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EXHIBIT 1.1
MILLENNIUM PHARMACEUTICALS, INC.
Common Stock, par value $0.001
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UNDERWRITING AGREEMENT
October 5, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Robertson Stephens, Inc.,
Credit Suisse First Boston Corporation,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004; and
Morgan Stanley & Co. Incorporated,
1585 Broadway,
New York, New York 10036.
Ladies and Gentlemen:
Millennium Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 11,000,000 shares (the "Firm Shares") and, at
the election of the Underwriters, up to 1,650,000 additional shares (the
"Optional Shares") of Common Stock, par value $0.001 ("Stock") of the Company
(the Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof being collectively called the "Shares").
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
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(a) A registration statement on Form S-3 (File No 333-42770) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to you and,
excluding exhibits to the Initial Registration Statement, but including
all documents incorporated by reference in the prospectus included
therein, to the Representatives for each of the other Underwriters have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document, other than documents
incorporated by reference into the Prospectus (as defined below), with
respect to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed, or transmitted for filing,
with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, each
in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statement at the time such part of the Initial Registration Statement
became effective, each as amended at the time such part of the Initial
Registration Statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Shares, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of
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the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the Shares in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. or Morgan Stanley & Co.
Incorporated expressly for use therein;
(c) The Registration Statement and the Prospectus as amended or
supplemented conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. or Morgan Stanley & Co. Incorporated
expressly for use therein;
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(d) The Company and their subsidiaries (taken as a whole) have
not sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with their business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock
(excluding stock option grants in the ordinary course of business
pursuant to the Company's current stock option plans and exercise of any
outstanding stock options or warrants or conversion of outstanding
convertible securities) or increase or material decrease in the long-term
debt (including obligations under capital leases) of the Company or any
of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, holders' equity or
results of operations of the Company and its subsidiaries (taken as a
whole), otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries do not own any real
property and have good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any material real property and
buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as do not materially affect the value of the property and do
not materially interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with power and authority (corporate and other) 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, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction and each subsidiary of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
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(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock contained
in the Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares and except as set forth in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(h) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued and fully paid and non-assessable and
will conform to the description of the Stock contained in the Prospectus;
(i) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, stockholder agreement, collaboration
agreement, license agreement, research agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, other than any conflict, breach, default or violation which
would not, individually or in the aggregate, have a material adverse
effect on the business, prospects, current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries (taken as a whole) or on the ability of the Company to
consummate the transactions contemplated herein (a "Material Adverse
Effect") nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, 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 the registration under the Act of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
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(j) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws or (ii) in
default in the performance or observance of (x) any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or (y) other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, other than defaults, in the case of clause (ii) (y), which would
not, individually or in the aggregate, have a Material Adverse Effect;
(k) Each of the collaboration or strategic alliance agreements
set forth in Schedule III (the "Strategic Alliance Agreements") is in
full force and effect and constitutes a valid and binding agreement
between the parties thereto, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles, and there has not occurred any default under
any Strategic Alliance Agreement or any event that with the giving of
notice or lapse of time would constitute a default thereunder which would
individually or in the aggregate, have a Material Adverse Effect;
(l) The statements set forth in the Prospectus as amended or
supplemented under the caption "Description of Common Stock and Preferred
Stock", insofar as they purport to constitute a summary of the terms of
the Stock, and under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate and complete in all
material respects;
(m) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(n) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(o) The Company is conducting business in compliance with all
applicable statutes, rules, regulations, standards, guides and orders
administered or issued by any governmental or regulatory authority in the
jurisdictions in which it is conducting business, including without
limitation the United States Food and Drug Administration, except where
the failure to be so in compliance would not have, individually or in the
aggregate, a Material Adverse Effect;
(p) The Company is not in violation of any statute, or any
rule, regulation, decision or order of any governmental agency or body or
any court relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), does not own or operate any real
property which to its knowledge is contaminated with any substance that
is subject to any environmental laws, is not to its knowledge liable for
any off-site disposal or contamination pursuant to any environmental
laws, and is not subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim would have,
individually or in the aggregate, a Material Adverse Effect; and the
Company is not aware of any pending investigation which could reasonably
be expected to lead to such a claim;
(q) The Company owns or has valid, binding, enforceable
licenses or other rights to use any patents, patent licenses, trademarks,
trade names, service marks, service names, copyrights, and other
proprietary intellectual property rights ("Intellectual Property")
necessary to conduct the business of the Company in the manner in which
