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EXHIBIT 1.1
Draft of June 8, 2000
Argonaut Technologies, Inc.
_________ Shares
Common Stock
($.0001 Par Value)
UNDERWRITING AGREEMENT
________ __, 2000
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UNDERWRITING AGREEMENT
________ __, 2000
UBS Warburg LLC
ING Barings LLC
SG Cowen Securities Corporation
As representatives of the several Underwriters
named in Schedule A hereto
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Argonaut Technologies, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of _________ shares (the "Firm
Shares") of Common Stock, $.0001 par value per share, of the Company (the
"Common Stock"). In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional ______ shares of Common Stock (the
"Additional Shares"). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "Shares". The Shares are described in
the Prospectus which is referred to below.
The Company hereby acknowledges that in connection with the
proposed offering of the Shares, it has requested UBS Warburg LLC ("UBSW") to
administer a directed share program (the "Directed Share Program") under which
up to _________ Firm Shares, or 5% of the Firm Shares, to be purchased by you
(the "Reserved Shares") shall be reserved for sale by you at the initial public
offering price to the Company's officers, directors, employees, and consultants
and others having a relationship with the Company (the "Directed Share
Participants") as part of the distribution of the Shares by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. ("NASD")
and all other applicable laws, rules and regulations. The number of Shares
available for sale to the general public will be reduced to the extent that
Directed Share Participants purchase Reserved Shares. You may offer any Reserved
Shares not purchased by Directed Share Participants to the general public on the
same basis as the other Shares being issued and sold hereunder. The Company has
supplied UBSW with the names, addresses and telephone numbers of the individuals
or other entities which the Company has designated to be participants in the
Directed Share Program. It is understood that any number of those designated to
participate in the Directed Share Program may decline to do so.
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The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-35782)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the Act
with respect to the offering contemplated by the Registration Statement, is
herein called the Registration Statement, and the prospectus, in the form filed
by the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as
may be required under the Act) or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time the
Registration Statement became effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto, in each case at a purchase price of $____ per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters the option to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of Firm Shares to be purchased by each of them, all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time and from time to time on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as
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defined below) nor earlier than the second business day(1) after the date on
which the option shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter shall be the number which bears
the same proportion to the aggregate number of Additional Shares being purchased
as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire transfer against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on _________ __, 2000 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
(a) Payment of the purchase price for the Additional Shares
shall be made at the additional time of purchase in the same manner and
at the same office as the payment for the Firm Shares. Certificates for
the Additional Shares shall be delivered to you in definitive form in
such names and in such denominations as you shall specify no later than
the second business day preceding the additional time of purchase. For
the purpose of expediting the checking of the certificates for the
Additional Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day
preceding the additional time of purchase.
(b) Deliveries of the documents described in Section 6 below
with respect to the purchase of the Shares shall be made at the offices
of Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, New
York at 9:00 a.m., New York time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case may
be.
3. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) The Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, or instituting proceedings for that purpose, and
each Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act. When the
Registration Statement became or becomes effective, the Registration
Statement and
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(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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the Prospectus complied or will comply in all material respects with
the provisions of the Act, and the Registration Statement did not or
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus did not
or will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading and the Prospectus, any Preliminary
Prospectus and any supplement thereto or prospectus wrapper prepared in
connection therewith, at their respective times of issuance and at the
time of closing, complied and will comply in all material respects with
any applicable laws or regulations of jurisdictions in which the
Prospectus and such preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the offer and sale of
the Shares, provided, however, that the Company makes no representation
or warranty with respect to any statement contained in the Registration
Statement or the Prospectus in reliance upon and in conformity with
information concerning the Underwriters and furnished in writing by or
on behalf of any Underwriter through you to the Company expressly for
use in the Registration Statement or the Prospectus. The Company has
not distributed directly or indirectly any offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or
any other materials, if any, permitted by the Act.
(b) As of the date of this Agreement, the Company has an
authorized and outstanding capital stock as set forth under the heading
entitled "Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase,
and assuming the receipt and application of the net proceeds as
described under the section of the Registration Statement and the
Prospectus entitled "Use of Proceeds," the Company shall have an
authorized and outstanding capital stock as set forth under the heading
entitled "Pro Forma As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization." All of the
outstanding shares of capital stock have been duly and validly
authorized and issued and are fully paid and non-assessable, have been
issued in compliance with all federal and state securities laws and
have not have been issued in violation of any preemptive right, resale
right, right of first refusal or similar right.
