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EXHIBIT 1.1
6,000,000 AMERICAN DEPOSITARY SHARES REPRESENTING
12,000,000 ORDINARY SHARES
GEMINI GENOMICS PLC
UNDERWRITING AGREEMENT
______ __, 2000
SG COWEN SECURITIES CORPORATION
CHASE SECURITIES INC.
As Representatives of the several Underwriters
c/o SG Cowen Securities Corporation
Financial Square
New York, New York 10005
Dear Sirs:
1. INTRODUCTORY. Gemini Genomics plc, a public limited company
organized under the laws of England and Wales (the "Company"), proposes to sell,
pursuant to the terms of this Agreement, to the several underwriters named in
Schedule A hereto (the "Underwriters," or, each, an "Underwriter"), an aggregate
of 6,000,000 American depositary shares ("ADSs") representing 12,000,000 of the
Company's Ordinary Shares, 5p nominal value (the "Ordinary Shares"). The
aggregate of 6,000,000 ADSs so proposed to be sold are hereinafter referred to
as the "Firm ADSs" and the Ordinary Shares represented by the Firm ADSs are
hereinafter referred to as the "Firm Shares". The Company also proposes to sell
to the Underwriters, upon the terms and conditions set forth in Section 3
hereof, up to an additional 900,000 ADSs (the "Optional ADSs") representing
1,800,000 Ordinary Shares (the "Optional Shares"). The Firm ADSs and the
Optional ADSs are hereinafter collectively referred to as the "ADSs", the Firm
Shares and the Optional Shares are hereinafter collectively referred to as the
"Shares" and references to ADSs include the ADRs (as defined below) evidencing
such ADSs, in each case, unless the context otherwise requires. SG Cowen
Securities Corporation ("SG Cowen") and Chase Securities Inc. are acting as
representatives of the several Underwriters and in such capacity are hereinafter
referred to as the "Representatives."
The ADSs, evidenced by American Depositary Receipts ("ADRs"),
will be issued in accordance with the Deposit Agreement (the "Deposit
Agreement"), among the Company, The Bank of New York, as depositary (the
"Depositary"), and the holders and beneficial owners from time to time of ADRs
issued thereunder. Each ADS will represent __ Ordinary Shares deposited pursuant
to the Deposit Agreement and delivered to The Bank of New York, London office,
as custodian for the Depositary.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
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(a) A registration statement on Form F-1 (File No. 333-12170)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Securities Act") and the rules and regulations (the
"Rules and Regulations") of the Commission thereunder, which became
effective upon filing, and the ADS Registration Statement (as defined
below), no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the Rules and
Regulations, is hereinafter called a "Preliminary Prospectus"); the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto
and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act and deemed by virtue of Rule 430A under the Securities
Act to be part of the Initial Registration Statement at the time it
was declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statements"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Securities Act, is
hereinafter called the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Securities
Act. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission.
(b) A registration statement on Form F-6 (File No. 333-12162)
with respect to the ADSs evidenced by the ADRs has (i) been prepared
by the Company and the Depositary in conformity with the requirements
of the Securities Act and the Rules and Regulations, (ii) been filed
with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such ADS Registration
Statement, including all amendments thereto, have been delivered by
the Company to you for each of the Underwriters. As used in this
Agreement, "ADS Registration Statement" means such registration
statement, including all exhibits thereto, as amended at the time such
registration statement became effective under the Securities Act.
(c) Each of the Registration Statements and the ADS Registration
Statement conforms (and the Rule 462(b) Registration Statement, if
any, the Prospectus and any amendments or supplements to any of the
Registration Statements, the ADS Registration Statement or the
Prospectus, when they become effective or are filed with the
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Commission, as the case may be, will conform) in all material respects
to the requirements of the Securities Act and the Rules and Regulations
and do not and will not, as of the applicable effective date (as to the
Registration Statements and the ADS Registration Statement and any
amendments thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein (with respect to the Prospectus and any amendment or supplement
thereto, in light of the circumstances under which they were made) not
misleading; PROVIDED, HOWEVER, that the foregoing representations and
warranties shall not apply to the Underwriters' Information (as defined
in Section 16).
(d) The Company and each of its subsidiaries (as defined in
Section 14) have been duly incorporated and are validly existing under
the laws of their respective jurisdictions of organization or
incorporation, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not have, singularly
or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"). The Company owns or controls, directly or
indirectly, only the following corporations, associations or other
entities: Gemini Genomics UK Limited, Gemini Genomics AB, Gemini
Genomics Inc., Gemini International Holdings Limited, Gemini Genedata
Limited, Genos UK Limited and Newfound Genomics Inc. Except for Gemini
Genomics UK Limited and Gemini Genomics AB, none of the subsidiaries
of the Company is a "significant subsidiary", as such term is defined
in Rule 405 of the Rules and Regulations.
(e) The Company has full power and authority to enter into this
Agreement, and this Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Company has full power and authority to enter into the
Deposit Agreement and the Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or
affecting creditors' rights and to general equity principles; upon the
due and valid issuance by the Depositary of ADRs evidencing ADSs
against the deposit of Shares in respect thereof and against payment
therefor in accordance with the provisions of this Agreement, such
ADRs will be duly and validly issued and the persons in whose names
the ADRs are registered will be entitled to the rights specified in
the ADRs and in the Deposit Agreement; and the ADSs, ADRs and the
Deposit Agreement conform in all material respects to the descriptions
thereof contained in the Prospectus.
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(g) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters in connection with the
sale of the ADSs representing the Shares by the Company to the
Underwriters in accordance with this Agreement, (ii) the deposit with
the Depositary or its nominee of Shares against the issuance of ADRs
evidencing ADSs, (iii) the delivery of the ADSs to or for the
respective accounts of the Underwriters in the manner contemplated in
this Agreement or (iv) the sale and delivery by the Underwriters of
the ADSs to the initial purchasers thereof.
(h) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and deposited pursuant to the Deposit Agreement and when ADSs
have been issued and delivered in respect thereof against payment
therefor as provided herein, will be duly and validly issued, fully
paid and non-assessable and the Underwriters or other persons in whose
names ADSs are registered (including the Depositary or its nominee)
will acquire good and valid title to such ADSs, free and clear of all
liens, encumbrances, equities, preemptive rights and other claims;
except as have been waived by the shareholders entitled thereto, there
are no preemptive or similar rights to subscribe for or to purchase,
and no restrictions upon the voting or transfer of any of the Shares
or ADSs pursuant to the Company's memorandum and articles of
association or by-laws or equivalent constitutive documents or any
agreement to which the Company is a party or by which it may be bound
or to which any of its property may be subject; the Shares and the
ADSs conform to the description thereof contained in the Prospectus;
and the certificates for the Shares comply in all material respects
with applicable English law.
(i) The Company has, and upon the completion of the offering and
sale of the ADSs will have, an authorized and issued share capital as
set forth in the Prospectus, and all of the issued share capital of
the Company has been duly and validly authorized and issued, is fully
paid and non-assessable, was not issued, and upon completion of the
offering and sale of the ADSs will not be issued in violation of any
preemptive rights, and conforms to the description thereof contained
in the Prospectus; and except as otherwise described in or
contemplated by the Prospectus, there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options
to purchase from the Company or any of its subsidiaries, or
obligations of the Company or any of its subsidiaries to issue, any
class of share capital of the Company or any of its subsidiaries.
(j) All the outstanding share capital of each subsidiary of the
Company has been duly authorized and validly issued, is fully paid and
nonassessable and, except to the extent set forth in the Prospectus,
is owned by the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party.
(k) Except as otherwise described in or contemplated by the
Prospectus, the Company has not sold or issued any Ordinary Shares,
ADSs or other share capital of the Company or securities convertible
or exercisable or exchangeable for any such securities, during the
six-month period preceding the date of the Prospectus, including
without
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limitation any sales pursuant to Rule 144A under, or Regulations D or S
of, the Securities Act.
(l) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
described in or contemplated by the Prospectus, the Company has not
(i) issued or granted any securities, including, without limitation,
any options or warrants, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business, or (iv)
declared or paid any dividend on its issued share capital.
(m) The execution, delivery and performance of this Agreement
and the Deposit Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches, violations or defaults as would not, singularly
or in the aggregate, have a Material Adverse Effect, nor will such
actions result in any violation of the provisions of the memorandum
and articles of association or by-laws or equivalent constitutive
documents of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their properties or assets, except for such violations as
would not, singularly or in the aggregate, have a Material Adverse
Effect.
(n) Except for the registration of the Shares and the ADSs under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
applicable state securities laws in connection with the purchase and
distribution of the Shares and the ADSs by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
and the Deposit Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby.