it has been and is contemplated to be conducted (as described in the
Prospectus), without any conflict with the rights of others, except for
such conflicts as are referred to in the Prospectus, or as would not have
a Material Adverse Effect; the Company or its assignor has duly and
properly filed with the United States Patent and Trademark Office the
pending patent applications referred to in the Prospectus (the "Patent
Applications"); the information contained in the Registration Statement
and Prospectus concerning the Patent Applications and patents licensed to
the Company is accurate in all material respects; and the Company has not
received any notice from any other person of infringement of or conflict
with (and knows of no such infringement of or conflict with) asserted
rights of others with respect to any Intellectual Property or any trade
secrets, proprietary information, inventions, know-how, processes and
procedures owned or used by or licensed to the Company which, if
determined adversely to the Company, would have, individually or in the
aggregate, a Material Adverse Effect; and
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(r) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, Arthur Andersen LLP, who
have certified certain financial statements of LeukoSite, Inc. and L&I
Partners, L.P., and PricewaterhouseCoopers, LLP who have certified
certain financial statements of Cytomed, Inc. are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $61.60, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,650,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated may request
upon at least forty-eight hours' prior notice to the Company shall be delivered
by or on behalf of the Company to Goldman, Sachs & Co. and Morgan Stanley & Co.
Incorporated, through the facilities of The Depository Trust Company ("DTC") for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Goldman, Sachs & Co.
and Morgan Stanley & Co. Incorporated at least forty-eight hours in advance.
The Company will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New
York City time, on October 10, 2000 or such other time and date as Goldman,
Sachs & Co., Morgan Stanley & Co. Incorporated and the Company may agree upon
in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time,
on the date specified by Goldman, Sachs & Co. and Morgan Stanley & Co.
Incorporated in the written notice given by Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Goldman, Sachs & Co. and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery", such time and date for
delivery of the Optional Shares, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 7(o) hereof, will be
delivered at the offices of Hale and Dorr LLP, 60 State Street, Boston,
MA 02109 (the "Closing Location"), and the Shares will be delivered at
the Designated Office, all at 9:30 a.m., such Time of Delivery. A
meeting will be held at the Closing Location at 3:00 p.m., New York City
time, on the New York Business Day next preceding such Time of Delivery,
at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Shares in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) not later than the Commission's close
of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may
be required by Rule 424(b) under the Act; to make no further amendment or
any supplement to the Registration Statement or Prospectus as amended and
supplemented in relation to the Shares prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Shares; and during such same period to advise you, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed the
Commission, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus relating to the
Shares, of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Shares or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
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(c) Prior to 5:00 P.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with written and electronic copies of
the Prospectus as amended or supplemented in New York City in such
quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Shares and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify you and upon your request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
(e) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
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(f) During the period beginning from the date hereof and
continuing until the date 90 days after the date of this Agreement, not
to offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder, any securities of the Company that are substantially
similar to the Shares, including but not limited to any securities that
are convertible into, or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities other than
(i) pursuant to stock option plans and employee stock purchase plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement, or
(ii) the issuance by the Company of shares of the Stock as consideration
for mergers, acquisitions, other business combinations, or strategic
alliances, occurring after the date of this Agreement, provided that each
recipient of shares pursuant to this clause (ii) agrees that all such
shares remain subject to restrictions substantially similar to those
contained in this subsection; and that the Company will use reasonable
efforts to cause each person who has entered into a Lock-up Agreement (as
defined in paragraph (g) below) to comply therewith;
(g) To cause each of the persons listed in Schedule 2 to this
Agreement to execute and deliver to you a lock-up agreement in
substantially the form of Annex II attached hereto (a "Lock-up
Agreement");
(h) To seek to enforce, and not waive its rights with respect
to, the obligations of (i) Bayer AG, a corporation of the Federal
Republic of Germany ("Bayer"), under Article V(a) of the Investment
Agreement between Bayer and the Company, dated as of September 22, 1998,
and (ii) Aventis Pharmaceuticals, Inc., a Delaware corporation
("Aventis"), under Article V of the Investment Agreement between Aventis
and the Company, dated as of June 22, 2000, during the period beginning
from the date of this Agreement and continuing until and including the
date 90 days after the date of this Agreement;
(i) To use its best efforts to list for quotation the Shares on
the National Association of Securities Dealers Automated Quotations
National Market System ("NASDAQ");
(j) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares (the "License"); PROVIDED, HOWEVER, that
the License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or transferred; and
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(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, if
any, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NASDAQ;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
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(a) The Prospectus as amended or supplemented in relation to
the Shares 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 Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time
of Delivery, with respect to the matters as you 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;
(c) Hale and Dorr, LLP, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, 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 the State of Delaware with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued and outstanding
shares of the Company's capital stock have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Shares have been duly and validly authorized
and, when issued and delivered to the Underwriters against payment
therefor as provided for herein, will be validly issued, fully
paid and non-assessable; and the Shares conform in all material
respects to the description of the Company's common stock
contained in the Prospectus.