(c) The Company has been duly organized and is validly
existing as a corporation and is in good standing under the laws of the
State of Delaware, with full power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement;
(d) The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify in
any such jurisdiction would not individually or in the aggregate have a
material adverse effect on the business, prospects, properties,
condition (financial or otherwise) or results of operation of the
Company and the Subsidiaries (as defined herein), taken as a whole (a
"Material Adverse Effect"). The Company does not have any subsidiaries
(as defined in the Act) other than Argonaut Technologies KK and
Argonaut Technologies
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AG (the "Subsidiaries"). The Company owns 100% of the outstanding
capital stock of each of the Subsidiaries. Other than the Subsidiaries,
the Company does not own, directly or indirectly, any shares of stock
or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, limited liability
company, joint venture, association or other entity except as
contemplated by the Prospectus and set forth in the Registration
Statement and the Prospectus. Complete and correct copies of the
certificate of incorporation and bylaws or other organizational
documents of the Company and each of the Subsidiaries and all
amendments thereto have been delivered to you, and except as described
in the Prospectus and set forth in the exhibits to the Registration
Statement, no changes therein will be made subsequent to the date
hereof and prior to the time of purchase or, if later, the additional
time of purchase. Each of the Subsidiaries has been duly organized and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business, except where the failure to be so organized or
existing would not have a Material Adverse Effect. Each of the
Subsidiaries is duly qualified or licensed to do business as a foreign
corporation in good standing in each jurisdiction where the ownership
or leasing of the properties or the conduct of its business requires
such qualification or license, except where the failure to so qualify
or be licensed would not have a Material Adverse Effect. All of the
outstanding capital stock of each of the Subsidiaries has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company subject to no security interest, other encumbrance
or adverse claims. No options, warrant or other rights to purchase,
agreements or other obligations to issue or rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(e) Neither the Company nor either of the Subsidiaries is in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or either Subsidiary or of any
decree of any court or governmental agency or body having jurisdiction
over the Company or either Subsidiary, which violation could,
individually or in the aggregate, have a material Adverse Effect.
(f) Neither the Company nor either of the Subsidiaries is in
breach of, or in default under (and no event has occurred which with
notice, lapse of time, or both would result in any breach of, or
constitute a default under), its charter or by-laws or other
organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company or either Subsidiary is a
party or by which any of them or any of their properties is bound, the
effect of which would individually or in the aggregate have a Material
Adverse Effect. The execution, delivery and performance of this
Agreement and the issuance and sale of the Shares contemplated hereby
and by the Registration Statement will not conflict with, or result in
any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would result in any breach
of, or constitute a default under), any provisions of the charter or
by-laws or other organizational documents of the Company or either of
the Subsidiaries or under any provision of any license, permit,
franchise, indenture,
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mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company or either Subsidiary is a party or by
which any of them or their properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company of either
Subsidiary, the result of which would individually or in the aggregate
have a Material Adverse Effect.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms.
(h) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus. The certificates for the
Shares are in due and proper form and conform in all material respects
to the requirements of the Delaware General Corporation Law. The
holders of the Shares will not be subject to personal liability by
reason of being such holders.
(i) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable.
(j) No approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares contemplated hereby and
by the Registration Statement, other than registration of the Shares
under the Act, which has been or will be effected by the Company, and
any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the NASD.
(k) Except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
shares of capital stock or other equity interests; and (ii) no person
has any preemptive rights, co-sale rights, rights of first refusal or
other rights to purchase any shares of Common Stock. No person has the
right, contractual or otherwise, to cause the Company to register under
the Act any shares of capital stock or other equity interests as a
result of the filing or effectiveness of the Registration Statement or
the sale of the Shares as contemplated thereby.
(l) Ernst & Young LLP, whose report on the financial
statements of the Company are filed with the Commission as part of the
Registration Statement and Prospectus, are independent public
accountants as required by the Act.
(m) Each of the Company and each Subsidiary has all necessary
licenses, permits, franchises, authorizations, consents and approvals,
and made all necessary filings required under any federal, state, local
or foreign law, regulation or rule, and has
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obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its business; and neither the
Company nor either Subsidiary is in violation of, or in default under,
any such license, permit, franchise, authorization, consent or
approval, the effect of which could individually or in the aggregate
have a Material Adverse Effect.
(n) All legal or governmental proceedings, all statutes and
regulations and all contracts, leases or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required.
(o) There are no private or governmental actions, suits,
claims, investigations or proceedings pending, threatened or, to the
knowledge of the Company, contemplated, to which the Company or either
Subsidiary or any of their officers is subject or of which any of their
properties is subject, whether at law, in equity or before or by any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency.
(p) The audited consolidated financial statements of the
Company included in the Registration Statement and the Prospectus
present fairly the consolidated financial position and results of
operations of the Company as of the dates and for the periods
indicated; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved; the pro forma financial data
included in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of Regulation S-X of the Securities Act, and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements; and the other financial and
statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the
Company.
(q) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties,
condition (financial or otherwise) or results of operations of the
Company and the Subsidiaries, taken as a whole, (ii) any transaction
which is material to the Company and the Subsidiaries, taken as a
whole, (iii) the incurrence by the Company or either Subsidiary of any
obligation, direct or contingent, and whether or not in the ordinary
course of business, which is material to the Company and the
Subsidiaries, taken as a whole, (iv) any change in the capital stock or
other equity interest or outstanding indebtedness of the Company or
either Subsidiary or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock or other equity interest of
the Company. Neither the Company nor either Subsidiary has any material
contingent obligations which are material to the Company and the
Subsidiaries, taken as a whole, and are not disclosed in the
Registration Statement.