(o) Ernst & Young, who have expressed their opinions on the
audited financial statements included in the Registration Statements
and the Prospectus are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(p) The financial statements, together with the related notes,
included in the Prospectus and in each Registration Statement fairly
present the financial position and the results of operations and
changes in financial position of the Company and Eurona
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Medical AB at the respective dates or for the respective periods
therein specified. With respect to the Company, such statements and
related notes have been prepared in accordance with generally accepted
accounting principles in the United States ("U.S. GAAP"), applied on a
consistent basis except as may be set forth in the Prospectus. With
respect to Eurona Medical AB, such statements and related notes have
been prepared in accordance with generally accepted accounting
principles in Sweden ("Swedish GAAP"), applied on a consistent basis
except as may be set forth in the Prospectus. For Eurona Medical AB,
with respect to the fiscal years ended December 31, 1997 and 1998, and
the nine months ended September 30, 1998 and 1999, the financial
statements contain a reconciliation of statement of operations
presented under Swedish GAAP with the same information as would be
presented under U.S. GAAP. The summary consolidated financial
information, unaudited condensed pro forma consolidated financial
information and selected consolidated financial information included in
the Prospectus and each Registration Statement have been accurately
prepared from the consolidated financial statements and the unaudited
pro forma financial statements, as applicable, of the Company. The
unaudited pro forma financial information and the related notes thereto
contained in the Prospectus and each Registration Statement have been
prepared on a basis consistent with the historical financial statements
contained in the Prospectus and each Registration Statement (except for
the pro forma adjustments specified therein) and include all material
adjustments to the historical financial information required by Rule
11-02 of Regulation S-X under the Securities Act and the Exchange Act
to reflect the transactions described in the Prospectus and each
Registration Statement; and the adjustments reflected in the pro forma
financial information reflect assumptions required by Regulation S-X or
which the Company otherwise believes to be reasonable.
(q) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as described in
or contemplated by the Prospectus; and, since such date, there has not
been any change in the share capital or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as described in
or contemplated by the Prospectus.
(r) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or assets of the Company or any of its subsidiaries is
the subject which, singularly or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, might have a
Material Adverse Effect or would prevent or adversely affect the
ability of the Company to perform its obligations under this
Agreement; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
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(s) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity, made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, violated or is
in violation of any provision of the United States Foreign Corrupt
Practices Act of 1977, as amended, the U.S. Anti-Bribery and Fair
Competition Act of 1998, as amended, or the OECD Convention on
Combatting Bribery of Foreign Public Officials in Business
Transactions or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(t) Neither the Company nor any of its subsidiaries is (i) in
violation of its memorandum or articles of association or equivalent
constitutive documents, (ii) in default in any respect, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its property or
assets is subject or (iii) in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject, except, in the case of
clauses (ii) and (iii), any violations or defaults which, singularly
or in the aggregate, would not have a Material Adverse Effect.
(u) Each of the Company and its subsidiaries possesses all
licenses, permits, certificates, franchises, approvals and other
authorizations necessary for the conduct of their respective
businesses and the ownership, lease and operation of their respective
properties; all such licenses, permits, certificates, franchises,
approvals and other authorizations are in full force and effect and
each of the Company and its subsidiaries is in compliance therewith in
all material respects, except where the failure to possess such
licenses, permits, certificates, franchises, approvals and other
authorizations would not, singularly or in the aggregate, have a
Material Adverse Effect; and none of the Company and any of its
subsidiaries has received any notice of any proceedings relating to
the revocation or modification of any such license, permit,
certificate, franchise, approval or authorization which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling
or result, might have a Material Adverse Effect.
(v) Neither the Company nor any of its subsidiaries is or, after
giving effect to the offering and sale of the ADSs and the application
of the proceeds thereof as described in the Prospectus, will become an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended and the rules and regulations of the Commission
thereunder.
(w) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any action
designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or
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which might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the
Company.
(x) The Company and its subsidiaries own or possess the right to
use all patents, patent applications, trademarks, trademark
registrations, service marks, service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights necessary
for the conduct of their respective businesses, and the Company is not
aware of any claim to the contrary or any challenge by any other
person to the rights of the Company and its subsidiaries with respect
to the foregoing. To its knowledge, the Company's business as now
conducted and as proposed to be conducted does not and will not
infringe or conflict with any patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses or other intellectual
property or franchise right of any person. Except as described in the
Prospectus, no claim has been made against the Company alleging the
infringement by the Company of any patent, trademark, service mark,
trade name, copyright, trade secret, license in or other intellectual
property right or franchise right of any person.
(y) The Company and each of its subsidiaries have good and
marketable title or have valid rights to lease or otherwise use, all
items of real or personal property which are material to the business
of the Company and its subsidiaries taken as a whole, in each case
free and clear of all liens, encumbrances, claims and defects.
(z) No labor disturbance by the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
imminent which might be expected to have a Material Adverse Effect.
The Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate
employment with the Company or any such subsidiary.
(aa) Each of the Company and its subsidiaries is in compliance
with all applicable laws relating to employee benefit plans, share
option and incentive plans or other employee compensation plans
existing on the date hereof, except for any non-compliance which,
singularly or in the aggregate, would not have a Material Adverse
Effect.
(bb) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release
of any kind of toxic or other wastes or other hazardous substances by,
due to, or caused by the Company or any of its subsidiaries (or, to
the best of the Company's knowledge, any other entity for whose acts
or omissions the Company or any of its subsidiaries is or may be
liable) upon any of the property now or previously owned or leased by
the Company or any of its subsidiaries, or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any
violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect; there
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has been no disposal, discharge, emission or other release of any kind
onto such property or into the environment surrounding such property of
any toxic or other wastes or other hazardous substances with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such disposal, discharge, emission, or other release of any kind
which would not have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
(cc) The Company and each of its subsidiaries have duly filed
with the appropriate taxing authorities all applicable tax returns,
reports and other information required to be filed through the date
hereof and have paid all applicable taxes due and payable for which
they are liable; each such tax return, report or other information
was, when filed, accurate and complete in all material respects; and
neither the Company nor any of its subsidiaries has any tax deficiency
or claim outstanding or assessed or, to the best of the Company's
knowledge, proposed against it which could reasonably be expected to
have a Material Adverse Effect.
(dd) Based upon the Company's current operations and assets,
including the Company's current and planned business activities as
described in or contemplated by the Prospectus, and applicable laws as
of the date hereof, the Company does not believe that it is a passive
foreign investment company, as defined in Section 1296(a) of the
United States Internal Revenue Code of 1986, as amended, and does not
expect to become a passive foreign investment company in the future.
(ee) Except as otherwise described in the Prospectus, under
current English laws and regulations, all dividends and other
distributions declared and payable in respect of Ordinary Shares may
be paid by the Company to the holder thereof (including the Depositary
or its nominee) in pounds sterling that may be converted into foreign
currency and freely transferred out of the United Kingdom, and, except
as set forth in the Prospectus, all such dividends and other
distributions made to holders of the Shares who are non-residents of
the United Kingdom will not be subject to income, withholding or other
taxes under the laws and regulations of the United Kingdom and are
otherwise free and clear of any other tax, duty, withholding or
deduction in the United Kingdom and without the necessity of obtaining
any consents, approvals, authorizations, orders or clearances from or
registering with any governmental agency or body or any stock exchange
authority of the United Kingdom.
(ff) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(gg) The Company and each of its 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
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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.
(hh) The minute books of the Company and each of its subsidiaries
have been made available to the Underwriters and counsel for the
Underwriters, and such books (i) contain a complete summary of all
meetings and actions of the directors and shareholders of the Company
and each of its subsidiaries since the time of its respective
organization through the date of the latest meeting and action, and
(ii) accurately in all material respects reflect all transactions
referred to in such minutes.
(ii) No person or entity has the right to require registration of
Ordinary Shares or other securities of the Company or to require the
Company to include securities owned by such person or entity in the
securities registered pursuant to the Registration Statements or the
ADS Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act because of the filing or effectiveness of the
Registration Statements or otherwise, except for persons and entities
who have irrevocably waived such right until the date 180 days after
the date hereof.
(jj) Neither the Company nor any of its subsidiaries is a party
to any contract, agreement or understanding (whether oral or written)
with any person that would give rise to a valid claim against the
Company or the Underwriters for a brokerage commission, finder's fee
or like payment in connection with the offering and sale of the Shares
and ADSs.
(kk) No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(ll) Except as described in the Prospectus, there are no material
acquisitions of businesses or assets by the Company or any of its
subsidiaries pending, contemplated or currently being negotiated.
(mm) The ADSs have been approved for listing, subject only to
notice of issuance and evidence of satisfactory distribution, on the
National Association of Securities Dealers, Inc. Automated Quotation
National Market System (the "Nasdaq National Market").
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and
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conditions herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
that number of Firm ADSs set forth opposite the name of such Underwriter in
Schedule A hereto.
The purchase price to be paid by the Underwriters to the Company for
the ADSs will be $_____ per ADS, net of underwriting discounts and commissions
(the "Purchase Price").
Delivery of and payment for the Firm ADSs shall be made at the office
of Simpson Thacher & Bartlett at 99 Bishopsgate, London, EC2M 3YH, England at
2:00 P.M., London time, on the third full business day following the effective
date of the Initial Registration Statement or at such other date or place as
shall be determined by agreement between the Representatives and the Company.