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(iv) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing as a foreign corporation under the laws of the
Commonwealth of Massachusetts;
(v) Each United States subsidiary of the Company listed
in Exhibit 1 to such opinion has been duly organized, is validly
existing and is in good standing under the laws of its
jurisdiction of organization;
(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, which
proceedings are required by the Act or the rules and regulations
thereunder to be described in the Registration Statement or
Prospectus as supplemented and that are not so described;
(vii) This Agreement has been duly authorized, executed
and delivered by the Company;
(viii) The issue and sale of the Shares by the Company and
the compliance by the Company with all of the provisions of this
Agreement and the consummation by the Company of the transactions
herein contemplated will not result in any violation of the
provisions of the Restated Certificate of Incorporation or By-laws
of the Company or any federal or Massachusetts state statute, rule
or regulation, or any order known to such counsel of any court or
governmental agency or body specifically naming the Company or any
of its subsidiaries or any of their properties;
(ix) No consent, approval, authorization, order,
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 (a) the registration under
the Act of the Shares, and (b) such consents, approvals,
authorization, registrations or qualifications as may be required
under (x) state securities or Blue Sky laws or (y) the rules and
regulations of the National Association of Securities Dealers,
Inc. in connection with the purchase and distribution of the
Shares by the Underwriters;
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(x) The statements set forth in the Prospectus under the
caption "Description of Common Stock and Preferred Stock", insofar
as they purport to constitute a summary of the terms of the
Company's common stock, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and complete in all material respects;
(xi) The Company is not an "investment company", as such
term is defined in the Investment Company Act; and
(xii) The Registration Statement and the Prospectus as
amended or supplemented (other than the financial statements and
related notes and schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations
thereunder.
Such counsel shall also state, without passing upon or assuming
any responsibility for the accuracy or completeness of the statements
contained in any of the following documents, except for those referred to
in the opinion in subsection (ix) of this section 7(c), that nothing has
come to their attention that has led them to believe (a) that, as of the
effective date of the Registration Statement, the Registration Statement
(or as of its date, any amendment or supplement thereto made by the
Company prior to the date of such opinion) contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or (b) that, as of its date, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
the Time of Delivery contained any 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 the light of the
circumstances under which they were made, not misleading or (c) that, as
of the Time of Delivery, the Registration Statement as amended contained
any untrue statement or a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or (d) that, as of the Time of Delivery, the
Prospectus as amended or supplemented contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, such counsel need express no belief as to
the financial statements, including the notes and schedules thereto, or
any financial data set forth or referred to in the Registration Statement
or the Prospectus as amended or supplemented or the statements in the
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section of the Annual Report on Form 10-K incorporated by reference
therein captioned "Business-Government Regulation" insofar as such
statements purport to describe or summarize applicable provisions of the
Federal Food, Drug and Cosmetic Act and the Clinical Laboratory
Improvement Amendments of 1988 and the regulations promulgated
thereunder.