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(r) The Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement") of each of its
officers and directors and each of its holders of Common Stock and
securities convertible into or exchangeable or exercisable for Common
Stock (including options and warrants) not to sell, offer to sell,
contract to sell, hypothecate, pledge, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable or exercisable for
Common Stock for a period of one hundred and eighty (180) days after
the date of the Prospectus without the prior written consent of UBSW.
(s) The Company and the Subsidiaries have good and marketable
title to all property (real and personal) described in the Prospectus
as being owned by them, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus and except as would not
individually or in the aggregate have a Material Adverse Effect. All
the property being held under lease by the Company and the Subsidiaries
is held thereby under valid, subsisting and enforceable leases.
(t) Each of the Company and each Subsidiary is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amount as are customary in the business in which it
is engaged. All policies of insurance insuring the Company, the
Subsidiaries or any of their businesses, assets, employees, officers
and directors are in full force and effect, and each of the Company and
each Subsidiary is in compliance with the terms of such policies in all
material respects. There are no claims by the Company or either
Subsidiary under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause.
(u) The Company has not either sent or received any notice of
termination of any of the contracts or agreements referred to or
described in, or filed as an exhibit to, the Registration Statement,
and no such termination has been threatened by the Company or any other
party to any such contract or agreement.
(v) All statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent
required.
(w) Neither the Company nor any of its affiliates has taken,
directly or indirectly, any action designed to or which has constituted
or which might reasonably be expected to cause or result, under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act") or otherwise,
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(x) The Company owns or has obtained licenses (which such
licenses are enforceable against the Company and, to the Company's best
knowledge, the other parties thereto) for the patents, patent
applications, inventions, technology, trademarks, trademark
registrations, service marks, service mark registrations, trade names,
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copyrights, trade secrets and rights described in the Prospectus as
being owned or used by or licensed to the Company or either of the
Subsidiaries or necessary for the conduct of their respective
businesses as currently conducted (collectively, the "Intellectual
Property"). Except as set forth in the Prospectus (i) there are no
rights of third parties to any such Intellectual Property; (ii) to the
Company's knowledge there is no infringement by third parties of any
such Intellectual Property; (iii) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending or, to
the Company's knowledge, threatened action, suit, proceeding or claim
by others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (v) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others that the Company or either of the Subsidiaries infringes or
otherwise violates, or would infringe or otherwise violate upon
commercialization of its products and product candidates described in
the Prospectus, any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (vi) to the
Company's knowledge there is no patent or patent application which
contains claims that dominate or may dominate any Intellectual Property
described in the Prospectus as being owned by or licensed to the
Company or either of the Subsidiaries or that is necessary for the
conduct of their respective businesses as currently or contemplated to
be conducted or that interferes with the issued or pending claims of
any such Intellectual Property; and (vii) there is no prior art of
which the Company is aware that may render any patent held by the
Company or either of the Subsidiaries invalid or any patent application
held by the Company or either of the Subsidiaries unpatentable which
has not been disclosed to the U.S. Patent and Trademark Office. The
commercial products and product candidates of the Company and the
Subsidiaries described in the Prospectus read on the claims contained
in the patents and patent applications described in the Prospectus.
(y) Neither the Company nor either Subsidiary has sustained
since the date of the latest audited financial statements included 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 disclosed in the Prospectus or other
than any loss or interference which individually or in the aggregate
would not have a Material Adverse Effect.
(z) Neither the Company nor either Subsidiary has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, nor any federal
or state law relating to discrimination in the hiring, promotion or pay
of employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which individually or
in the aggregate might result in a Material Adverse Effect.
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(aa) The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(bb) Each of the Company and each Subsidiary has filed all
federal, state, local and foreign tax returns and tax forms required to
be filed. Such returns and forms are complete and correct in all
material respects, and all taxes shown by such returns or otherwise
assessed that are due or payable have been paid, except such taxes as
are being contested in good faith and as to which adequate reserves
have been provided. All payroll withholdings required to be made by the
Company and the Subsidiaries with respect to employees have been made.
The charges, accruals and reserves on the books of the Company and the
Subsidiaries in respect of any tax liability for any year not finally
determined are adequate to meet any assessments or reassessments for
additional taxes. There have been no tax deficiencies asserted and, to
the knowledge of the Company, no tax deficiency might be reasonably
asserted or threatened against the Company or either Subsidiary that
could individually or in the aggregate have a Material Adverse Effect.
(cc) The clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Company or either of
the Subsidiaries or in which the Company or either of the Subsidiaries
or their products or product candidates have participated that are
described in the Prospectus or the results of which are referred to in
the Prospectus were and, if still pending, are being conducted in
accordance with standard medical and scientific research procedures.