This date and time are sometimes referred to as the "First Closing Date." On the
First Closing Date, the Company shall (i) deliver or cause to be delivered
certificates with respect to the Firm Shares to The Bank of New York, as
Depositary (which may be delivered to The Bank of New York, London office, as
custodian for the Depositary), (ii) cause the Depositary to issue one or more
ADRs evidencing the Firm ADSs representing such Firm Shares to be registered in
such names as specified below and (iii) deliver or cause to be delivered such
ADRs to the Representatives for the account of each Underwriter, in each case,
against payment to or upon the order of the Company of the purchase price
therefor by wire transfer in (same day) funds to the accounts specified by the
Company to the Representatives upon two business days' prior notice. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder. Upon delivery, the ADRs evidencing the Firm ADSs representing the
Firm Shares shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Closing Date.
For the purpose of expediting the checking and packaging of the
relevant Firm Share certificates and ADRs evidencing the Firm ADSs representing
the Firm Shares, the Company shall make such certificates (or a copy thereof in
the case of the Firm Share certificates) and ADRs available for inspection by
the Representatives in New York, New York, not later than 2:00 P.M., New York
time, on the business day prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm ADSs as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional ADSs. The price
per share to be paid for the Optional ADSs shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of Optional ADSs specified
in the written notice by SG Cowen described below and the Underwriters agree,
severally and not jointly, to purchase such Optional ADSs. Such Optional ADSs
shall be purchased from the Company for the account of each Underwriter in the
same proportion as the number of Firm ADSs set forth opposite such Underwriter's
name bears to the total number of Firm ADSs (subject to adjustment by SG Cowen
to eliminate fractions). The option granted hereby may be exercised as to all or
any part of the Optional ADSs at any time, and from time to time, not more than
thirty (30) days subsequent to the date of this Agreement. No Optional ADSs
shall be sold and delivered unless the Firm ADSs previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional ADSs
or any portion
<PAGE>
12
thereof may be surrendered and terminated at any time upon notice by SG Cowen to
the Company.
The option granted hereby may be exercised by written notice being
given to the Company by SG Cowen setting forth the number of Optional ADSs to be
purchased by the Underwriters and the date and time for delivery of and payment
for the Optional ADSs. Each date and time for delivery of and payment for the
Optional ADSs (which may be the First Closing Date, but not earlier) is herein
called the "Option Closing Date" and, except as otherwise agreed by the Company
and SG Cowen, shall not be earlier than two (2) business days nor later than
five (5) business days after written notice is given. The Option Closing Date
and the First Closing Date are herein referred to as the "Closing Dates".
Delivery of and payment for the Optional ADSs shall be made at the
office of Simpson Thacher & Bartlett at 99 Bishopsgate, London, EC2M 3YH,
England at 2:00 P.M., London time, on the Option Closing Date or at such other
date or place as shall be determined by agreement between the Representatives
and the Company. On the Option Closing Date, the Company shall (i) deliver or
cause to be delivered certificates with respect to the Option Shares to The Bank
of New York, as Depositary (which may be delivered to The Bank of New York,
London office, as custodian for the Depositary), (ii) cause the Depositary to
issue one or more ADRs evidencing the Option ADSs representing such Option
Shares to be registered in such names as specified below and (iii) deliver or
cause to be delivered such ADRs to the Representatives for the account of each
Underwriter, in each case, against payment to or upon the order of the Company
of the purchase price therefor by wire transfer in (same day) funds to the
accounts specified by the Company to the Representatives upon two business days'
prior notice. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. Upon delivery, the ADRs evidencing the Option
ADSs representing the Option Shares shall be registered in such names and in
such denominations as the Representatives shall request in writing not less than
two full business days prior to the Option Closing Date.
For the purpose of expediting the checking and packaging of the
relevant Optional Share certificates and ADRs evidencing the Optional ADSs
representing the Optional Shares, the Company shall make such certificates (or a
copy thereof in the case of the Optional Share certificates) and ADRs available
for inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York time, on the business day prior to the Option Closing Date.
The several Underwriters propose to offer the ADSs for sale upon the
terms and conditions set forth in the Prospectus.
It is understood that approximately __ of the Firm ADSs ("Directed
Shares") will initially be reserved by the Underwriters for offer and sale to
employees and persons having business relationships with the Company and its
subsidiaries ("Directed Share Participants") upon the terms and conditions set
forth in the Prospectus and in accordance with the rules and regulations of the
National Association of Securities Dealers, Inc. Under no circumstances will SG
Cowen or any Underwriter be liable to the Company or to any Directed Share
Participant for
<PAGE>
13
any action taken or omitted to be taken in good faith in connection with such
Directed Share Program. To the extent that any Directed Shares are not
affirmatively reconfirmed for purchase by any Directed Share Participant on or
immediately after the date of this Agreement, such Directed Shares may be
offered to the public as part of the public offering contemplated hereby.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the Representatives and
file such Rule 462(b) Registration Statement with the Commission on
the date hereof; prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the second business day following
the execution and delivery of this Agreement; make no further
amendment or any supplement to the Registration Statements, the ADS
Registration Statement or to the Prospectus to which the
Representatives shall reasonably object by notice to the Company after
a reasonable period to review; advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
either of the Registration Statements or the ADS Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Shares or ADSs for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statements, the
ADS Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, use
promptly its best efforts to obtain its withdrawal.
(b) The Company will file promptly with the Commission any
amendment to the Registration Statements, the ADS Registration
Statement, the Prospectus or any supplement to the Prospectus that
may, in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission.
(c) If at any time prior to the expiration of nine months after
the effective date of the Initial Registration Statement and during
which a prospectus relating to the Shares is required to be delivered
any event occurs as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Securities Act, the Company will promptly notify
the Representatives thereof and upon their request will prepare an
amended or supplemented Prospectus which will correct such statement
or omission or
<PAGE>
14
effect such compliance. The Company will furnish without charge to
each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of such
amended or supplemented Prospectus; and in case any Underwriter is
required to deliver a prospectus relating to the Shares nine months or
more after the effective date of the Initial Registration Statement,
the Company upon the request of the Representatives and at the expense
of such Underwriter will prepare promptly an amended or supplemented
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed copy of
each of the Registration Statements and the ADS Registration Statement
as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith.
(e) The Company will deliver promptly to the Representatives
such number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statements and the ADS Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits), (ii) each Preliminary Prospectus and (iii) the Prospectus
(not later than 10:00 A.M., New York time, on the business day
following the execution and delivery of this Agreement or if not
practicable, as soon thereafter as practicable) and any amended or
supplemented Prospectus (not later than 10:00 A.M., New York time, on
the business day following the date of such amendment or supplement or
if not practicable, as soon thereafter as possible).
(f) The Company will make generally available to its
shareholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Initial Registration
Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158).
(g) The Company will promptly take from time to time such
actions as the Representatives may reasonably request to qualify the
shares and ADSs for offering and sale under the securities or Blue Sky
laws of such jurisdictions as the Representatives may designate and to
continue such qualifications in effect for so long as required for the
distribution of the ADSs; PROVIDED that the Company and its
subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction;
(h) The Company will prepare and to furnish to the holders of
ADRs, as soon as practicable after the end of each fiscal year, copies
of its annual report to shareholders for such year, which will include
a description of operations and annual consolidated financial
statements of the Company and its subsidiaries prepared in conformity
with U.S.
<PAGE>
15
GAAP, and also to prepare and to furnish the holders of ADRs, as soon
as available, copies of its quarterly reports, which will include
unaudited quarterly consolidated financial information prepared in
conformity with U.S. GAAP; and during the period of five years from
the date hereof, the Company will deliver to the Representatives and,
upon request, to each of the other Underwriters, (i) as soon as they
are available, copies of all reports or other communications furnished
to shareholders and (ii) as soon as they are available, copies of any
reports and financial statements furnished or filed with the
Commission pursuant to the Exchange Act or any national securities
exchange or automatic quotation system on which the ADSs are listed or
quoted.
(i) The Company agrees for a period of 180 days from the date of
the Prospectus, not to, directly or indirectly, issue, offer, pledge,
sell, contract to sell or sell or grant any contract, option, right or
warrant to purchase, purchase any option to sell, or otherwise
transfer or dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition,
transfer or purchase by any person at any time in the future of) any
ADSs, Ordinary Shares (other than Ordinary Shares issued pursuant to
employee share option and incentive plans existing on the date hereof)
or other share capital of the Company or securities convertible or
exercisable or exchangeable for any such securities, or sell or grant
options, rights or warrants with respect to any such securities (other
than the grant of options pursuant to employee share option and
incentive plans existing on the date hereof or as specifically
described in or contemplated by the Prospectus) or enter into any swap
or similar agreement that transfers, in whole or in part, the economic
risk of ownership of any such securities, whether any of the foregoing
transactions is to be settled by delivery of any such securities, in
cash or otherwise, in each case without the prior written consent of
SG Cowen; and the Company further agrees to cause each officer,
director, shareholder and holder of options or warrants in securities
of the Company listed in Schedule B to furnish to the Representatives,
prior to the First Closing Date, a letter, substantially in the form
of Exhibit I hereto.