(d) John B. Douglas III, General Counsel for the Company, shall
have furnished to you his written opinion, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) All of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable, and (except for
directors' qualifying shares and except as otherwise set forth in
the Prospectus as amended or supplemented) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that you are justified in
relying upon such opinions and certificates);
(ii) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or supplemented, or
in such opinion, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries
is the subject, which proceedings are required by the Act or the
rules and regulations thereunder to be described in the
Registration Statement or Prospectus as supplemented and that are
not so described;
(iii) The issue and sale of the Shares being delivered at
such Time of Delivery and the compliance by the Company with all
of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel (A) to which the Company or any of its subsidiaries
is a party or (B) by which the Company or any of its subsidiaries
is bound or (C) to which any of the property or assets of the
Company or any of its subsidiaries is subject, except where any
such conflict, breach or violation would not have a Material
Adverse Effect;
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<PAGE>
(iv) Each of the Strategic Alliance Agreements is (A) to
such counsel's knowledge, in full force and effect and (B)
constitutes a valid and binding agreement between the parties
thereto, enforceable in accordance with its terms subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the statements in the Annual Report
(as defined in paragraph (f) below) under the caption "Business --
Alliances", insofar as they purport to describe the provisions of
the Strategic Alliance Agreements, are accurate and complete in
all material respects;
(v) To the best of such counsel's knowledge, except as
set forth in such opinion, neither the Company nor any of its
subsidiaries is in violation of its certificate of incorporation
or by-laws or in default in the performance or observance of any
material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound; and
(vi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related notes and schedules therein, as to which
such counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the
case of a registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading.
(e) Scott A. Brown, Chief Patent Counsel of the Company, shall
have furnished to you his written opinion, dated such Time of Delivery,
in form and substance satisfactory to you with respect to patent matters
at the Company and its subsidiaries (the "Millennium Patent Matters"), to
the effect that:
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<PAGE>
(i) Such counsel has reviewed the statements in the
Prospectus, as amended or supplemented, under the section
captioned "Risk Factors -- Risks Relating to Intellectual
Property", and in the documents incorporated by reference in the
Prospectus relating to Millennium Patent Matters and, insofar as
such statements constitute matters of United States patent law or
legal conclusions thereunder, such statements are accurate and
fairly present such matters of law and legal conclusions;
(ii) Such counsel has reviewed the section captioned
"Risk Factors -- Risks Relating to Intellectual Property"; and
statements in the Prospectus, as amended or supplemented,
including the statements in the documents incorporated by
reference in the Prospectus relating to Millennium Patent Matters,
and as of the date of the Prospectus, as amended or supplemented,
and as of such Time of Delivery, such section or statements do not
contain an untrue statement of material fact regarding United
States patent matters or omit to state a material fact necessary
to make the statements therein regarding Millennium Patent
Matters, in light of the circumstances in which they were made,
not misleading;
(iii) To the best of such counsel's knowledge, except as
set forth in such opinion, each of the patents and patent
applications referenced in the Prospectus, as amended or
supplemented, as being owned by the Company is owned by, and
assigned, of record in the United States Patent and Trademark
Office (the "USPTO"), to the Company;
(iv) To the best of such counsel's knowledge, except as
set forth in such opinion, no liens or other encumbrances have
been recorded against the patents or patent applications of the
Company;
(v) Although there can be no guarantee that any
particular patent application will issue as a patent, each of the
United States patent applications of the Company was properly
filed in, and, is being properly prosecuted before, the USPTO;
(vi) To the best of such counsel's knowledge, except as
set forth in such opinion, for each patent and patent application
of the Company, all information known, to date, to be "material to
patentability" as defined in 37 C.F.R. Section 1.56(b), has been
disclosed, or will be disclosed, if required pursuant to 37 C.F.R.
Section 1.97, to the USPTO;
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<PAGE>
(vii) Except as set forth in such opinion, each of the
Company's United States patent applications recites patentable
subject matter;
(viii) To the best of such counsel's knowledge, except as
set forth in such opinion, no third party has any rights to any of
the Company's United States patents or patent applications;
(ix) To the best of such counsel's knowledge, except as
set forth in such opinion, no interference has been threatened,
declared or provoked, or is being provoked with respect to any of
the Company's United States patents or patent applications;
(x) To the best of such counsel's knowledge, except as
set forth in such opinion, there have been no inventorship
challenges with respect to any of the Company's United States
patents or patent applications;
(xi) To the best of such counsel's knowledge, except as
set forth in such opinion, none of the Company's patents is the
subject of a reexamination or reissue proceeding in the USPTO;
(xii) To the best of such counsel's knowledge, except as
set forth in such opinion, the Company has not received any notice
challenging the Company's rights to any of its United States
patents or with respect to any of the Company's patent
applications;
(xiii) To the best of such counsel's knowledge, except as
set forth in such opinion, the Company has not received any
communication or notice, written or oral, relating to the
potential infringement of, or conflict with, any patents,
trademarks, copyrights, trade secrets, or proprietary rights of
others;
(xiv) To the best of such counsel's knowledge, except as
set forth in such opinion and the Prospectus, no issued United
States patents would be infringed by the Company's manufacture,
use, sale, offer for sale or importation of any of the Company's
present clinical products or processes; and
(xv) To the best of such counsel's knowledge, except as
set forth in such opinion no third party is infringing any of the
Company's patents other than such infringements as do not,
individually or in the aggregate, have a Material Adverse Effect.