The descriptions of the results of such studies and tests are accurate
and complete in all material respects and fairly present the data
derived from such studies and tests, and the Company has no knowledge
of any other studies or tests the results of which are inconsistent
with or otherwise call into question the results described or referred
to in the Prospectus. Except to the extent disclosed in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), the Company and the Subsidiaries have operated and
currently are in compliance in all material respects with all
applicable FDA rules, regulations and policies. Except to the extent
disclosed in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), neither the Company nor either
Subsidiary has received any notices or other correspondence from the
FDA or any other governmental agency requiring the termination,
suspension or modification of any clinical or pre-clinical studies or
tests that are described in the Prospectus or the results of which are
referred to in the Prospectus.
(dd) Immediately after the issuance and sale of the Shares to
the Underwriters, no shares of preferred stock of the Company shall be
issued and outstanding, and no holder of any shares of capital stock,
securities convertible into or exchangeable or exercisable for capital
stock or options, warrants or other rights to purchase capital stock
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or any other securities of the Company shall have any existing or
future right to acquire any shares of preferred stock of the Company.
(ee) The Company is not, and after the offering and sale of
the Shares, will not be, an "investment company" or a "promoter,"
"principal underwriter" for or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
In addition, any certificate signed by any officer of the
Company, delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. Certain Covenants. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale
of the Shares); and to promptly advise you of the receipt of any
notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus beyond the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare promptly upon request and at its cost such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(i) to advise you promptly and (if requested by you)
to confirm such advice in writing, (i) when the Registration Statement
has become effective and when any post-effective amendment thereto
becomes effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(ii) to advise you promptly, and to confirm such
advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or Prospectus or for
additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order suspending
the effectiveness of
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<PAGE> 13
the Registration Statement and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, to
use its best efforts to obtain the lifting or removal of such order as
soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or Prospectus and to file no such
amendment or supplement to which you shall object in writing;
(iii) subject to Section 4(o) hereof, to file
promptly all reports and any definitive proxy or information statement
required to be filed by the Company with the Commission in order to
comply with the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the shares, and to promptly
notify you of such filing;
(iv) if necessary or appropriate, to file in a timely
fashion a registration statement pursuant to Rule 462(b) under the Act;
(v) to furnish to you and, upon request, to each of
the other Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar form as may be designated by the Commission,
(iii) copies of documents or reports filed with any national securities
exchange on which any class of securities of the Company is listed, and
(iv) such other information as you may reasonably request regarding the
Company or the Subsidiary as soon as such communications, documents or
information becomes available;
(vi) to advise the Underwriters promptly of the
occurrence of any event known to the Company within the time during
which a Prospectus relating to the Shares is required to be delivered
under the Act which would require the making of any change in the
Prospectus then being used so that the Prospectus would not include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during
such time, to prepare, file (subject to Section 4(d) hereof) and
furnish promptly to the underwriters, at the Company's expense, such
amendments or supplements to such Prospectus as may be necessary to
reflect any such change and to furnish you a copy of such proposed
amendment or supplement before filing any such amendment or supplement
with the Commission;
(vii) to make generally available to its security
holders, and to deliver to you, as soon as practicable an earnings
statement of the Company (which will satisfy the provisions of Section
11(a) of the Act) covering a period of twelve months beginning after
the effective date of the Registration Statement (as defined in Rule
158(c) of the Act) and ending not later than fifteen (15) months
thereafter;
(viii) to furnish to its stockholders as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and of cash flow of the Company for such fiscal year,
accompanied
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<PAGE> 14
by a copy of the certificate or report thereon of nationally recognized
independent certified public accountants);
(ix) to furnish to you such number of conformed
copies of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits
thereto) as you shall reasonably request;
(x) to furnish to you as early as practicable prior
to the time of purchase and the additional time of purchase, as the
case may be, but not later than two (2) business days prior thereto, a
copy of the latest available quarterly (if available) or monthly
unaudited interim consolidated financial statements, if any, of the
Company and the Subsidiary, which have been read by the Company's
independent certified public accountants, as stated in their letter to
be furnished pursuant to Section 6(e) hereof;
(xi) to apply the net proceeds from the sale of the
Shares in the manner set forth under the caption "Use of Proceeds" in
the Prospectus;
(xii) to pay all costs, expenses, fees and taxes in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the registration, issue, sale and
delivery of the Shares, (iii) the producing, word processing and/or
printing of this Agreement, any agreement Among Underwriters, any
dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale
under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the reasonable legal
fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the National Association
of Securities Dealers Automated Quotation National Market System
("NASDAQ") and any registration thereof under the Exchange Act, (vi)
the review of the public offering of the Shares by the NASD, including
the associated filing fees and the reasonable fees and disbursements of
counsel for the Underwriters, and (vii) the performance of the
Company's other obligations hereunder;
(xiii) to furnish to you, before filing with the
Commission subsequent to the effective date of the Registration
Statement and during the period referred to in paragraph (h) above, a
copy of any document proposed to be filed pursuant to Section 13, 14 or
15(d) of the Exchange Act;
(xiv) not to sell, offer to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
options, warrants or other rights to purchase Common Stock or any other
shares of the
13
<PAGE> 15
Company that are substantially similar to Common Stock or file a
registration statement under the Act relating to the offer and sale of
any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or options, warrants or
other rights to purchase Common Stock or any other shares of the
Company that are substantially similar to Common Stock for a period of
one hundred and eighty (180) days after the date hereof (the "Lock-up
Period"), without the prior written consent of UBSW, except for (i) the
registration of the Shares and the sales to the Underwriters pursuant
to this Agreement, (ii) issuances of Common Stock upon the exercise of
outstanding options or warrants as disclosed in the Registration
Statement and the Prospectus to persons who have entered into Lock-Up
Agreements with the Underwriters and (iii) the issuance of employee
stock options not exercisable during the Lock-up Period pursuant to
stock option plans described in the Registration Statement and the
Prospectus; and
(xv) to use its best efforts to cause the Common
Stock to be listed for quotation on the NASDAQ.