(j) The Company will promptly supply the Representatives with
copies of all correspondence to and from, and all documents issued to
and by, any governmental or regulatory agency or authority, including,
without limitation, the Registrar of Companies for England and Wales
and the Commission, relating to the offering of the ADSs.
(k) Prior to each of the Closing Dates the Company will furnish
to the Representatives, as soon as they have been prepared, copies of
any unaudited interim consolidated financial statements of the Company
for any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statements and the
Prospectus.
(l) Prior to each of the Closing Dates, the Company will not
issue any press release or other communication directly or indirectly
or hold any press conference with respect to the Company, its
condition, financial or otherwise, or earnings, business affairs or
business prospects (except for routine oral marketing communications
in the ordinary
<PAGE>
16
course of business and consistent with the past practices of the
Company and of which the Representatives are notified), without the
prior written consent of the Representatives, unless in the judgment
of the Company and its counsel, and after notification to the
Representatives, such press release or communication is required by
law.
(m) In connection with the offering of the ADSs, until SG Cowen
shall have notified the Company of the completion of the resale of the
ADSs, the Company will not, and will cause its affiliated purchasers
(as defined in Regulation M under the Exchange Act) not to, either
alone or with one or more other persons, (i) bid for or purchase, for
any account in which it or any of its affiliated purchasers has a
beneficial interest, any Shares or ADSs, or attempt to induce any
person to purchase any Shares or ADSs, (ii) make bids or purchase for
the purpose of creating actual, or apparent, active trading in or of
raising the price of the Shares or ADSs, or (iii) take, directly or
indirectly, any other action which is designed to stabilize or
manipulate, or which constitutes or might reasonably be expected to
cause or result in stabilization or manipulation, of the price of any
security of the Company.
(n) The Company will not take any action prior to the Option
Closing Date which would require the Prospectus to be amended or
supplemented pursuant to Section 4(c).
(o) The Company will apply the net proceeds from the sale of the
ADSs as set forth in the Prospectus under the heading "Use of
Proceeds".
(p) The Company will use all reasonable efforts to maintain the
listing of the ADSs on the Nasdaq National Market until none of the
ADSs is outstanding.
(q) The Company will take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall become an
"investment company" within the meaning of such term under the United
States Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(r) The Company will operate its business in a manner which will
minimize the risk of the Company qualifying as a PFIC in its current
taxable year or for future taxable years.
(s) The Company will comply in all material respects with the
Deposit Agreement so that ADRs evidencing ADSs will be executed by the
Depositary and delivered to the Underwriters on each Closing Date.
5 PAYMENT OF EXPENSES. The Company agrees with the Underwriters to
pay (a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the ADSs and any taxes payable in that connection; (b) the costs
incident to the registration of the Shares and ADSs under the Securities Act;
(c) the costs incident to the preparation, printing and distribution of the
Registration Statements, ADS Registration Statement, Preliminary Prospectus,
<PAGE>
17
Prospectus any amendments, supplements and exhibits thereto, (d) the costs of
printing, reproducing and distributing the Agreement Among Underwriters between
the Representatives and the Underwriters, the Master Selected Dealers'
Agreement, the Underwriters' Questionnaire and this Agreement by mail, telex or
other means of communications; (e) the fees and expenses (including related fees
and expenses of counsel for the Underwriters) incurred in connection with
filings made with the National Association of Securities Dealers; (f) any
applicable listing or other fees; (g) the fees and expenses of qualifying the
ADSs (and the Shares) under the securities laws of the several jurisdictions as
provided in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and expenses of
counsel to the Underwriters); (h) all fees and expenses of the registrar and
transfer agent of the Shares; (i) all fees and expenses in connection with the
application for inclusion of the ADSs on the Nasdaq National Market or the
obtaining of any approval from the Registrar of Companies for England and Wales
or any other relevant authority in the United Kingdom; (j) the costs and
expenses of depositing any Shares under the Deposit Agreement against issuance
of ADRs evidencing the ADSs; (k) the fees and expenses (including fees and
disbursements of counsel) of the Depositary and any nominee or custodian
appointed under the Deposit Agreement, other than the fees and expenses to be
paid by holders of ADRs (except the Underwriters in connection with the initial
purchase of the ADSs) and such other fees and expenses as the Company and the
Depositary shall otherwise agree are to be incurred by the Depositary for its
own account; (l) the fees and expenses of any Authorized Agent (as defined in
Section 22 hereof); (m) all stamp or other issuance or transfer taxes or
governmental duties, if any, payable by the Underwriters in connection with the
offer and sale of the ADSs (including the Shares relating thereto) to the
Underwriters and by the Underwriters to the initial purchasers thereof; (n) all
fees and expenses incurred by the Underwriters in connection with the Directed
Share Program, including counsel fees and any stamp duties or other taxes
incurred by the Underwriters in connection with the Directed Share Program; and
(o) all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement (including, without limitation, the fees and
expenses of the Company's counsel and the Company's independent accountants);
PROVIDED that, except as otherwise provided in this Section 5 and in Section 9,
the Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel and the expenses of advertising any offering of the
ADSs made by the Underwriters.
6 CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
when made and on each of the Closing Dates, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness of either of the
Registration Statements or the ADS Registration Statement or any part
thereof shall have been issued and no proceedings for that purpose
shall have been initiated or threatened by the Commission, and any
request for additional information on the part of the Commission (to
be included in the Registration Statements, the ADS Registration
Statement, the
<PAGE>
18
Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Representatives. The Rule 462(b)
Registration Statement, if any, and the Prospectus shall have been
timely filed with the Commission in accordance with Section 4(a).
(b) None of the Underwriters shall have discovered and disclosed
to the Company on or prior to such Closing Date that any Registration
Statement, the ADS Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or
omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein (with respect to the Prospectus and any
amendment or supplement thereto, in light of the circumstances under
which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of this Agreement, the
Deposit Agreement, the Shares, the ADSs and the ADRs and the
Registration Statements, the ADS Registration Statement and the
Prospectus or any amendment or supplement thereto, and all other legal
matters relating to this Agreement, the Deposit Agreement and the
transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(d) Clifford Chance Limited Liability Partnership shall have
furnished to the Representatives such counsel's written opinion, as
U.S. counsel to the Company, addressed to the Underwriters and dated
such Closing Date, in form and substance reasonably satisfactory to
the Representatives, to the effect that:
(i) Assuming due authorization, execution and delivery by
the Company under the laws of England and Wales, this Agreement
has been duly executed and delivered by the Company insofar as
New York law is concerned.
(ii) Assuming due authorization, execution and delivery by
the Company under the laws of England and Wales, the Deposit
Agreement has been duly executed and delivered by the Company
insofar as New York law is concerned and, assuming due
authorization, execution and delivery of the Deposit Agreement by
the Depositary and that each of the Depositary and the Company
has full power, authority and legal right to enter into and
perform its obligations thereunder, constitutes a valid and
legally binding agreement of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and to general principles of
equity (regardless of whether in a proceeding in equity or at
law).
<PAGE>
19
(iii) Assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary and by the Company, upon
due issuance by the Depositary of the ADRs evidencing ADSs being
delivered by the Company at such Closing Date against the deposit
of Shares to be deposited by the Company in respect thereof in
accordance with the provisions of the Deposit Agreement and
against payment of the consideration therefor set forth herein,
such ADRs will be duly and validly issued and will entitle the
persons in whose names the ADRs are registered to the rights
specified therein and in the Deposit Agreement.
(iv) Assuming the validity of such actions under the laws of
England and Wales, under the laws of the State of New York
relating to submission to personal jurisdiction, the Company has,
pursuant to Section 22 of this Agreement, legally, validly and
irrevocably submitted to the personal jurisdiction of any state
or federal court located in the Borough of Manhattan, The City of
New York, New York in any action arising out of or relating to
this Agreement or the transactions contemplated hereby, and has
legally, validly and effectively appointed the Authorized Agent
as its authorized agent for the purposes described in Section 22
of this Agreement, and the Company has validly and irrevocably
waived (A) the defense of an inconvenient forum to the
maintenance of any such suit or proceeding and (B) any immunity
to jurisdiction to which it may otherwise be entitled in any such
suit or proceeding.
(v) The sale of the ADSs being delivered by the Company at
such Closing Date, the issue of the Shares being deposited by the
Company with the Depositary against issuance of the ADRs being
delivered by the Company, the deposit of such Shares by the
Company with the Depositary or its nominee against issuance of
the ADRs to be delivered, the compliance by the Company with all
of the provisions of this Agreement and the Deposit Agreement and
the consummation by the Company of the transactions contemplated
herein and therein, do not and will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, (A) any existing applicable law, rule
or regulation (other than the securities or "Blue Sky" laws of
the State of New York, as to which such counsel need express no
opinion) or any judgment, order or decree known to us after
reasonable investigation of any government, governmental
instrumentality or court of the United States or the State of New
York having jurisdiction over the Company, its subsidiaries, or
any of its or their properties or assets.