20
<PAGE>
(f) Covington and Burling, Special Regulatory Counsel to the
Company, shall have furnished to you a written opinion, dated such Time
of Delivery, in form and substance satisfactory to you, to the effect
that such counsel has reviewed the Prospectus, as amended or
supplemented, and in particular the section captioned "Business -
Government Regulation" contained in the Company's 1999 Annual Report on
Form 10-K incorporated therein by reference (the "Annual Report"), and
that insofar as the statements contained therein purport to describe or
summarize applicable provisions of the Federal Food, Drug and Cosmetic
Act ("FDCA") and the Clinical Laboratory Improvement Amendments of 1988
("CLIA") and the regulations promulgated thereunder, are accurate in all
material respects and fairly present the information purported to be
described therein, and based upon the description of the Company's
business contained in the section captioned "Business - Government
Regulation" of the Annual Report, such statements summarize the
provisions of the FDCA and CLIA that are material to the Company's
business.
(g) On the date of this Agreement at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each
Time of Delivery, Ernst & Young, LLP, Price Waterhouse Coopers LLP, and
Arthur Andersen LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto, to the
extent applicable;
(h) The Company and its subsidiaries (taken as a whole) shall not
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the date
hereof, and (ii) since the respective dates as of which information is
given in the Prospectus as amended prior to the date hereof there shall
not have been any change in the capital stock or increase or material
decrease in the long-term debt (including obligations under capital
leases, but excluding stock option grants in the ordinary course of
business pursuant to the Company's current stock option plans and any
exercise of outstanding stock options or warrants or conversion of
outstanding convertible securities) of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries (taken as a whole), otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date hereof, the
effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the
21
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Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Shares;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange or on NASDAQ; (ii)
a suspension or material limitation in trading in the Company's
securities on NASDAQ; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York or Massachusetts state
authorities; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this
clause (iv) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Shares;
(k) The Shares to be sold at such Time of Delivery shall have
been duly listed for quotation on NASDAQ;
(l) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from the persons listed on
Schedule II, substantially to the effect set forth in Annex II hereof in
form and substance satisfactory to you;
(m) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the
New York Business Day next succeeding the date of this Agreement; and
(n) Each Lock-up Agreement shall have been duly executed and
delivered to you, and there shall have occurred no breach of any Lock-up
Agreement; and
(o) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company,
on behalf of the
22
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Company, satisfactory to you as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (h) of this
Section and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented or any other prospectus
relating to the Shares, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through Goldman, Sachs & Co. or Morgan Stanley & Co. Incorporated
expressly for use in the Prospectus as amended or supplemented relating to
such Shares.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares or any
23
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such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
Goldman, Sachs & Co. or Morgan Stanley & Co. Incorporated expressly for
use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party. No indemnifying party shall be required to
indemnify an indemnified party for any amount paid or payable by such
indemnified party in the settlement of any action, proceeding or
investigation without the written consent of the indemnifying party,
which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect
24
<PAGE>
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions
in respect thereof) 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 from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits 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 which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), 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 net proceeds from
the offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or the Underwriters on the other 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 contributions pursuant to
this subsection (d) 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 which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), 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 it 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 or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters'
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obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company shall be entitled
to a further period of thirty-six hours within which to procure another party
or other parties satisfactory to you to purchase such Shares on such terms.