5. Reimbursement of Underwriters' Expenses. The Company agrees
that if the Shares are not delivered for any reason other than the termination
of this Agreement pursuant to subsections (ii), (iii) or (iv) of the second
paragraph of Section 7 hereof or the last paragraph of Section 8 hereof or the
default by one or more of the Underwriters in its or their respective
obligations hereunder, it shall, in addition to paying the amounts described in
Section 4(n) hereof, reimburse the Underwriters for all of the out-of-pocket
accountable expenses actually incurred by the Underwriters, including the
reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company on the date hereof and at the time
of purchase as if made at the time of purchase (and the several obligations of
the Underwriters at the additional time of purchase are subject to the accuracy
of the representations and warranties of the Company on the date hereof and at
the time of purchase (unless previously waived) and at the additional time of
purchase, as the case may be, as if made at such time), the timely performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of Wilson Sonsini Goodrich & Rosati, counsel for the Company, addressed
to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each
of the other Underwriters and in form reasonably satisfactory to Dewey
Ballantine LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is
validly existing as a corporation and is in good standing under the
laws of the State of Delaware, with full power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus, to execute and
deliver this Agreement and to issue, sell and deliver the Shares as
herein contemplated;
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<PAGE> 16
(ii) each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation with the
requisite corporate power and authority to own, lease and operate its
respective properties and to conduct its respective business;
(iii) the Company and the Subsidiaries are duly
qualified to do business as a foreign corporation and are in good
standing in each jurisdiction in which the ownership or leasing of
their properties or the conduct of their business requires such
qualification, except where the failure to so qualify would not
individually or in the aggregate have a Material Adverse Effect;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Shares have been duly authorized and, when
issued and delivered to and paid for by the Underwriters, will be
validly issued, fully paid and non-assessable;
(vi) the Company has authorized and outstanding
shares of capital stock as set forth in the Registration Statement and
the Prospectus; the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid,
nonassessable and free of any preemptive rights, resale rights, rights
of first refusal and similar rights under the Delaware General
Corporation Law or under any contract, agreement or instrument
described in or filed as an exhibit to the Registration Statement or
otherwise known to such counsel; the Shares when issued will be free of
any preemptive rights, resale rights, rights of first refusal and
similar rights under the Delaware General Corporation Law or under any
contract, agreement or instrument described in or filed as an exhibit
to the Registration Statement or otherwise known to such counsel; the
certificates for the Shares are in due and proper form and conform in
all material respects to the requirements of the Delaware General
Corporation Law, and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(vii) all of the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, are owned by the Company and
are not subject to any perfected security interest or, to such
counsel's knowledge, any other encumbrance or adverse claim; to such
counsel's knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in
either Subsidiary are outstanding;
(viii) the capital stock of the Company, including
the Shares, conforms to the description thereof contained in the
Registration Statement and Prospectus;
(ix) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained
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<PAGE> 17
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act;
(x) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act and any required filing of the Prospectus, and any supplement
thereto pursuant to Rule 424 under the Act has been made in the manner
and within the time period required by such Rule 424;
(xi) no approval, authorization, consent or order of
or filing with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby and by the Registration Statement,
other than those that have been obtained under the Act and other than
any necessary qualification under the state securities or blue sky laws
of the various jurisdictions in which the Shares are being offered by
the Underwriters, as to which such qualification such counsel need
express no opinion;
(xii) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated hereby and
by the Registration Statement do not and will not conflict with, or
result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time, or both, would result in
any breach of, or constitute a default under) (A) any provisions of the
charter or by-laws or other organizational documents of the Company or
either of the Subsidiaries, (B) any provision of any license, permit,
franchise, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or either of the
Subsidiaries is a party or by which their respective properties may be
bound or affected that is described in or filed as an exhibit to the
Registration Statement or is otherwise known by such counsel or (C) any
federal, state, local or foreign law, regulation or rule, or any
decree, judgment or order applicable to the Company or either of the
Subsidiaries;
(xiii) to such counsel's knowledge, neither the
Company nor either of the Subsidiaries is in violation of its charter
or by-laws, nor is any of them in breach of or in default under (nor
has any event occurred which with notice, lapse of time, or both would
result in any breach of, or constitute a default under), any license,
permit, franchise, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company or
either of the Subsidiaries is or was a party or by which any of them or
their respective properties may be bound or affected or in violation of
any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or either of the
Subsidiaries, the effect of which would individually or in the