(vi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States or the State of
New York is required in connection with the purchase and
distribution of the ADSs by the Underwriters from the Company
pursuant to this Agreement or the consummation by the Company of
the transactions contemplated by this Agreement and the Deposit
Agreement, except (A) the registration under the Securities Act
of the Shares and ADSs and (B) such other
<PAGE>
20
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or "Blue Sky" laws in connection with the purchase and
distribution of the ADSs to be purchased under this Agreement by
the Underwriters.
(vii) The statements set forth in the Prospectus under the
caption "Description of the American Depositary Shares", insofar
as such statements purport to constitute a summary of the terms
of the Deposit Agreement, ADSs and ADRs, and under the caption
"Taxation", insofar as they purport to describe matters of law or
regulation of the United States or to the provisions of documents
therein described which are governed by United States law are
true and accurate in all material respects.
(viii) The description in the Registration Statements, ADS
Registration Statement and Prospectus of U.S. statutes, legal or
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly summarize the
information about them required to be disclosed.
(ix) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion, the Rule 462(b) Registration Statement, if any, was
filed with the Commission on the date specified therein, the
Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and, to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceeding for that purpose is pending or threatened by the
Commission.
(x) The Registration Statements, as of their respective
effective dates and the Prospectus, as of its date, and any
further amendments or supplements thereto, as of their respective
dates, made by the Company prior to such Closing Date (other than
the financial statements and other financial data contained
therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations
of the Commission thereunder.
(xi) The Company is not and, after giving effect to the
offering and sale of the ADSs, will not be an "investment
company" or an entity "controlled" by an "investment company,"
within the meaning of the Investment Company Act and the rules
and regulations of the Commission thereunder.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the federal laws of the United States
and the laws of the State of New York and (ii) rely (to the extent such counsel
deems proper), as to matters involving the application of the laws of the United
Kingdom upon the opinion of each of CMS Cameron
<PAGE>
21
McKenna referred to in Section 6(e) below and Clifford Chance Limited Liability
Partnership referred to in Section 6(f) below if so specified in its opinion.
Such counsel shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated such Closing Date, in form
and substance satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statements and the ADS Registration Statement and (y) based
on such counsel's examination of the Registration Statements and the ADS
Registration Statement and such counsel's investigations made in connection with
the preparation of the Registration Statements and the ADS Registration
Statement and "conferences with certain officers and employees of and with
auditors for and counsel to the Company", such counsel has no reason to believe
that the Registration Statements and the ADS Registration Statement, as of their
respective effective dates, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the Prospectus as
of its date and as of the Closing Date contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statements, the ADS
Registration Statement or the Prospectus.
The foregoing opinion and statement may be qualified by a statement
to the effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statements, the ADS Registration Statement or the Prospectus and takes no
responsibility therefor except to the extent set forth in the opinion described
in clauses (vii) and (viii) above.
(e) CMS Cameron McKenna shall have furnished to the
Representatives their written opinion, as English counsel to the
Company, addressed to the Underwriters and dated such Closing Date,
in form and substance reasonably satisfactory to the Representatives,
to the effect that:
(i) The holders of issued share capital of the Company are not
entitled to pre-emptive or other rights to acquire the Shares to be
allotted by the Company in respect of the ADSs to be purchased from
the Company hereunder which have not been complied with (nor would the
deposit of such Shares pursuant to the Deposit Agreement give rise to
such rights), except for any such rights which have been irrevocably
waived by the holders thereof; there are no restrictions in the
memorandum and articles of association of the Company or any other
instrument known to such counsel which would prevent the Shares to be
allotted by the Company to the nominee of the Depository; there are no
restrictions in the memorandum and articles of association of the
Company or any other instrument known to such counsel on subsequent
transfers of the Shares or on the voting rights conferred thereby.
<PAGE>
22
(ii) The statements set forth in the Prospectus under the caption
"Description of Share Capital" insofar as they purport to constitute a
summary of the terms of the Shares, under the captions "Exchange
Controls and Other Limitations Affecting Security Holders",
"Management--Our Share Option Plan", "Management--Our Savings Related
Share Option Scheme", "Taxation--Taxation of Dividends--United
Kingdom", "Taxation--Taxation of Capital Gains--United Kingdom",
"Taxation--U.K. Inheritance and Gift Tax", "Taxation--U.K. Stamp Duty
and Stamp Duty Reserve Tax", and "Service of Process and Enforcement
of Foreign Judgments" insofar as they purport to describe matters of
law or regulation of England and Wales or to the provisions of
documents therein described which are governed by English law are true
and accurate in all material respects, and nothing has been omitted
from such statements which would make the same misleading in any
material respect.
(iii) Insofar as matters of English law are concerned, the
Registration Statements, the ADS Registration Statement and the
Prospectus and the filing of such documents with the Commission have
been duly authorized by and on behalf of the Company; and each of the
Registration Statements and the ADS Registration Statement has been
duly executed pursuant to such authorization by and on behalf of the
Company.
(iv) A final and conclusive judgment (with no further right of
appeal) of a competent court sitting in New York City arising out of
or in relation to the obligations of the Company under this Agreement
or the Deposit Agreement would be enforceable by fresh proceedings
brought in the courts of England and Wales against the Company,
subject to the discussion of enforceability of judgments set forth in
the Prospectus under the caption "Service of Process and Enforcement
of Foreign Judgments".
In rendering such opinion, such counsel may state that their
opinion is limited to matters governed by the laws of England and Wales and
shall state that each of Clifford Chance Limited Liability Partnership and
Simpson Thacher & Bartlett may rely upon their opinion with respect to
matters of English law.
(f) Clifford Chance Limited Liability Partnership shall have
furnished to the Representatives their written opinion, as special English
counsel to the Company, addressed to the Underwriters and dated such
Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each of its subsidiaries (other than
Gemini Genomics AB, Gemini Genomics Inc. and Newfound Genomics
Inc.) have been duly incorporated and are validly existing as
corporations under the laws of England and Wales and have all
power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are
engaged.
<PAGE>
23
(ii) The Company has an authorized share capital as set
forth in the Prospectus, and all of the issued share capital of
the Company, including the Shares represented by the ADSs being
delivered on such Closing Date, has been duly and validly
authorized and issued, is fully paid and not subject to further
calls for funds and conforms to the description thereof contained
in the Prospectus.
(iii) The Company has full power and authority to enter into
each of this Agreement and the Deposit Agreement. Each of this
Agreement and the Deposit Agreement has been duly authorized,
executed and delivered by the Company.
(iv) All the outstanding share capital of each subsidiary of
the Company incorporated under the laws of England and Wales has
been duly authorized and validly issued, is fully paid and,
except to the extent set forth in the Prospectus, are owned by
the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
(v) The sale of the ADSs being delivered by the Company at
such Closing Date, the issue of the Shares being deposited by the
Company with the Depositary against issuance of the ADRs being
delivered by the Company, the deposit of such Shares by the
Company with the Depositary or its nominee against issuance of
the ADRs to be delivered, the compliance by the Company with all
of the provisions of this Agreement and the Deposit Agreement and
the consummation by the Company of the transactions contemplated
herein and therein, will not result in any violation of the
provisions of the memorandum and articles of association of the
Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency in England
and Wales having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties or assets.
(vi) No consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or
body in England or Wales is required in connection with the
purchase and distribution of the ADSs by the Underwriters from
the Company, the execution, delivery and performance of this
Agreement and the Deposit Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby,
except for statutory notification by the Company to the Registrar
of Companies of the allotment of shares of the Company (as
required by the Companies Act of 1985 (as amended)).
(vii) The statements set forth in the Prospectus under the
caption "Business--Intellectual Property", "Business--Agreements
with Third Parties", "Management--Employment and Services
Agreements", "Management--Share Option Schemes and Related
Information--Our International Executive Share
<PAGE>
24
Option Plan" and "Management--Limitation on Liability and Other
Indemnification Matters" insofar as they purport to describe
matters of law or regulation of England and Wales or to the
provisions of documents therein described which are governed by
English law are true and accurate in all material respects, and
nothing has been omitted from such statements which would make
the same misleading in any material respect.
(viii) The indemnification and contribution provisions set
forth in Section 7 herein do not contravene the public policy or
laws of England and Wales.
(ix) The Underwriters would be permitted to commence
proceedings against the Company based on this Agreement in the
High Court of Justice of England and Wales, and the holders of
ADSs evidenced by ADRs (or the Depository acting on their behalf)
would be permitted to commence proceedings against the Company
based on this Agreement, the Deposit Agreement or the ADRs in the
High Court of Justice of England and Wales (in each case assuming
that such Underwriters and holders have direct contractual rights
against the Company under either this Agreement or the Deposit
Agreement or the ADRs as appropriate which arise as a result of
valid and binding obligations of the Company under such documents
in accordance with the laws of the State of New York); PROVIDED
that (A) the High Court of Justice has power to control any
proceedings before it, including by staying or dismissing
proceedings; (B) in making a decision as to whether to stay or
dismiss proceedings, the High Court of Justice will take into
account all material circumstances including, in particular, the
existence of proceedings in another jurisdiction; and (C) the
High Court of Justice is obliged to stay or dismiss proceedings
before it if the courts of another State party to the EC
Convention on the Jurisdiction and Enforcement of Judgments in
Civil and Commercial Matters (signed at Brussels, 1968, as
amended) or the EC/EFTA Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (signed
at Lugano, 1988, as amended) were seised first of proceedings
involving the same cause of action and between the same parties.