In the event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Shares, or the
Company notifies you that it has so arranged for the purchase of such Shares,
you or the Company shall have the right to postpone Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to
this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above, the aggregate number
of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of
Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its PRO
RATA share (based on the number of Shares which such Underwriter agreed
to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which
26
<PAGE>
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above, the aggregate number
of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for
its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or
on behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of the Company,
and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but, if for any other reason,
any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company shall then be under no further liability to any
Underwriter except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Goldman, Sachs & Co. or Morgan Stanley &
Co. Incorporated on behalf of you as the representatives. It is understood
and agreed that Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated
27
<PAGE>
are joint book runners for the offering and any determinations or other
actions to be made under this Agreement by you or by the Representatives
shall require the concurrence of both Goldman, Sachs & Co. and Morgan Stanley
& Co. Incorporated.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives in care of Goldman,
Sachs & Co., 32 Old Slip, 21st Floor, New York, New York 10005, Attention:
Registration Department and Morgan Stanley & Co. Incorporated, 1585 Broadway,
New York, New York 10036, Attention: Equity Capital Markets Syndicate Desk;
and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: General Counsel, with a copy to David E. Redlick, Esq.,
Hale and Dorr LLP, 60 State Street, Boston MA 02109; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one
and the same instrument.
28
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and each of the Representatives plus one
for each counsel counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Millennium Pharmaceuticals, Inc.
By: /s/ John B. Douglas III
---------------------------------
Name: John B. Douglas III
Title: Senior Vice President
and General Counsel
Accepted as of the date hereof:
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Robertson Stephens, Inc.,
Credit Suisse First Boston Corporation
By: /s/ Goldman, Sachs & Co.
--------------------------------------------
(Goldman, Sachs & Co.)
By: /s/ John J. Moore, Jr.
---------------------------------------------
(Morgan Stanley & Co. Incorporated)
On behalf of each of the Underwriters
29
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER OF TO BE PURCHASED
FIRM SHARES TO BE IF MAXIMUM OPTION
UNDERWRITER PURCHASED EXERCISED
----------- ----------------- -----------------
<S> <C> <C>
Goldman, Sachs & Co. .................... 3,850,000 577,500
Morgan Stanley & Co. Incorporated ....... 3,850,000 577,500
Robertson Stephens, Inc. ................ 2,200,000 330,000
Credit Suisse First Boston Corporation .. 1,100,000 165,000
---------- ---------
Total ............................ 11,000,000 1,650,000
========== =========
</TABLE>
<PAGE>
SCHEDULE II
Mark J. Levin
John B. Douglas III
Kenneth J. Conway
Steven H. Holtzman
John Maraganore, Ph.D
Linda K. Pine
Kevin P. Starr
Robert I. Tepper, M.D.
Susan Ward
Joshua Boger, Ph.D
Eugene Cordes, Ph.D
A. Grant Heidrich, III
Raju S. Kucherlapati, Ph.D
Eric S. Lander, Ph.D
Norman C. Selby
<PAGE>
SCHEDULE III
STRATEGIC ALLIANCE AGREEMENTS
1. Collaboration and License Agreement by and between Millennium
Pharmacueticals, Inc. and Aventis Pharmaceuticals, Inc. dated as of June 22,
2000.
2. Collaboration Agreement by and between Company and Abgenix, Inc.,
dated July 6, 2000.
3. Letter of Intent Regarding License of LDP-977 between Millennium
Pharmacueticals and Taisho Pharmaceutical Co., LTD., dated January 6, 2000.
4. Distribution and Development Agreement by and between L & I
Partners, L.P. and Schering AG, dated August 24, 1999.
5. Supply Agreement (on CAMPATH-1H) by and between L & I Partners,
L.P. and Boehringer Ingelheim Pharma KG, dated June 4, 1999.
6. Collaboration and License Agreement by and between Becton,
Dickinson and Company and MPMx, dated February 21, 1999.
7. Agreement by and between Bayer AG and Millennium Pharmaceuticals,
Inc., dated September 22, 1998.
8. Development, Collaboration and License Agreement by and between
Genentech, Inc. and Leukosite, Inc., dated December 1997.
9. Agreement by and between Millennium Pharmaceuticals, Inc.,
Monsanto Company and Cereon Genomics Inc. (formerly Monsanto Agricultural
Genomics II LLC), dated October 27, 1997.
10. Sponsored Research Agreement among Whitehead Institute for
Biomedical Research, Affymetrix, Inc., Bristol-Myers Squibb Company and
Millennium Pharmaceuticals, Inc., dated April 28, 1997.