aggregate have a Material Adverse Effect;
(xiv) to such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are required to be filed as exhibits
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<PAGE> 18
to the Registration Statement or to be described in the Prospectus
which have not been so filed or described;
(xv) to such counsel's knowledge, there are no
private or governmental actions, suits, claims, investigations or
proceedings pending, threatened or contemplated to which the Company or
either of the Subsidiaries or any of their officers is subject or of
which any of their properties is subject, whether at law, in equity or
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency;
(xvi) the Company is not, and after the offering and
sale of the Shares, will not be, an "investment company," or a
"promoter," "principal underwriter" for or an entity controlled by an
"investment company," as such terms are defined in the Investment
Company Act;
(xvii) the statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of law or
legal conclusions, are accurate in all material respects and present
fairly the information required to be shown;
(xviii) immediately after the issuance and sale of
the Shares to the Underwriters, no holder of any shares of capital
stock or other securities (including options and warrants) of the
Company described in the Registration Statement shall have any right to
acquire any shares of preferred stock of the Company; and
(xix) no person has the right, pursuant to the terms
of any contract, agreement or other instrument described in or filed as
an exhibit to the Registrations Statement, to cause the Company to
register under the Act any shares of capital stock or other equity
interests as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
hereby; and to the knowledge of such counsel, except as described in
the Registration Statement and Prospectus, no person is entitled to
registration rights with respect to shares of capital stock or other
securities of the Company.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Prospectus (except as and to the extent stated in subparagraphs (viii), (ix) and
(xvii) above), on the basis of the foregoing nothing has come to the attention
of such counsel that causes them to believe that the Registration Statement or
any amendment thereto at the time such Registration Statement or amendment
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any supplement
thereto at the date of such Prospectus or such supplement, and at all times up
to and including the time of purchase or additional time of purchase, as the
case
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<PAGE> 19
may be, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion with
respect to the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus).
(b) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of
Townsend and Townsend and Crew LLP, special counsel to the Company with
respect to patents and proprietary rights, dated the time of purchase
or the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters and in form reasonably
satisfactory to Dewey Ballantine LLP, counsel for the Underwriters,
stating that:
(i) To such counsel's knowledge, except as described
in the Prospectus, (A) the Company (either directly or through the
Subsidiaries) has valid license rights or clear title to the
Intellectual Property referenced in the Prospectus, and there are no
rights of third parties to any such Intellectual Property; (B) there is
no infringement or other violation by third parties of any of the
Intellectual Property of the Company referenced in the Prospectus; (C)
there is no infringement or other violation by the Company or either of
the Subsidiaries of any Intellectual Property of others; (D) there is
no pending or threatened action, suit proceeding or claim by
governmental authorities or others that the Company or either of the
Subsidiaries infringes or otherwise violates any Intellectual Property
of others, and such counsel is unaware of any facts which would form a
reasonable basis for any such claim; and (E) there is no pending or
threatened action, suit, proceeding or claim by governmental
authorities or others challenging the rights of the Company or either
of the Subsidiaries in or to, or challenging the scope of, any
Intellectual Property of the Company referenced in the Prospectus, and
such counsel is unaware of any facts which would form a reasonable
basis for any such claim;
(ii) to such counsel's knowledge, the patent
applications of the Company and the Subsidiaries presently on file
disclose patentable subject matter, and such counsel is not aware of
any inventorship challenges, any interference which has been declared
or provoked, or any other material fact with respect to the patent
applications of the Company presently on file that (A) would preclude
the issuance of patents with respect to such applications, or (B) would
lead such counsel to conclude that such patents, when issued, would not
be valid and enforceable in accordance with applicable regulations; and
(iii) the statements in the Registration Statement
and the Prospectus referencing Intellectual Property matters, insofar
as such statements constitute summaries of legal matters, contracts,
agreements, documents or proceedings referred to therein, or refer to
statements of law or legal conclusions, are in all material respects
accurate and complete statements or summaries of the matters therein
set forth. Nothing has come to such counsel's attention that causes
them to believe that such above described portions of the Registration
Statement, at the time such Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading,
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<PAGE> 20
or that such above described portions of the Prospectus and at the date
of the Prospectus and at all times leading up to and including the time
of purchase and the additional time of purchase, as the case may be,
contained an untrue statement of material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of Dewey Ballantine LLP, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be,
with respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Prospectus (together with any supplement
thereto) and such other related matters as the Underwriters may
require.
(d) You shall have received from Ernst & Young LLP, letters
dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Dewey Ballantine LLP,
counsel for the Underwriters.