The High Court of Justice may stay or dismiss proceedings before
it if a court in such a State was first seised of related
proceedings (even if not between the same parties or involving
the same cause of action).
(x) Assuming that each of (A) the submission by the Company
to the jurisdiction of any federal or state court in the Borough
of Manhattan in the City of New York, County and State of New
York, United States of America in this Agreement and (B) the
method of service of process set forth in this Agreement
constitutes a valid and legally binding obligation of the Company
under the laws of the State of New York, then the English courts
should recognize such submission to jurisdiction and (provided
the relevant agent has accepted its appointment) to such method
of service of process.
<PAGE>
25
(xi) The Company can sue and be sued in its own name; under
English law, the agreement of the Company that this Agreement and the
Deposit Agreement shall be governed by the laws of the State of New
York will be recognized by the courts of England and Wales in
accordance with and subject to the Contracts (Applicable Law) Act
1990; and the Company is not entitled to any immunity as a defense to
any suit or action brought or maintained in respect of its obligations
under such agreements.
(xii) To ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement or the Deposit Agreement
in England and Wales, it is not necessary that, prior to seeking
enforcement thereof, any such document be filed or recorded with any
court or other authority in England and Wales save to the extent that
any such filing or recording relates to or is connected with the
payment of any stamp or similar tax.
(xiii) The certificates used to evidence the Shares are in due
and proper form and comply with all applicable statutory requirements
of England and Wales.
(xiv) All dividends and other distributions properly declared and
payable on the Shares may under the current laws and regulations of
England and Wales be paid in pounds sterling (including any such
dividends or distributions to be paid to the Depository) and pounds
sterling may be converted by the recipient into foreign currency that
may be freely transferred out of England and Wales without the
necessity of obtaining any consents, approvals, authorizations, orders
or clearances from or registering with any governmental agency or body
or any stock exchange authority in each case of England and Wales.
(xv) It is not necessary, prior to the Underwriters seeking
enforcement of this Agreement or the Deposit Agreement in the United
Kingdom, that any stamp or similar tax be paid.
(xvi) No stamp or other issuance or transfer taxes or duties are
payable in accordance with United Kingdom tax law, by or on behalf of
the Underwriters to the United Kingdom taxation authorities or other
United Kingdom agencies in connection with the following:
(a) the issuance of the Shares by the Company;
(b) the deposit by the Company with the Depository or its
nominee, of the Ordinary Shares against the issuance of
ADRs evidencing the ADSs pursuant to the Deposit
Agreement;
(c) the delivery of the ADSs to or for the respective
accounts of the Underwriters in the manner contemplated
herein; or
<PAGE>
26
(d) the sale and delivery by the Underwriters of the ADSs
to the initial purchasers thereof provided that either
no instrument of transfer is used to effect the sale or
any such instrument is executed and retained outside
the United Kingdom and provided also that if any of the
Underwriters are within the charge to United Kingdom
corporation tax, any profit on such sale or delivery is
not attributable to any branch or agency or permanent
establishment in the United Kingdom of the
Underwriters.
(xvii) Except as set out in the Prospectus, all dividends and
other distributions made to holders of Ordinary Shares or ADSs who are
non-residents of the United Kingdom and are entitled to rely on the
provisions of a double tax treaty of which the United Kingdom is a
signatory conferring exemption from U.K. tax on dividends and other
distributions in respect of their holding of Ordinary Shares or ADSs
will not be subject to United Kingdom income, withholding or other
taxes under United Kingdom laws and regulations and are otherwise free
and clear of any other tax, duty, withholding or deduction in the
United Kingdom.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the laws of England and Wales and shall state
that each of Clifford Chance Limited Liability Partnership and Simpson Thacher &
Bartlett may rely upon their opinion with respect to matters of English law for
purposes of their opinions with respect to matters of U.S. law.
(g) Roger Dickinson, shall have furnished to the Representatives his
written opinion, as general counsel to the Company, addressed to the
Underwriters and dated such Closing Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) No person or entity has the right to require registration of
Ordinary Shares or other securities of the Company because of the
filing or effectiveness of the Registration Statements or otherwise,
except for persons and entities who have expressly waived such right
for a period beginning on the date hereof and ending at least 180 days
after the date hereof.
(ii) To the best of such counsel's knowledge, the Company and
each of its subsidiaries have good and marketable title to, or have
valid rights to lease or otherwise use, all items of real or personal
property which are material to the business of the Company and its
subsidiaries taken as a whole, in each case free and clear of all
liens, encumbrances, claims and defects that may result in a Material
Adverse Effect.
<PAGE>
27
(iii) The Company and its subsidiaries own or possess the right
to use all patents, patent applications, trademarks, trademark
registrations, service marks, service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described
in the Prospectus as being owned by them for the conduct of their
respective businesses, and neither the Company nor any of its
subsidiaries has received any notice of any challenge by any other
person to the rights of the Company and its subsidiaries with respect
to the foregoing. To such counsel's knowledge, the Company's business
as now conducted does not infringe or conflict with any patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses or other intellectual property or franchise right of any
person. Except as described in the Prospectus, no claim has been made
against the Company alleging the infringement by the Company of any
patent, trademark, service mark, trade name, copyright, trade secret,
license in or other intellectual property right or franchise right of
any person.
(iv) The Company and each of its subsidiaries possesses all
licenses, permits, certificates, franchises, approvals and other
authorizations necessary to the conduct of their respective businesses
and the ownership, lease and operation of their respective properties;
all such licenses, permits, certificates, franchises, approvals and
other authorizations are in full force and effect and each of the
Company and its subsidiaries is in compliance therewith in all
material respects except where failure to possess such licenses,
permits, certificates, franchises, approvals and other authorizations
would not, in the aggregate, have a Material Adverse Effect; and none
of the Company and any of its subsidiaries has received any notice of
any proceedings relating to the revocation or modification of any such
license, permit, certificate, franchise, approval or authorization
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or result, might have a Material Adverse
Effect.
(v) Neither the Company nor any of its subsidiaries (a) is in
violation of its memorandum and articles of association or by-laws,
(b) is in default, and no event has occurred, which, with notice or
lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition contained
in any agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject or (c)
is in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject
or has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or failures
which, either individually or in the aggregate, would not have a
Material Adverse Effect.
(vi) The sale of the ADSs being delivered by the Company at such
Closing Date, the issue of the Shares being deposited by the Company
with the Depositary against issuance of the ADRs being delivered by
the Company, the
<PAGE>
28
deposit of such Shares by the Company with the Depositary or its
nominee against issuance of the ADRs to be delivered, the compliance
by the Company with all of the provisions of this Agreement and the
Deposit Agreement and the consummation by the Company of the
transactions contemplated herein and therein, will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or with notice, lapse of time or otherwise, constitute a default
under any indenture, mortgage, deed of trust, loan agreement or other
instrument known to such counsel after reasonable investigation to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries are
subject.
(vii) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or asset of the Company or any of its subsidiaries is the
subject which, singularly or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, might have a Material
Adverse Effect or would prevent or adversely affect the ability of the
Company to perform its obligations under this Agreement; and, to the
best of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than England and Wales.
(h) Emmet, Marvin & Martin shall have furnished to the
Representatives their written opinion, as counsel to the Depositary,
addressed to the Underwriters and dated such Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming that the Company has full
power, authority and legal right to enter into the Deposit
Agreement and that the Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal and
binding obligation of the Company in accordance with its terms, the
Deposit Agreement is a valid and binding agreement of the
Depositary enforceable against the Depositary in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) or an implied covenant of good faith and fair dealing.
(ii) Upon due issuance, execution (including, if necessary,
countersignature by the ADS registrar) and delivery by the
Depositary of ADRs evidencing ADSs against the deposit of validly
issued and outstanding Ordinary Shares of the Company in accordance
with the terms of the Deposit Agreement, such ADRs will be legally
issued, and the registered holders thereof will be
<PAGE>
29
entitled to the rights of owners of the ADRs evidencing such ADSs
specified therein and in the Deposit Agreement.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than U.S. federal and New
York State law.
(i) The Representatives shall have received from Simpson Thacher &
Bartlett, U.S. counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to such matters as the Underwriters
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for enabling them to pass upon such
matters.
(j) At the time of the execution of this Agreement, the
Representatives shall have received from Ernst and Young a letter,
addressed to the Underwriters and dated such date, in form and substance
satisfactory to the Representatives (i) confirming that they are
independent certified public accountants with respect to the Company and
its subsidiaries within the meaning of the Securities Act and the Rules and
Regulations and (ii) stating the conclusions and findings of such firm with
respect to the financial statements and certain financial information
contained or incorporated by reference in the Prospectus.