11. Consortium Member Agreement among Affymetrix, Inc., Bristol-Myers
Squibb Company and Millennium Pharmaceuticals, Inc., dated April 28, 1997.
12. License Agreement by and between L&I Partners, L.P. and Leukosite,
Inc., dated May 2, 1997.
13. CNS Research, Collaboration and License Agreement by and between
American Home Products Corporation and Millennium Pharmaceuticals, Inc., dated
August 1, 1996.
<PAGE>
ANNEX I
Pursuant to Section 7(g) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the Underwriters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Underwriters and on the basis of specified procedures including inquiries
of officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as
to form in the related in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
1
<PAGE>
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with
the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus,
for them to be in conformity with generally accepted
accounting principles;
2
<PAGE>
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated
by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived
the unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity
or other items specified by the underwriters, or any
increases in any items specified by the Underwriters, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
3
<PAGE>
(F) for the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share
amounts of consolidated net income or other items specified
by the Underwriters, or any increases in any items
specified by the Underwriters, in each case as compared
with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Underwriters, except in each case for increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Underwriters or
in documents incorporated by reference in the Prospectus specified by the
Underwriters, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
4
<PAGE>
ANNEX II
FORM OF LOCK-UP AGREEMENT
MILLENNIUM PHARMACEUTICALS INC.
LOCK-UP AGREEMENT
SEPTEMBER __, 2000
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Robertson Stephens, Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Re: MILLENNIUM PHARMACEUTICALS - LOCK-UP AGREEMENT
Ladies and Gentlemen:
The undersigned understands that you (collectively, the
"Underwriters") propose to enter into an Underwriting Agreement with
Millennium Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
providing for a public offering of Shares of Common Stock, par value $0.001
(the "Shares") pursuant to the Company's effective shelf registration (File
No. 333-42770) filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and
sell the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that,
during the period beginning from the date of the final prospectus supplement
covering the offering of the Shares and continuing to and including the date
90 days after the date of such final prospectus supplement (the "Lock-up
Period"), the undersigned will not offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise dispose of any
Common Stock, or any options or warrants to purchase any Common Stock, or any
securities convertible into, exchangeable for or that represent the right to
receive Common Stock, whether now owned or hereinafter acquired, owned
directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules
and regulations of the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is
designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the Undersigned's Shares even if such shares would be
disposed of by someone other than the undersigned. Such prohibited
1
<PAGE>
hedging or other transactions would include without limitation any short sale
or any purchase, sale or grant of any right (including without limitation any
put or call option) with respect to any of the Undersigned's Shares or with
respect to any security that includes, relates to, or derives any significant
part of its value from such shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a BONA FIDE gift or gifts, provided that the
donee or donees thereof agree to be bound in writing by the restrictions set
forth herein, (ii) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that the
trustee of the trust agrees to be bound in writing by the restrictions set
forth herein, and provided further that any such transfer shall not involve a
disposition for value, (iii) as a distribution to limited partners or
stockholders of the undersigned, provided that such distributees agree in
writing to be bound by the restrictions set forth herein, or (iv) with the
prior written consent of Goldman, Sachs & Co. and Morgan Stanley and Co.
Incorporated on behalf of the Underwriters. For purposes of this Lock-Up
Agreement, "immediate family" shall mean any relationship by blood, marriage
or adoption, not more remote than first cousin. In addition, notwithstanding
the foregoing, if the undersigned is a corporation, the corporation may
transfer the capital stock of the Company to any wholly-owned subsidiary of
such corporation; PROVIDED, HOWEVER, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such capital stock subject to
the provisions of this Agreement and there shall be no further transfer of
such capital stock except in accordance with this Agreement, and provided
further that any such transfer shall not involve a disposition for value.
The undersigned now has, and, except as contemplated by clause (i), (ii),
(iii) or (iv) above, for the duration of this Lock-Up Agreement will have,
good and marketable title to the Undersigned's Shares, free and clear of all
liens, encumbrances, and claims whatsoever. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's Shares
except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
underwriters, successors, and assigns.
2
<PAGE>
This Lock-Up Agreement shall automatically terminate on November 30,
2000 in the event that no Shares have been purchased and paid for pursuant to
the Underwriting Agreement by such date.
Very truly yours,
-----------------------------------
Exact Name of Shareholder
-----------------------------------
Authorized Signature
-----------------------------------
Title
3