(e) No amendment or supplement to the Registration Statement
or Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(f) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before
5:30 P.M., New York City time, on the date of this Agreement, unless a
later time (but not later than 5:30 P.M., New York City time, on the
second full business day after the date of this Agreement) shall be
agreed to by the Company and you in writing or by telephone, confirmed
in writing; provided, however, that the Company and you and any group
of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least fifty percent (50%) of the Firm Shares may
from time to time agree on a later date.
(g) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (i) no material and unfavorable
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<PAGE> 21
change, or any development involving a prospective material and adverse
change, financial or otherwise (other than as specifically identified
in the Registration Statement and Prospectus), in the business,
properties, condition or results of operations of the Company and the
Subsidiaries, taken as a whole, shall occur or become known and (ii) no
transaction which is material and unfavorable to the Company shall have
been entered into by the Company or either of the Subsidiaries.
(i) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate of
its President and its [Chief Financial Officer] to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of each such date, that the Company
has performed such of their obligations under this Agreement as are to
be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be, and the conditions set
forth in paragraphs (f), (g) and (h) of this Section 6 have been met.
(j) You shall have received signed Lock-Up Agreements, dated
the date of this Agreement, from each of the officers and directors of
the Company, each of the holders of Common Stock and securities
convertible into or exchangeable or exercisable for Common Stock,
stating that such persons will not sell, offer to sell, contract to
sell, hypothecate, pledge, grant any option to sell or otherwise
dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or options, warrants or other rights to purchase Common Stock or
any other securities of the Company that are substantially similar to
Common Stock for a period of one hundred and eighty (180) days after
the date of the Prospectus without the prior written consent of UBSW.
(k) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(l) The Shares shall have been approved for listing for
quotation on NASDAQ, subject only to notice of issuance at or prior to
the time of purchase or the additional time of purchase, as the case
may be.
7. Effective Date of Agreement; Termination. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
(a) The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of you or
any group of Underwriters (which may include you) which has agreed to
purchase in the aggregate at least fifty percent (50%) of the Firm
Shares, (i) if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration
Statement and Prospectus, there has been any material adverse and
unfavorable change, or any development involving a
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<PAGE> 22
prospective material adverse change, financial or otherwise (other than
as specifically identified in the Registration Statement and
Prospectus), in the business, prospects, properties, condition or
results of operations of the Company and the Subsidiary taken as a
whole, which would, in your judgment or in the judgment of such group
of Underwriters, make it impracticable to market the Shares, or, (ii)
if, at any time prior to the time of purchase or, with respect to the
purchase of any Additional Shares, the additional time of purchase, as
the case may be, trading in securities on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market shall have
been suspended or limitations or minimum prices shall have been
established on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market, or (iii) if a banking moratorium shall
have been declared either by the United States or New York State
authorities, or (iv) if the United States shall have declared war in
accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other
national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States as, in your
judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Shares.
(b) If you or any group of Underwriters elects to terminate
this Agreement as provided in this Section 7, the Company and each
other Underwriter shall be notified promptly by letter or telegram.
(c) If the sale to the Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters
for any reason permitted under this Agreement or if such sale is not
carried out because the Company shall be unable to comply with any of
the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall
be under no obligation or liability to the Company under this Agreement
(except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
ten percent (10%) of the total number of Firm Shares, the non-defaulting
Underwriters shall take up and pay for (in addition to the aggregate number of
Firm Shares they are obligated to purchase pursuant to Section 1 hereof) the
number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non-defaulting Underwriter or Underwriters in such amount or amounts
as you may designate with the consent of each Underwriter so designated or, in
the event no such designation is made, such Shares shall be taken up and paid
for by all non-defaulting Underwriters pro rata in proportion to the aggregate
number of Firm Shares set opposite the names of such non-defaulting Underwriters
in Schedule A.
21
<PAGE> 23
(a) Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting
Underwriters that it will not sell any Firm Shares hereunder unless all
of the Firm Shares are purchased by the Underwriters (or by substituted
Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
(b) If a new Underwriter or Underwriters are substituted by
the Underwriters or by the Company for a defaulting Underwriter or
Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period
not exceeding five (5) business days in order that any necessary
changes in the Registration Statement and Prospectus and other
documents may be effected.
(c) The term Underwriter as used in this Agreement shall refer
to and include any Underwriter substituted under this Section 8 with
like effect as if such substituted Underwriter had originally been
named in Schedule A.
(d) If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds ten percent
(10%) of the total number of Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor
the Company shall make arrangements within the five (5) business day
period stated above for the purchase of all the Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action
taken hereunder, shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any
such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus
(the term Prospectus for the purpose of this Section 9 being deemed to
include any Preliminary Prospectus, the Prospectus and the Prospectus
as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability
or claim arises
22
<PAGE> 24
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or arises
out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated
in such Registration Statement or such Prospectus or necessary to make
such information not misleading or (ii) any untrue statement or alleged
untrue statement made by the Company in Section 3 of this Agreement or
the failure by the Company to perform when and as required any
agreement or covenant contained herein or (iii) any untrue statement or
alleged untrue statement of any material fact contained in any audio or
visual materials provided by the Company or based upon written
information furnished by or on behalf of the Company including, without
limitation, slides, videos, films, tape recordings, used in connection
with the marketing of the Shares, or (iv) the Directed Share Program,
provided that, the Company shall not be responsible for any loss,
damage, expense, liability, or claim that is finally judicially
determined to have resulted from the bad faith or gross negligence of
the Underwriters in conducting the Directed Share Program.
(b) If any action, suit or proceeding (together, a
"Proceeding") is brought against an Underwriter or any such person in
respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such Underwriter or such person shall
promptly notify the Company in writing of the institution of such
Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify the Company shall not relieve
the Company from any liability which the Company may have to any
Underwriter or any such person or otherwise. Such Underwriter or such
person shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or of such person unless the employment of
such counsel shall have been authorized in writing by the Company in
connection with the defense of such Proceeding or the Company shall not
have, within a reasonable period of time in light of the circumstances,
employed counsel to defend such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in
conflict with those available to the Company (in which case the Company
shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the Company and paid as
incurred (it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition
to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). The Company shall not be
liable for any settlement of any Proceeding effected without the
written consent of the Company but if settled with the written consent
of the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees
23
<PAGE> 25
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable
for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than sixty (60)
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least thirty (30) days' prior notice of its
intention to settle. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and
does not include an admission of fault, culpability or a failure to
act, by or on behalf of such indemnified party.
(c) In connection with the offer and sale of the Reserved
Shares, the Company agrees to pay UBSW, at its request, the full
purchase price of all Reserved Shares which were subject to a properly
confirmed agreement to purchase and for which any Directed Share
Participant failed to pay therefor and accept delivery thereof.
(d) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all
of the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished
in writing by or on behalf of such Underwriter through you to the
Company expressly for use with reference to such Underwriter in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a
Prospectus.
(e) If any Proceeding is brought against the Company or any
such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company or such
person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
fees and expenses; provided, however, that the omission to so notify
such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or
otherwise. The Company or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless
the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have, within a reasonable period of time in
light
24
<PAGE> 26
of the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them
which are different from or additional to or in conflict with those
available to such Underwriter (in which case such Underwriter shall not
have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne by such
Underwriter and paid as incurred (it being understood, however, that
such Underwriter shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any
such Proceeding effected without the written consent of such
Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the
Company and any such person from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then
the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than sixty (60) days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at
least thirty (30) days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such Proceeding.
(f) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) or (c)
of this Section 9 in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received
25
<PAGE> 27
by the Company and the total underwriting discounts and commissions
received by the Underwriters, bear to the aggregate public offering
price of the Shares. The relative fault of the Company on the one hand
and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(g) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of
this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and
not joint.
(h) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company its
directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it
and, in the case of the Company, against any of the Company's officers
or directors in connection with the issuance and sale of the Shares, or
in connection with the Registration Statement or Prospectus.
10. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Warburg LLC, 299 Park Avenue, New York, N.Y. 10171-0026, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 887
Industrial
26
<PAGE> 28
Road, Suite G, San Carlos, California 94070, Attention: David P. Binkley, Ph.D.,
President and Chief Executive Officer.
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against UBSW or any indemnified
party. Each of UBSW and the Company (on their respective behalfs and, to the
extent permitted by applicable law, on behalf of their respective stockholders
and affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters and the Company and
to the extent provided in Section 9 hereof the controlling persons, directors
and officers referred to in such section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
15. Successors and Assigns. This Agreement shall be binding
upon the Underwriters, the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's, and any of the
Underwriters' respective businesses and/or assets.
16. Miscellaneous. UBSW, an indirect, wholly owned subsidiary
of UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBSW is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBSW are not deposits,
are
27
<PAGE> 29
not insured by the Federal Deposit Insurance Corporation, are not guaranteed by
a branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.
A lending affiliate of UBSW may have lending relationships
with issuers of securities underwritten or privately placed by UBSW. To the
extent required under the securities laws, prospectuses and other disclosure
documents for securities underwritten or privately placed by UBSW will disclose
the existence of any such lending relationships and whether the proceeds of the
issue will be used to repay debts owed to affiliates of UBSW.
28
<PAGE> 30
If the foregoing correctly sets forth the understanding among
the Company and the Underwriters, please so indicate in the space provided below
for the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
ARGONAUT TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
Title:
Accepted and agreed to as
of the date first above
written, on behalf of
themselves and the other
several Underwriters named
in Schedule A
UBS WARBURG LLC
ING BARINGS LLC
SG COWEN SECURITIES CORPORATION
By: UBS WARBURG LLC
By:
----------------------------------
Name:
Title: Managing Director
By:
-----------------------------------
Name:
Title: Director
29
<PAGE> 31
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Firm Shares
----------- -----------
<S> <C>
UBS Warburg LLC............................................................
ING Barings LLC............................................................
SG Cowen Securities Corporation............................................
------------
Total..........................
============
</TABLE>
30