(k) On such Closing Date, the Representatives shall have received a
letter (the "bring-down letter") from Ernst & Young addressed to the
Underwriters and dated such Closing Date confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three
business days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representatives
concurrently with the execution of this Agreement pursuant to Section 6(i).
(l) The Company shall have furnished to the Representatives a
certificate, dated such Closing Date, of its Chairman of the Board, its
President and its chief financial officer stating that (i) such officers
have carefully examined the Registration Statements, the ADS Registration
Statement and the Prospectus and, in their opinion, the Registration
Statements and the ADS Registration Statement, as of their respective
effective dates, and the Prospectus, as of each such effective date, did
not include any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary to make
the statements therein (with respect to the Prospectus and any amendment or
supplement thereto, in light of the circumstances under which they were
made) not misleading, (ii) since the effective date of the Initial
Registration Statement no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statements, the ADS
Registration Statement or the Prospectus, (iii) as of such Closing Date,
the representations and warranties of the Company contained in Section 2
hereof are true and correct and the Company has complied with all
agreements
<PAGE>
30
hereunder and satisfied all conditions on its part to be performed or
satisfied contained in Section 6 hereof at or prior to such Closing Date,
(v) subsequent to the date of the most recent audited financial statements
included in the Prospectus, there has been no material adverse change in
the financial position or results of operation of the Company and its
subsidiaries, or any change, or any development including a prospective
change, in or affecting the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries taken
as a whole, except as set forth in the Prospectus, (vi) neither the Company
nor any of its subsidiaries shall have 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 set forth
or contemplated in the Prospectus and (vii) since such date there has not
been any change in the share capital or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus.
(m) (i) Neither the Company nor any of its subsidiaries shall have
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 set forth or contemplated in the Prospectus
and (ii) since such date there shall not have been any change in the share
capital or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the business, general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale
or delivery of the Shares and ADSs on the terms and in the manner
contemplated in the Prospectus.
(n) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of such Closing Date, prevent the issuance
or sale of the Shares and ADSs; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of such Closing Date which would
prevent the issuance or sale of the Shares and ADSs.
(o) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other
<PAGE>
31
than an announcement with positive implications of a possible upgrading),
its rating of any of the Company's debt securities.
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, The
Nasdaq National Market, or the London Stock Exchange or in the U.S.
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by U.S. federal or state authorities or by
authorities in the United Kingdom or by European Union authorities, (iii)
the United States or the United Kingdom shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or the United Kingdom or there shall have been a
declaration of a national emergency or war by the United States or the
United Kingdom or (iv) there shall have occurred such a material adverse
change in general or United States or English economic, political or
financial conditions or in currency exchange rate, taxation, exchange
controls or foreign investment regulations (or the effect of international
conditions on the financial markets in the United States or the United
Kingdom shall be such) as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the sale or
delivery of the ADSs on the terms and in the manner contemplated in the
Prospectus.
(q) The Nasdaq National Market shall have approved the ADSs for
listing, subject only to official notice of issuance and evidence of
satisfactory distribution.
(r) SG Cowen shall have received the written agreements,
substantially in the form of Exhibit I hereto, of the officers, directors
and shareholders of the Company listed in Schedule B to this Agreement.
(s) The Company and the Depositary shall have executed and delivered
the Deposit Agreement (in form and substance satisfactory to the
Representatives) and the Deposit Agreement shall be in full force and
effect.
(t) The Depositary shall have furnished to the Representatives a
certificate, dated such Closing Date, of one of its authorized officers in
a form satisfactory to the Representatives.
(u) The Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
<PAGE>
32
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter,
its officers, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of the Securities Act
(collectively the "Underwriter Indemnified Parties" and, each an
"Underwriter Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus,
either of the Registration Statements, the ADS Registration Statement or
the Prospectus or in any amendment or supplement thereto, or in any blue
sky application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the under the securities laws
of any state or other jurisdiction ( such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in the Preliminary Prospectus, either
of the Registration Statements, the ADS Registration Statement or the
Prospectus or in any amendment or supplement thereto or in any Blue Sky
Application a material fact required to be stated therein or necessary to
make the statements therein (with respect to the Prospectus and any
amendment or supplement thereto, in light of the circumstances under which
they were made) not misleading or (iii) any act or failure to act, or any
alleged act or failure to act, by any Underwriter in connection with, or
relating in any manner to, the Shares and ADSs or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company and the Principal
Subsidiaries shall not be liable in the case of any matter covered by this
clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such act or failure to act undertaken or
omitted to be taken by such Underwriter through its gross negligence or
willful misconduct) and shall reimburse each Underwriter Indemnified Party
promptly upon demand for any legal or other expenses reasonably incurred by
that Underwriter Indemnified Party in connection with investigating or
preparing to defend or defending against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; PROVIDED, HOWEVER, that the Company
and the Principal Subsidiaries shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of
or is based upon (i) an untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary Prospectus, either of the
Registration Statements, the ADS Registration Statement or the Prospectus
or any such amendment or supplement, or in any Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for use therein, which information the parties hereto agree is
limited to the Underwriter's Information (as defined in Section 16); This
indemnity agreement is not exclusive and will be in addition to any
liability which the
<PAGE>
33
Company and Principal Subsidiaries might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in equity
to each Underwriter Indemnified Party.
(b Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company its officers, employees, representatives and
agents, each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively the
"Company Indemnified Parties" and each a "Company Indemnified Party")
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company Indemnified Parties may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, either of the Registration
Statements, the ADS Registration Statement or the Prospectus or in any
amendment or supplement thereto, or in any Blue Sky Application or (ii)
the omission or alleged omission to state in the Preliminary Prospectus,
either of the Registration Statements, the ADS Registration Statement or
the Prospectus or in any amendment or supplement thereto, or in any Blue
Sky Application a material fact required to be stated therein or necessary
to make the statements therein (with respect to the Prospectus and any
amendment or supplement thereto, in light of the circumstances under which
they were made) not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for use therein, and shall
reimburse the Company Indemnified Parties for any legal or other expenses
reasonably incurred by such parties in connection with investigating or
preparing to defend or defending against or appearing as third party
witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; PROVIDED that the parties hereto
hereby agree that such written information provided by the Underwriters
consists solely of the Underwriter's Information. The foregoing indemnity
agreement is not exclusive and will be in addition to any liability which
the Underwriters might otherwise have and shall not limit any rights or
remedies which may otherwise be available at law or in equity to the
Company Indemnified Parties.
(c In connection with the offer and sale of the Directed Shares, the
Company agrees, promptly upon a request in writing, to indemnify and hold
harmless SG Cowen and the other Underwriters from an against any loss,
claim, damage, expense, liability or action which (i) arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material
fact contained in any material prepared by or with the approval of the
Company for distribution to Directed Share Participants in connection with
the Directed Share Program or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) arises out of the failure of
any Directed Share Program participant to pay for or accept delivery of
Directed Shares that the Participant agreed to purchase or (iii) is
otherwise related to the Directed Share Program, other than losses, claims,
damages or
<PAGE>
34
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted directly from the bad faith or gross negligence
of SG Cowen.
