherwise, to cause
the Company to permit such person to underwrite the sale of any of the Shares.
Except as described in or contemplated by the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance of, and
there are no firm commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any of its Subsidiaries or any security
convertible into or exchangeable or exercisable for capital stock of the Company
or any of its Subsidiaries;
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(p) except as described in the Prospectus, the Company and its
Subsidiaries own or possess all patents, trademarks, trademark registrations,
service marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as being owned
by them or any of them or necessary for the conduct of their respective
businesses as currently being conducted, and the Company is not aware of any
pending or threatened claim to the contrary or any challenge by any other person
to the rights of the Company and its Subsidiaries or any facts or circumstances
reasonably likely to lead to a valid claim of infringement with respect to the
foregoing;
(q) the Company is not now, and after sale of the Shares to be sold
by it hereunder and application of the net proceeds from such sale as described
in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended;
(r) the Company is in compliance with all provisions of Florida
Statutes, Section 517.075, and the regulations thereunder, relating to issuers
doing business with Cuba;
(s) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not been
(A) any material and unfavorable change, financial or otherwise, in the
business, properties, prospects, regulatory environment, results of operations
or condition (financial or otherwise), present or prospective, of the Company
and its Subsidiaries taken as a whole, (B) any transaction, which is material to
the Company and its Subsidiaries taken as a whole, entered into by the Company
or any of its Subsidiaries or (C) any obligation, contingent or otherwise,
directly or indirectly incurred by the Company or any of its Subsidiaries which
is material to the Company and its Subsidiaries taken as a whole; and
(t) the Company has obtained the agreement of each of its directors
and officers and certain of its stockholders designated by you not 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 for Common Stock or warrants or other rights to purchase Common
Stock for a period of 180 days after the date of the Prospectus.
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 to promptly advise you of the
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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 you 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 reasonably request for the purposes
contemplated by 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 reasonably object in
writing;
(e) 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, and (iii) such other information as you may
reasonably request regarding the Company or its Subsidiaries;
(f) 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
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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;
(g) 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 and ending not
later than 15 months after such date, as soon as is reasonably practicable after
the termination of such twelve-month period;
(h) to furnish to you three(2) 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;
(i) 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 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(c)
of this Agreement;
(j) 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;
(k) to pay all 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 (iv) 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 issue, sale and
delivery of the Shares, (iii) the word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any
Statements of Information and Powers of Attorney and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and 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
-------------------
2 One copy for each Managing Underwriter and one copy for counsel for the
Underwriters.
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(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 National
Association of Securities Dealers, Inc. (the "NASD") and (vii) the performance
of the Company's other obligations hereunder;
(l) 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 Sections 13, 14 or 15(d) of the Exchange Act;
(m) not 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 for Common Stock or warrants or
other rights to purchase 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, issuances of Common Stock
upon the exercise of outstanding options, warrants and debentures and grants of
stock options under existing employee benefit plans, for a period of 180 days
after the date hereof, without the prior written consent of SBC Warburg Dillon
Read Inc.; and
(n) to use its best efforts to cause the Common Stock to be listed on
the Nasdaq National Market (the "Exchange").
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than a default by one or more of the Underwriters
in its or their respective obligations hereunder, the Company shall reimburse
the Underwriters for all of their reasonable out-of-pocket expenses, including
the fees and disbursements of their counsel, incurred by the Underwriters in
connection with this Agreement and the offering contemplated hereby.
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
conditions:
(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 Xxxxx &
Xxxxxxx L.L.P., counsel
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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 reasonably satisfactory to
Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the Underwriters, stating that:
(i) the Company was incorporated, and is validly existing and in
good standing as of the date of the certificate specified in the opinion, under
the laws of the State of Delaware, with corporate power and corporate authority
to own its properties and conduct its business as described in the Registration
Statement and the Prospectus;
(ii) each of the Subsidiaries was incorporated, and is validly
existing and in good standing, as of the date of the certificate specified in
the opinion, under the laws of its respective jurisdiction of incorporation with
corporate power and corporate authority to own its respective properties and to
conduct its respective business as described in the Registration Statement and
the Prospectus, and, except for Gryphon Pharmaceuticals, Inc., of which the
Company owns of record 65% of the outstanding voting stock, all of the
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and, assuming the receipt of the consideration therefor as provided
in resolutions of the Subsidiaries' Board of Directors authorizing the issuance
thereof, are validly issued, are fully paid and nonassessable, and are owned of
record by the Company;
(iii) the Company and each of its Subsidiaries are authorized
to transact business as a foreign corporation in the states set forth in such
opinion as of the respective dates of the certificates specified therein;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the authorized, issued and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the Prospectus.
All shares of capital stock of the Company shown as issued and outstanding under
said caption are duly authorized and, assuming the receipt of consideration
therefor as provided in the resolutions of the Company's Board of Directors
authorizing the issuance thereof, are validly issued, fully paid and
nonassessable;
(vi) the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and, except
as disclosed in the Prospectus, free of any statutory preemptive right under the
Delaware General Corporation Law or, to such counsel's knowledge, any
contractual right to subscribe for any of the Shares;
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(vii) the Shares conform in all material respects as to legal
matters to the description thereof contained in the Prospectus under the caption
"Description of Capital Stock";
(viii) the form of certificate for the Shares complies with
the requirements of the Delaware General Corporation Law;
(ix) the Registration Statement and the Prospectus (except as to
the financial statements and notes thereto and the supporting schedules and
other financial and statistical data included therein or omitted therefrom, 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, the required filings of the Prospectus pursuant to Rule 424(b) promulgated
pursuant to the Securities Act have been made in the manner and within the time
period required by Rule 424(b) and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are threatened by the
Commission;
(xi) no approval, authorization, consent or order of or filing
with any Delaware court or governmental agency is required to be obtained or
made by the Company in connection with the execution, delivery and performance
as of the time of purchase by the Company of this Agreement;
(xii) the execution, delivery and performance of this
Agreement by the Company as of the date of purchase do not (a) violate the
charter or by-laws of the Company or any of its Subsidiaries, (b) breach or
constitute a default under any agreement or contract to which the Company or any
of its Subsidiaries is a party filed as an exhibit to the Registration
Statement, or (c) violate any applicable law, rule, regulation, order, judgment
or decree of any Delaware or Maryland court or governmental agency.
In addition to the foregoing opinions, such counsel shall state that during
the course of preparation of the Registration Statement, such counsel has
participated in conferences with officers and other representatives of the
Company, with representatives of the independent public accountants of the
Company and with the Underwriters and representatives of the Underwriters.
While such counsel has not undertaken to determine independently, and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements in the Registration Statement or the Prospectus, such counsel may
state that on the basis of these conferences and its activities as counsel to
the Company in connection with the Registration Statement, that no facts have
come to the attention of such counsel which cause them to believe that (i) the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements
12
therein not misleading, or that the Prospectus, as of its date and as of the
time of purchase and the additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, (ii) there are any
legal or governmental proceedings pending or threatened against the Company that
are required to be disclosed in the Registration Statement or the Prospectus,
other than those disclosed therein, or (iii) there are any contracts or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not described or referred to therein or so filed; provided that in making
the foregoing statements (which shall not constitute an opinion), such counsel
is not expressing any views as to the financial statements and the notes thereto
and the supporting schedules and other financial and statistical information and
data included in or omitted from the Registration Statement or the Prospectus or
as to any patent matters relating to the Company which are addressed in an
opinion letter to the Underwriters of Carella, Byrne, Bain, Gilfillan, Xxxxxx,
Xxxxxxx & Xxxxxxx, P.C.
In rendering their opinion as aforesaid, counsel may limit their opinion to
the federal securities laws of the United States and regulations thereunder, the
General Corporation Law of the State of Delaware and the laws of the State of
Maryland (excluding blue sky laws).
(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 Carella,
Byrne, Bain, Gilfillan, Xxxxxx, Xxxxxxx & Xxxxxxx, P.C., patent 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 Manatt, Xxxxxx & Xxxxxxxx,
LLP, stating that:
(i) To such firm's knowledge, the statements in the Registration
Statement and Prospectus (A) under the caption "Risk Factors -- Uncertainty
Regarding Patents and Proprietary Rights," (B) under the caption "Business --
Patents and Proprietary Rights" and (C) elsewhere in the Registration Statement
or Prospectus concerning the patents and patent applications either owned or
licensed by the Company, in all material respects are accurate statements or
summaries of the matters set forth therein;
(ii) Such counsel is not aware of any pending or threatened
action, suit, proceeding or claim by others that the Company is infringing or
otherwise violating any patents, trademarks, trade secrets, know-how or other
proprietary rights;
(iii) Such counsel is not aware of any pending or threatened
action, suit, proceeding, or claim by others challenging the validity or scope
of the patent applications or the patents held by or licensed to the Company;
13
(vi) No facts have come to the attention of such counsel
which would form a basis for the belief that (a) the Registration Statement or
any amendment thereto at the time it became effective or (b) the Prospectus, as
amended or supplemented, contain any untrue statement of a material fact with
respect to the patent position or proprietary rights of the Company, or omit to
state any material fact relating to the patent position or proprietary rights of
the Company, which is necessary to make the statements contained therein not
misleading.
(c) You shall have received from Coopers & Xxxxxxx L.L.P., 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 the Managing Underwriters.
(d) 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
Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to such
matters as you may request.
(e) 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 reasonably object in writing.
(f) 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.
(g) 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.
14
(h) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, no material and
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, condition or prospects
of the Company and its Subsidiaries taken as a whole shall occur or become
known.
(i) 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 and the conditions set forth in paragraph
(f) and paragraph (g) have been met and that they are true and correct as of
each such date.
(j) You shall have received signed letters, dated the date of this
Agreement, from each of the directors and officers of the Company and certain
stockholders of the Company designated by you to the effect that such persons
shall not 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 for Common Stock or warrants or
other rights to purchase Common Stock for a period of 180 days after the date of
the Prospectus without the prior written consent of SBC Warburg Dillon Read Inc.
(k) 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.
(l) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof at or before the time of
purchase and at or before the additional time of purchase, as the case may be.
(m) The Shares shall have been approved for listing on the Exchange,
subject only to notice of issuance at or prior to the time of purchase.
(n) 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 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 of the Company by any "nationally
recognized statistical rating organization", as that term is defined in Rule
436(g)(2) promulgated under the Act.
15
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 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 of the Company
by any "nationally recognized statistical rating organization", as that term is
defined in Rule 436(g)(2) promulgated 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 shall have been suspended or minimum prices shall
have been established on the New York Stock Exchange, 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(k), 5 and 9 hereof), and the Underwriters 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.
16
8. Increase in Underwriters' Commitments. If any Underwriter shall
default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder 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 principal amount 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.
9. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its 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, from and against any loss, 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 or
otherwise insofar as such loss, 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
17
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, 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 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 either such Registration Statement
or Prospectus or necessary to make such information not misleading, provided,
however, that the indemnity agreement contained in this subsection (a) with
respect to any Preliminary Prospectus or amended Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
expense, liability or claim purchased the Shares which is the subject thereof
if the Prospectus corrected any such alleged untrue statement or omission and
if such Underwriter failed to send or give a copy of the Prospectus to such
person at or prior to the written confirmation of the sale of such Shares to
such person.
If any action 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 action and the Company shall
assume the defense of such action, 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 they 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 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
action or the Company shall not have employed counsel to have charge of the
defense of such action 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 those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
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 any one action or series of related actions in
the same jurisdiction representing the indemnified parties who are parties to
such action). The Company shall not be liable for any settlement of any such
claim or action 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
18
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.
(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 from and against any loss, 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 or otherwise, insofar as such loss,
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 Underwriter
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 either
in such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any action 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 action and such Underwriter
shall assume the defense of such action, 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 they 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 action or such
Underwriter shall not have employed counsel to have charge of the defense of
such action 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 those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action on
behalf of the
19
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 any one action or series of related actions
in the same jurisdiction representing the indemnified parties who are parties to
such action). No Underwriter shall be liable for any settlement of any such
claim or action 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 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, 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, 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, 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
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters. 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
20
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, expenses, liabilities and
claims referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any claim or action.
(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 subsection (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 damages 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 Underwriter's 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 directors or
officers or any 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 and 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 the
others of the commencement of any litigation or proceeding against it and, in
the case of the Company, against any of the Company's officers and 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
SBC Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
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 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 00000, Attention: Chief Financial
Officer.
21
11. Construction. This Agreement 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. The Company irrevocably submits to the
nonexclusive jurisdiction of any State or Federal court sitting in New York over
any suit, action or proceeding arising out of or relating to this agreement.
The Company irrevocably waives, to the fullest extent permitted by law, any
objection it may now or thereafter have to the laying of venue of any such court
and any claim that any such suit, action or proceeding brought in such a court
has been brought in an inconvenient forum. The Company agrees that a final
judgment in any such suit, action or proceeding brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts to 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 the
controlling persons, directors and officers referred to in Section 9 hereof, and
their respective successors, assigns, 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
counterparts which together shall constitute one and the same agreement among
the parties.
15. Miscellaneous. SBC Warburg Dillon Read Inc., an indirect, wholly
owned subsidiary of Swiss Bank Corporation, is not a bank and is separate from
any affiliated bank, including any U.S. branch or agency of Swiss Bank
Corporation. Because SBC Warburg Dillon Read Inc. 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 SBC Warburg Dillon Read
Inc. 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.
A lending affiliate of SBC Warburg Dillon Read Inc. may have lending
relationships with issuers of securities underwritten or privately placed by SBC
Warburg Dillon Read Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by SBC Warburg Dillon Read Inc. will disclose the existence of
any such lending relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of SBC Warburg Dillon Read Inc.
22
Without your prior written approval, the U.S. branches and agencies of
Swiss Bank Corporation will not share with SBC Warburg Dillon Read Inc. any
non-public information concerning you, and SBC Warburg Dillon Read Inc. will not
share any non-public information received from you with any of such U.S.
branches and agencies of Swiss Bank Corporation.
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,
OSIRIS THERAPEUTICS, INC.
By: --------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
Accepted and agreed to as of the
date first above written, on
behalf of themselves and the other
several Underwriters named in
Schedule A hereto:
SBC WARBURG DILLON READ INC.
XXXXXXXXX & XXXXX LLC
By: SBC WARBURG DILLON READ INC.
By:
---------------------------
Name:
Title:
23
SCHEDULE A
SCHEDULE A
Number of
Underwriter Firm Shares
-------------------------- ---------------
SBC WARBURG DILLON READ INC..................
XXXXXXXXX & XXXXX LLC........................
[NAMES OF OTHER UNDERWRITERS]................
Total...............................