(d Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure; and, PROVIDED, FURTHER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of
such counsel it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the defense of
such action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense
of the indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties, which firm shall be designated in writing by SG
Cowen, if the indemnified parties under this Section 7 consist of any
Underwriter Indemnified Party, or by the Company if the indemnified parties
under this Section 7 consist of any Company Indemnified Parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 7(a) and 7(b), shall use all reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or claim. Subject
to the provisions of Section 7(e) below, no indemnifying party shall be
liable for any settlement of any such action effected without
<PAGE>
35
its written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the request for
reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(f If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such proportion as shall
be appropriate to reflect the relative benefits received by the Company and
the Principal Subsidiaries on the one hand and the Underwriters on the
other from the offering of the ADSs 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 and the
Principal Subsidiaries on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Principal Subsidiaries on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of
the ADSs purchased under this Agreement (before deducting expenses)
received by the Company and the Principal Subsidiaries bear to the total
underwriting discounts and commissions received by the Underwriters with
respect to the ADSs purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company and the Principal Subsidiaries on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission; PROVIDED that the parties hereto agree that the
written information furnished to the Company through the Representatives by
or on behalf of the Underwriters for use in any Preliminary Prospectus,
either of the Registration Statements, the ADS Registration Statement or
the Prospectus consists solely of the Underwriter's Information. The
Company, the Principal Subsidiaries and the Underwriters agree that it
would not be just and equitable if
<PAGE>
36
contributions pursuant to this Section 7(f) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
7(f) shall be deemed to include, for purposes of this Section 7(f), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(f), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the ADSs underwritten by it and distributed to the
public was offered to the public less the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 7(f)
are several in proportion to their respective underwriting obligations and
not joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by SG Cowen, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Firm Shares if,
prior to that time, any of the events described in Sections 6(l), 6(n) or 6(o)
have occurred or if the Underwriters shall decline to purchase the ADSs for any
reason permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement
shall have been terminated pursuant to Section 8 or 10, (b) the Company shall
fail to tender the Shares or ADSs for delivery to the Depositary and the
Underwriters for any reason permitted under this Agreement, or (c) the
Underwriters shall decline to purchase the ADSs for any reason permitted under
this Agreement, the Company shall reimburse the Underwriters for the fees and
expenses of their counsel and for such other out-of-pocket expenses as shall
have been reasonably incurred by them in connection with this Agreement and the
proposed purchase of the ADSs, and upon demand the Company shall pay the full
amount thereof to SG Cowen. If this Agreement is terminated pursuant to Section
10 by reason of the default of one or more Underwriters, the Company shall not
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters
shall default in its or their obligations to purchase ADSs hereunder and the
aggregate number of ADSs which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of ADSs underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the ADSs which such defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters shall so default and the aggregate
number of ADSs with respect to which such default or defaults occur is more than
ten percent (10%) of the total number of ADSs
<PAGE>
37
underwritten and arrangements satisfactory to the Representatives and the
Company for the purchase of such ADSs by other persons are not made within
forty-eight (48) hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the ADSs of a defaulting Underwriter
or Underwriters as provided in this Section 10, (i) the Company shall have the
right to postpone the Closing Dates for a period of not more than five (5) full
business days in order that the Company may effect whatever changes may thereby
be made necessary in the Registration Statements, the ADS Registration Statement
or the Prospectus, or in any other documents or arrangements, and the Company
agrees promptly to file any amendments to the Registration Statements, the ADS
Registration Statement or supplements to the Prospectus which may thereby be
made necessary, and (ii) the respective numbers of ADSs to be purchased by the
remaining Underwriters or substituted Underwriters shall be taken as the basis
of their underwriting obligation for all purposes of this Agreement. Nothing
herein contained shall relieve any defaulting Underwriter of its liability to
the Company or the other Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 10 shall
be without liability on the part of any non-defaulting Underwriter or the
Company, except expenses to be paid or reimbursed pursuant to Sections 5 and 9
and except the provisions of Section 7 shall not terminate and shall remain in
effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person
other than the persons mentioned in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in
this Agreement shall also be for the benefit of the Underwriter Indemnified
Parties, and the indemnities of the several Underwriters shall also be for the
benefit of the Company Indemnified Parties.
12. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any person controlling any of them and
shall survive delivery of and payment for the ADSs.
13. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
<PAGE>
38
(a if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to SG Securities Corporation
Attention: Annette Grimaldi (Fax: 212-278-4287);
(b if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to Gemini Genomics plc Attention: Roger
Dickinson (Fax: 011-44-122-343-5319);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement,
(a) "business day" means any day on which the Nasdaq National Market is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
16. UNDERWRITERS' INFORMATION. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the "Underwriters'
Information" shall mean solely the following information to the extent furnished
to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion in the Prospectus: (i) the last paragraph on the
front cover page concerning the terms of the offering by the Underwriters; and
(ii) the statements concerning the Underwriters contained in paragraphs 5, 10
and 11 under the heading "Underwriting."
17. AUTHORITY OF THE REPRESENTATIVES. In connection with this
Agreement, you will act for and on behalf of the several Underwriters, and any
action taken under this Agreement by the Representatives, will be binding on all
the Underwriters.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
19. GENERAL. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The
<PAGE>
39
section headings in this Agreement are for the convenience of the parties only
and will not affect the construction or interpretation of this Agreement. This
Agreement may be amended or modified, and the observance of any term of this
Agreement may be waived, only by a writing signed by the Company and the
Representatives.
20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
21. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
22. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; WAIVER; CURRENCY INDEMNITY. (a) To the fullest extent permitted by
applicable law, the Company irrevocably submits to the non-exclusive
jurisdiction of any federal or state court in the Borough of Manhattan in the
City of New York, County and State of New York, United States of America, in any
suit or proceeding based on or arising under this Agreement, and irrevocably
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. The Company, to the fullest extent permitted by applicable
law, irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation (the "Authorized Agent"), as its authorized agent upon
whom process may be served in any such suit or proceeding. The Company
represents that it has notified its Authorized Agent of such designation and
appointment and that its Authorized Agent has accepted the same in writing. The
Company hereby irrevocably authorizes and directs its Authorized Agent to accept
such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company, mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any person to serve process
in any other manner permitted by law. The Company agrees that a final action in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company arising out of or
based on this Agreement or the transactions contemplated hereby may also be
instituted by any Underwriter, its officers and employees or any person who
controls any Underwriter within the meaning of the Securities Act in the High
Court of Justice of England and Wales and the Company expressly accepts the
jurisdiction of such court in any such action.
The Company hereby irrevocably waives, to the extent permitted by law,
any immunity to jurisdiction to which it may otherwise be entitled (including,
without limitation, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby.
The provisions of this Section 22(a) are intended to be effective upon
the execution of this Agreement without any further action by the Company or any
Underwriter and
<PAGE>
40
the introduction of a true copy of this Agreement into evidence shall be
conclusive and final evidence as to such matters.
(b The Company shall indemnify each Underwriter against any
loss incurred by it as a result of any judgment or order being given or made and
expressed and paid in a currency (the "Judgment Currency") other than U.S.
dollars and as a result of any variation as between (i) the rate of exchange at
which the U.S. dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in New
York, New York at which such Underwriter on the date of payment of such judgment
or order is able to purchase U.S. dollars with the amount of the Judgment
Currency actually received by such Underwriter. If the U.S. dollars so purchased
are greater than the amount originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Company an amount equal to the excess of the
U.S. dollars so purchased over the amount originally due to such Underwriter
hereunder. The foregoing shall constitute a separate and independent obligation
of the Company, and the Underwriters, as the case may be, and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "spot rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, U.S.
dollars.
<PAGE>
41
If the foregoing is in accordance with your understanding of the
agreement between the Company, and the several Underwriters, kindly indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
GEMINI GENOMICS PLC
By:____________________________
Name:
Title:
Accepted as of the date
first above written:
SG COWEN SECURITIES CORPORATION
CHASE SECURITIES INC.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: SG COWEN SECURITIES CORPORATION
By:______________________________
Name:
Title:
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of Firm Number of Optional
ADSs to be ADSs
NAME PURCHASED TO BE PURCHASED
---- -------------- ------------------
<S> <C> <C>
SG Cowen Securities Corporation ------------- ---------------
Chase Securities Inc. ------------- ---------------
Total 6,000,000 900,000
============= ===============
</TABLE>
<PAGE>
SCHEDULE B
[list of shareholders subject to Section 4(i)]
<PAGE>
EXHIBIT I
[Form of Lock-Up Agreement]
________ __, 2000
SG Cowen Securities Corporation
Chase Securities Inc.
As Representatives of the
Several Underwriters
c/o SG Cowen Securities Corporation
Financial Square
New York, New York 10005
Re: Gemini Ordinary Shares
Ladies and Gentlemen:
In order to induce SG Cowen Securities Corporation ("SG Cowen") and Chase
Securities Inc. (together with SG Cowen, the "Representatives"), to enter into a
certain underwriting agreement with Gemini Genomics plc, a company organized
under the laws of England and Wales (the "Company"), with respect to the public
offering (the "Offering") of American depositary shares ("ADSs") of the Company
representing the Company's Ordinary Shares, (pound)0.05 nominal value ("Ordinary
Shares", and collectively with the ADSs, "Equity Securities"), the undersigned
hereby agrees that for a period of 180 days following the date of the final
prospectus (the "Final Prospectus") filed by the Company with the Securities and
Exchange Commission in connection with the Offering, the undersigned will not,
without the prior written consent of SG Cowen, directly or indirectly, offer,
sell, assign, transfer, pledge, contract to sell, grant any contract, option,
right or warrant to purchase, purchase any option to sell, or otherwise transfer
or dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition, transfer or purchase by any
person at any time in the future of) any Equity Securities or other share
capital of the Company (including, without limitation, Equity Securities which
may be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations promulgated under the Securities Act of 1933, as the same
may be amended or supplemented from time to time (such equity securities, the
"Beneficially Owned Securities")) or securities convertible or exercisable or
exchangeable for any such securities, or sell or grant options, rights or
warrants with respect to any such securities or enter into any swap or similar
agreement that transfers, in whole or in part, the economic risk of ownership of
any such securities, whether any of the foregoing transactions is to be settled
by delivery of any such securities, in cash or otherwise.
Anything contained herein to the contrary notwithstanding, any person to
whom Equity Securities or Beneficially Owned Securities are transferred from the
undersigned shall be bound by the terms of this Agreement and shall agree in
writing to be so bound.
<PAGE>
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the 180 day period following the date of the Final Prospectus, any
and all rights, if any, to request or demand registration pursuant to the
Securities Act of any Equity Securities that are registered in the name of the
undersigned or that are Beneficially Owned Securities. In order to enable the
aforesaid covenants to be enforced, the undersigned hereby consents to the
placing of legends and/or stop-transfer orders with the transfer agent of the
Equity Securities with respect to any such Equity Securities or Beneficially
Owned Securities.
[Signatory]
By:___________________________
Name:
Title:
