<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1997
REGISTRATION NO. 333-23423
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
EMISPHERE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
DELAWARE 13-3306985
<S> <C>
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
15 SKYLINE DRIVE
HAWTHORNE, NEW YORK 10532
(914) 347-2220
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
MICHAEL M. GOLDBERG, M.D.
C/O EMISPHERE TECHNOLOGIES, INC.
15 SKYLINE DRIVE
HAWTHORNE, NEW YORK 10532
(914) 347-2220
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
<TABLE>
<S> <C> <C>
EDWIN S. MAYNARD, ESQ. M. WARREN BROWNE, ESQ. C. DAVID GOLDMAN, ESQ.
PAUL,WEISS, RIFKIND, WHARTON & GARRISON 25 FIVE PONDS DRIVE MCDERMOTT, WILL & EMERY
1285 AVENUE OF THE AMERICAS WACCABUC, NEW YORK 10597 50 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10019-6064 NEW YORK, NEW YORK 10020-1605
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [X]
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<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with the
offering described in this Registration Statement. The Company has agreed to
pay all of the costs and expenses of this offering.
<TABLE>
<S> <C>
SEC Registration Fee............................................. $ 17,915
National Association of Securities Dealers, Inc. Filing Fee...... 6,412
Nasdaq National Market Listing Fee............................... 17,500
Printing and Engraving Costs..................................... 75,000
Legal Fees and Expenses.......................................... 400,000
Accounting Fees and Expenses..................................... 100,000
Miscellaneous.................................................... 8,173
--------
Total............................................................ $625,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no cause to believe his conduct was
unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted
in any of the capacities set forth above, against expenses actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine that despite the adjudication of liability, such
person is fairly and reasonably entitled to be indemnified for such expenses
which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith, that
indemnification provided for by Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
II-1
<PAGE>
Section 102(b)(7) of the General Corporation Law provides that a corporation
in its original certificate of incorporation or an amendment thereto validly
approved by stockholders may eliminate or limit personal liability of members
of its board of directors or governing body for breach of a director's
fiduciary duty. However, no such provision may eliminate or limit the
liability of a director for breaching his duty of loyalty, failing to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission,
for breach of fiduciary duty. The Company's Restated Certificate of
Incorporation contains such a provision.
The Company's Certificate of Incorporation and By-laws provide that the
Company shall indemnify officers, directors, employees and agents of the
Company, to the full extent permitted by and in the manner permissible under
the laws of the State of Delaware. The Certificate of Incorporation and By-
Laws also permit the Board of Directors to authorize the Company to purchase
and maintain insurance against any liability asserted against any director,
officer, employee or agent of the Company arising out of his capacity as such.
The Company has obtained such directors' and officers' insurance insuring,
subject to certain conditions, its directors and officers against certain
liabilities.
The Underwriting Agreement provides for indemnification by the Underwriters
of the Company, its directors and officers, and persons who control the
Company within the meaning of Section 15 of the Securities Act for certain
liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1** Form of Underwriting Agreement.
4.1 Certificate of Incorporation of the Company, as amended (incorporated
by reference to Exhibit 3(i) and Exhibit 3(ii) of Registration
Statement on Form S-18, Registration No. 33-25759, Exhibit 3.1.2 of
Registration Statement on Form S-1, Registration No. 33-40061, and
Exhibit 3.1 of Registration Statement on Form S-3, Registration No. 33-
53676).
4.2 By-laws of the Company (incorporated by reference to Exhibit 3.1 to the
Quarterly Report on Form 10-Q/A (Amendment No. 1) for the quarter ended
January 31, 1997 (File No. 1-10615).
4.3 Rights Agreement, dated as of February 23, 1996, by and between
Emisphere Technologies, Inc. and Continental Stock Transfer & Trust
Company, as Rights Agent (incorporated by reference to Exhibit 4 of the
Company's Current Report on Form 8-K dated March 5, 1996).
5.1** Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1** Consent of Paul, Weiss, Rifkind, Wharton & Garrison (contained in
Exhibit 5.1).
23.2** Consent of Darby & Darby, P.C.
23.3* Consent of Coopers & Lybrand L.L.P.
24.1* Power of Attorney.
</TABLE>
- --------
* Previously filed.
** Filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Securities Act") each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") that is incorporated by reference in the registration
statement shall be deemed to be
II-2
<PAGE>
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City and State of New York on the 18th day of April, 1997.
Emisphere Technologies, Inc.
/s/ Michael M. Goldberg
By___________________________________
Michael M. Goldberg, M.D. Chairman
of the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on April 18, 1997.
SIGNATURE TITLES DATE
/s/ Michael M. Goldberg Chairman of the
- ------------------------------------- Board and Chief April 18, 1997
MICHAEL M. GOLDBERG, M.D. Executive Officer
(Principal
Executive Officer)
Controller and Chief
Accounting Officer April 18, 1997
(Principal
Financial and
* Accounting Officer)
- -------------------------------------
JOSEPH D. POVEROMO
President, Chief
* Scientific Officer April 18, 1997
- ------------------------------------- and Director
SAM J. MILSTEIN, PH.D.
Director
* April 18, 1997
- -------------------------------------
PETER BARTON HUTT, ESQ.
Director
* April 18, 1997
- -------------------------------------
JERE E. GOYAN, PH.D.
II-4
<PAGE>
SIGNATURE TITLES DATE
Director
* April 18, 1997
- -------------------------------------
MARK I. GREENE, M.D., PH.D.
Director
* April 18, 1997
- -------------------------------------
HOWARD M. PACK
Director
* April 18, 1997
- -------------------------------------
JOSEPH R. ROBINSON, PH.D.
* By: /s/ Michael M. Goldberg
- -------------------------------------
MICHAEL M. GOLDBERG ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
1.1** Form of Underwriting Agreement.
4.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3(i) and Exhibit 3(ii) of
Registration Statement on Form S-18, Registration No. 33-25759,
Exhibit 3.1.2 of Registration Statement on Form S-1, Registration
No. 33-40061, and Exhibit 3.1 of Registration Statement on Form S-
3, Registration No. 33-53676).
4.2 By-laws of the Company (incorporated by reference to Exhibit 3.1
to the Quarterly Report on Form 10-Q/A (Amendment No. 1) for the
quarter ended January 31, 1997 (File No. 1-10615).
4.3 Rights Agreement, dated as of February 23, 1996, by and between
Emisphere Technologies, Inc. and Continental Stock Transfer &
Trust Company, as Rights Agent (incorporated by reference to
Exhibit 4 of the Company's Current Report on Form 8-K dated March
5, 1996).
5.1** Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1** Consent of Paul, Weiss, Rifkind, Wharton & Garrison (contained in
Exhibit 5.1).
23.2** Consent of Darby & Darby, P.C.
23.3* Consent of Coopers & Lybrand L.L.P.
24.1* Power of Attorney.
</TABLE>
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* Previously filed.
** Filed herewith.
<PAGE>
EXHIBIT 1.1
Draft dated April 14, 1997
EMISPHERE TECHNOLOGIES, INC.
COMMON STOCK, PAR VALUE $.01 PER SHARE
-------------------------------------------
Underwriting Agreement
----------------------
April ____, 1997
Goldman, Sachs & Co.,
Robertson, Stephens & Company LLC
Genesis Merchant Group Securities LLC
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Emisphere Technologies, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 2,500,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 375,000 additional shares (the "Optional Shares") of Common
Stock, par value $.01 per share ("Stock") of the Company (the Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to Section
2 hereof being collectively called the "Shares").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-23423) (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 but including all documents
incorporated by reference in the prospectus contained therein, for each of the
other Underwriters, have been declared effective by the Commission in such form
other than a registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective upon
filing; no other document with respect to the Initial Registration Statement or
document incorporated by reference therein 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, to the knowledge of the Company, 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 of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
<PAGE>
under the Act to be part of the Initial Registration Statement at the time it
was declared effective and (ii) the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of the
registration statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereinafter becomes effective, each as
amended at the time such part of the registration statement became effective, is
hereinafter collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement);
(b) No order preventing or suspending the use of any Preliminary Prospectus
has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman, Sachs &
Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, conforms or, as the case may
be, will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all
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<PAGE>
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto, and
as of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through Goldman, Sachs & Co. expressly for use therein;
(e) The Company has not sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with 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, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock of the Company (other than in
connection with the Company's employee benefit plans described in the Prospectus
or incorporated therein by reference) or any material adverse change in, or any
development known to the Company involving a prospective material adverse change
in or affecting, the business, management, financial condition, stockholders'
equity or results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company has good and marketable title in fee simple to all material
real property and good and marketable title to all material personal property
owned by it, in each case free and clear of all liens, encumbrances and defects
or such as do not materially affect the value or marketability of such property
and do not interfere with the use made and proposed to be made of such property
by the Company; and any material real property and buildings held under lease by
the Company are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company;
(g) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and corporate authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business in, and is in good standing under
the laws of, each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued in accordance with all applicable
federal and state securities laws, rules and regulations, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus or incorporated therein by reference. The Prospectus accurately sets
forth all outstanding options and warrants (whether or not exercisable) to
purchase shares of capital stock of the Company (or other instruments
convertible or exchangeable into such shares) ("Options"), as well as all
relevant terms thereof as of the date of the Prospectus;
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<PAGE>
(i) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable and will conform to the description of the Stock
contained in the Prospectus or incorporated therein by reference;
(j) The issue and sale of the Shares by the Company and the compliance by
the Company with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated: have been duly authorized and approved by
all requisite actions of the Company; 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 is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject
(all of the foregoing constituting a "Conflict"); will not result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties (all of the foregoing constituting a "Violation"); and do not require
the consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body or other third party (all of
the foregoing constituting a "Consent") for the issue and sale of the Shares or
the consummation by the Company of the transactions contemplated by this
Agreement, except (i) the registration under the Act of the Shares, and (ii)
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters except for any such
Conflict, Violation or Consent that would not, or if not obtained (in the case
of a Consent) would not, individually or in the aggregate, result in a material
adverse effect on the business, operations, financial condition, stockholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect") or that would not, individually or in the
aggregate, impair the Company's ability to consummate the transactions herein
contemplated;
(k) (i) The Company is not in violation of its Certificate of
Incorporation or By-laws, and (ii) the Company is not in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other material agreement or instrument to which it is a party or by
which it or any of its properties may be bound, including, without limitation,
the Elan Agreements and the Lilly Agreement, each as hereinafter defined, which
default could have a Material Adverse Effect;
(l) The statements set forth in the Prospectus under the captions ["RISK
FACTORS -Need for Regulatory Approval of Products," "BUSINESS - Collaboration
Agreements, Patents and Governmental Regulation," and "Underwriting,"] insofar
as they purport to describe the provisions of the laws and documents referred to
therein, are accurate and fair in all material respects;
(m) Except for those legal or governmental proceedings described in the
Prospectus, there are no legal or governmental proceedings pending to which the
Company is a party or of which any property of the Company is the subject which,
if determined adversely to the Company, would individually or in the aggregate
have a Material Adverse Effect; and, to the
4
<PAGE>
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(n) The Company is not and, after giving effect to the offering and sale of
the Shares, will not be an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(o) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes;
(p) Coopers & Lybrand L.L.P., who have certified certain financial
statements of the Company, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(q) The financial statements and schedules of the Company and the related
notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of the
Company as of the respective dates of such financial statements and schedules,
and the results of operations and changes in financial position of the Company
for the respective periods covered thereby. Such statements, schedules and
related notes have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis and (where audited) as
certified by the independent accountants named in subsection 1(p). No other
financial statements or schedules are required to be included in the
Registration Statement. The selected financial data set forth in the Prospectus
under the captions "Capitalization" and "Selected Consolidated Financial Data"
fairly present the information set forth therein on the basis stated in
Registration Statement;
(r) There are no contracts or other documents required to be described in
the Registration Statement or to be filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder which have not been described or filed as required. The contracts so
described in the Prospectus are in full force and effect on the date hereof;
neither the Company nor, to the Company's knowledge, any other party is in
breach of or default under any of such contracts, where such breach or default,
individually or in the aggregate, would be material to the Company; and the
descriptions of such contracts in the Registration Statements are accurate and
fair in all material respects;
(s) Except as disclosed in the Prospectus, the Company has sufficient and
requisite trademarks, trade names, patent rights, copyrights and licenses and
approvals ("Intellectual Property Rights") to conduct its business as now
conducted and as contemplated (as described in the Prospectus); without limiting
the generality of the foregoing, the Company is unaware of any limitations with
respect to its Intellectual Property Rights not described in the Prospectus that
would prevent it from (i) performing its obligations under the Elan Agreements
and the Elan Joint Venture, as hereinafter defined, (ii) performing its
obligations under the Lilly Agreement, and (iii) engaging in its contemplated
activities, as described in the Prospectus; the Company does not have any
Intellectual Property Rights material to the operations of the Company's
business except as described in the Prospectus and such Intellectual Property
Rights will not expire earlier than as disclosed in the Prospectus; the
Company has no knowledge of any material infringement by it of Intellectual
Property Rights of others and, to the Company's knowledge, there are no
outstanding claims against the
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Company regarding Intellectual Property Rights or other infringement which, if
adversely determined, could have a Material Adverse Effect; and the Company has
no knowledge of any material infringement by others of its Intellectual Property
Rights;
(t) The Company has taken usual and customary measures to protect the
secrecy, confidentiality and value of all of its intellectual property
(including the Intellectual Property Rights) in all material respects;
(u) Except as otherwise disclosed in the Prospectus, the Company now holds,
and at each Time of Delivery (as defined in Section 4 hereof) will hold, all
licenses, certificates, approvals and permits from all state, United States,
foreign and other regulatory authorities, including but not limited to the
United States Food and Drug Administration (the "FDA") and any foreign
regulatory authorities performing functions similar to those performed by the
FDA (together, "FDA Permits"), that are material to the conduct of the business
of the Company (as such business is currently conducted), except for such
licenses, certificates, approvals and permits the failure of which to hold would
not have a Material Adverse Effect, all of which are valid and in full force and
effect (and there is no proceeding pending or, to the knowledge of the Company,
threatened which may cause any such license, certificate, approval or permit to
be withdrawn, canceled, suspended or not renewed). The Company is unaware of
any reason not described in the Prospectus why it (or, as applicable, the Elan
Joint Venture) will not be granted all such FDA Permits as may be necessary in
order for it (or, as applicable, the Elan Joint Venture), to engage in the
commercialization of the products as contemplated by the Elan Joint Venture
within a reasonable time period. The Company is not in violation of any law,
order, rule, regulation, writ, injunction or decree of any court or governmental
agency or body, applicable to the investigation of new drugs in humans and
animals, including, but not limited to, those promulgated by the FDA. All of
the descriptions in the Registration Statement and Prospectus of the legal and
governmental proceedings by or before the FDA or any foreign, state or local
government body exercising comparable authority are accurate and fair;
(v) The Company has filed on a timely basis all necessary federal, state
and foreign income, franchise and other tax returns and has paid or made
provision for all taxes shown thereon as due, except where the failure to file
such returns would not have a Material Adverse Effect. The Company has no
knowledge of any tax deficiency that has been or might be asserted against the
Company that might have a material adverse effect on the Company's business;
(w) The Company maintains insurance of the types and in the amounts which
it believes are reasonably adequate for its business, all of which insurance is
in full force and effect;
(x) The clinical studies and tests (including, but without limitation the
human and animal clinical trials) conducted by the Company or in which the
Company has participated that are described in the Registration Statement and
Prospectus or the results of which are referred to in the Registration Statement
and Prospectus, and, to the Company's knowledge, such studies and tests that
were conducted on behalf of the Company, were and, if still pending, are being
conducted in all material respects (i) in accordance with the protocols,
procedures and controls for such studies and tests of new medical devices or
biologic products, as the case may be, and (ii) in accordance with all
applicable laws, rules and regulations; the descriptions of the results
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of such studies and tests contained in the Registration Statement and Prospectus
are accurate, complete and fair, and the Company has no knowledge of any other
studies or tests, the results of which call into question the results described
or referred to in the Registration Statement and Prospectus; and the Company has
not received any notices or correspondence from the FDA or any other
governmental agency requiring the termination, suspension or modification of any
studies or tests conducted by, or on behalf of, the Company or in which the
Company has participated that are described in the Registration Statement and
Prospectus or the results of which are referred to in the Registration Statement
and Prospectus that would cause the Company to change the descriptions in the
Registration Statement or Prospectus;
(y) The Company is in material compliance with, and has received no notice
alleging non-compliance with, all applicable foreign, United States, state and
local laws, rules, regulations, treaties, statutes and codes of any and all
governmental authorities;
(z) Without limiting the generality of (y) above, the Company: (i) is in
material compliance with any and all applicable foreign, United States, state
and local laws, rules, regulations, treaties, statutes and codes promulgated by
any and all governmental authorities relating to the protection of human health
and safety, the environment or toxic substances or wastes, pollutants or
contaminates ("Environmental Laws"); (ii) is in material compliance with any and
all applicable foreign, United States, state and local laws, rules, regulations,
treaties, statutes and codes promulgated by any and all governmental authorities
(including pursuant to the Occupational Health and Safety Act) relating to the
protection of human health and safety in the workplace ("Occupational Laws" and
together with Environmental Laws, "Environmental and Occupational Laws"); (iii)
has received all material permits, licenses or other approvals required of it
under applicable Environmental and Occupational Laws to conduct its business as
currently conducted; and (iv) is in compliance with all terms and conditions of
any such permit, license or approval, except with respect to all such cases
where such noncompliance with the applicable Environmental and Occupational Laws
or failure to receive or act in compliance with the required permit, license or
other approval would not, individually or in the aggregate, have a Material
Adverse Effect. No action, proceeding, revocation proceeding, writ, injunction
or claim is pending or, to the Company's knowledge, threatened against the
Company relating to Environmental and Occupational Laws or to the Company's
activities involving Hazardous Materials. The term "Hazardous Materials" as
used in this Agreement means any material or substance that: (i) is prohibited
or regulated by any environmental law, rule, regulation, order, treaty, statute
or code promulgated by any governmental authority, or any amendment or
modification thereto; or (ii) has been designated or regulated by any
governmental authority as radioactive, toxic, hazardous or otherwise a danger to
health, reproduction or the environment;
(aa) The Company is not or was not engaged in the generation, use,
manufacture, transportation or storage of any Hazardous Materials on any of the
Company's properties or former properties, except where such use, manufacture,
transportation or storage is or was in material compliance with Environmental
Laws. No Hazardous Materials have been treated or disposed of by the Company on
any of the Company's properties or on properties formerly owned or leased by the
Company during the time of such ownership or lease, except in compliance with
Environmental Laws. No spills, discharges, releases, deposits, emplacements,
leaks or disposal of any Hazardous Materials have occurred on or under, or have
emanated from, any of the Company's properties or former properties for which
the cost of remediation would have a material adverse effect on the Company's
business;
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(bb) The Company has not at any time during the last five years, (i) made
any unlawful contribution to any candidate for foreign office, or failed to
disclose fully any contribution in violation of law, or (ii) made any payment to
any federal or state governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof;
(cc) Neither the Company nor, to its knowledge, any of its officers,
directors or affiliates has taken, and at the Time of Delivery, neither the
Company, nor, to its knowledge, any of its officers, directors or affiliates
will have taken, directly or indirectly, any action that has constituted, or
might reasonably be expected to constitute, the stabilization or manipulation of
the price of sale or resale of the Shares;
(dd) (i) The execution, delivery and performance by the Company of the
Joint Venture Agreement with Elan Corporation PLC ("Elan") and Ebbisham Limited
and of all agreements to which the Company is a party as contemplated thereby
(the "Elan Agreements") and the Company's participation in the joint venture
contemplated by the Elan Agreements (the "Elan Joint Venture") (A) were duly
authorized and approved by all requisite actions of the Company, and (B) will
not constitute or give rise to a Conflict or Violation or require a Consent; and
(ii) The execution, delivery and performance by the Company of the
Research Collaboration and Option Agreement (the "Lilly Agreement") with Eli
Lilly and Company ("Lilly") (C) were duly authorized and approved by all
requisite actions of the Company, and (D) will not constitute or give rise to a
Conflict or Violation or require a Consent;
(ee) The Company has not violated any Federal, state or local law relating
to discrimination in the hiring, promotion or pay of employees nor any
applicable wage or hour laws, nor any provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA") or the rules and regulations promulgated
thereunder. There is (A) no significant unfair labor practice complaint pending
against the Company or threatened against it before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or threatened against it,
(B) no labor dispute in which the Company is involved nor is any labor dispute
imminent, other than routine disciplinary and grievance matters, and (C) no
union representation question existing with respect to the employees of the
Company and no union organizing activities are taking place, except (with
respect to any matter specified in clause (A), (B) or (C) above, singly or in
the aggregate) such as would not have a material adverse effect on the Company;
and
(ff) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (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 the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $_____________, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 375,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Goldman, Sachs & Co., through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of immediately
available funds. The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York City time, on _____________ ___, 1997 or such other
time and date as Goldman, Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
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(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7[___] hereof, will be delivered at the offices of
McDermott, Will & Emery, 50 Rockefeller Plaza, New York, New york 10020 (the
"Closing Location"), and the Shares will be delivered at the Designated Office,
all at Times of Delivery. A meeting will be held at the Closing Location at
______ p.m., New York City time, on the New York Business Day next preceding
each Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a Prospectus is required in connection with the offering or sale of
the Shares; to advise you, 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 Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may reasonably request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction or to take any other action which would subject it
to the service of process in suits or taxation, other than as to matters and
transactions relating to the offer and sale of the Shares in each jurisdiction
in which the Shares have been qualified as provided above;
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(c) Prior to 12:00 noon, New York City time, on the New York Business Day
next succeeding the date of this Agreement, to furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Act or the Exchange Act, to notify you and upon your request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
(e) To make generally available to its security holders as soon as
practicable, but i n any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and
including the date 90 days after the date of the Prospectus, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee benefit plans
existing on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your prior
written consent;
(g) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and to furnish to any
stockholder who so requests, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal quarter
ending
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after the effective date of the Registration Statement), consolidated summary
financial information of the Company for such quarter in reasonable detail;
(h) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company are consolidated in reports furnished to its stockholders generally
or to the Commission); and (ii) such additional information as you may from time
to time reasonably request concerning the business and financial condition of
the Company (A) that is available without undue expense, and (B) that is
available to the public without confidentiality restrictions;
(i) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(j) To use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations National Market
System ("NASDAQ"); and
(k) To deliver agreements, in form satisfactory to Goldman, Sachs & Co, of
all directors and executive officers of the Company and of Elan providing that
each of such persons will not offer, sell, contract to sell, grant any option to
purchase, make any short sale or otherwise dispose of any shares of the Stock of
the Company during the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus without the
prior written consent of Goldman, Sachs & Co.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses of the Company in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NASDAQ;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of
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any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) McDermott, Will & Emery, counsel for the Underwriters, shall have
furnished to you such opinion or opinions (in the form attached as Annex II(a)
hereto), dated such Time of Delivery, with respect to the matters covered in
paragraphs [______________] of subsection (c) below as well as such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Paul, Weiss, Rifkind, Wharton & Garrison, counsel for the Company,
shall have furnished to you their written opinion (in the form attached as Annex
II(b) hereto), dated such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
[(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) Based solely on . . . [language to be provided by PW] The
Company has an authorized capitalization as set forth in the Prospectus;
based solely on . . . [language to be provided by PW] there are no Options
other than as set forth in the Prospectus; the description in the
Prospectus of the Options is accurate and fair; all of the issued shares of
capital stock of the Company (including the Shares being delivered at their
respective Time of Delivery) have been duly authorized and validly issued
and, upon payment therefor in accordance with the terms of this Agreement,
will be fully paid and non-assessable; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) [Based solely on such counsel's review of certificates from
public officials that will be identified in such opinion, the Company has
been duly qualified as a foreign
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corporation for the transaction of business in, and is in good standing
under the laws of, each jurisdiction (other than the state of its
incorporation) in which it owns or leases properties or conducts any
business so as to require such qualification or is subject to no material
liability or disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the opinion
in this clause (A) upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company, provided that such
counsel shall state that they believe that both you and they are justified
in relying upon such opinions and certificates), and (B) certificates of
the Company setting forth the nature of the Company's activities outside of
the state of its incorporation;]
(iv) To such counsel's knowledge and except as described in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company is a party or of which any property of the Company is the
subject which, if determined adversely to the Company, would reasonably be
expected individually or in the aggregate to have a Material Adverse Effect
on the Company; and, to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(v) This Agreement has been duly authorized, executed and delivered by
th e Company;
(vi) The issuance and sale of the Shares being delivered at each Time
of Delivery by the Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument listed on a schedule attached to such opinion (the
"Identified Agreements") to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company
is subject, nor will such action result in any violation of the provisions
of (A) the Certificate of Incorporation or By-laws of the Company, (B) any
Applicable Law or (C) those court orders, decrees and judgments
specifically identified by the Company and set forth on a schedule to such
opinion, except where such violation would not have a Material Adverse
Effect. For the purposes of this opinion, the term "Applicable Law" shall
mean the General Corporation Law of the State of Delaware and those laws,
rules and regulations of the United States of America and the State of New
York, in each case which in such counsel's experience are normally
applicable to the transactions of the type contemplated by this
Underwriting Agreement.
(vii) Based upon such counsel's review of Applicable Law but without
having made any special investigation concerning any other laws, rules or
regulations, no consent, approval, authorization or order of, or filing,
registration or qualification with any Governmental Authorities (the
"Governmental Approvals"), which has not been obtained, taken or made
(other than pursuant to any state securities laws or foreign securities
laws as to which such counsel need not express any opinion) is required for
the performance by the Company of its obligations under this Underwriting
Agreement. This opinion relates only to Governmental Approvals required
under Applicable Law. For purposes
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of this opinion, the term "Governmental Authorities" means any executive,
legislative, judicial, administrative or regulatory body of the State of
New York, the State of Delaware or the United States of America;
(viii) To such counsel's knowledge, the Company is not in violation
of its Certificate of Incorporation or By-laws or in default in the
performance or observance of any Identified Agreement;
(ix) The statements set forth in the Prospectus under the caption
"BUSINESS -Collaboration Agreements" insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(x) The Company is not an "investment company" as such term is defined
in the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and nothing has come to such counsel's attention
which has caused such counsel to believe that any of such documents, when
such documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents which
were filed under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading;
(xii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; such counsel shall also state that they
have participated in the preparation of the Registration Statement and are
familiar with the documents incorporated by reference therein, and although
such counsel have not undertaken to investigate or verify independently,
and do not assume responsibility for, the accuracy or completeness of the
statements contained therein, other than as explicitly stated in subsection
(ix) of this section 7(c), based upon such participation (and relying as to
materiality to a certain extent on officers and employees of the Company),
no facts have come to such counsel's attention which has caused such
counsel to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need
15
<PAGE>
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Such counsel
shall state that they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be incorporated by reference into the Prospectus or required
to be described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required;
(xiii) The Elan Agreements and the Company's participation in the Elan
Joint Venture were duly authorized, executed and delivered, and approved by
all requisite actions of the Company and to such counsel's knowledge will
not constitute or give rise to a Conflict or Violation or require a
Consent;
(xiv) The Lilly Agreement was duly authorized, executed and delivered, and
approved by all requisite actions of the Company and to such counsel's
knowledge will not constitute or give rise to a Conflict or Violation or
require a Consent; and
(xv) Such counsel shall state that they have been orally advised by the
Commission that the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings therefor are pending or have been initiated
or threatened by the Commission.]
(d) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any post-
effective amendment to the Registration Statement filed subsequent to the date
of this Agreement and also at each Time of Delivery, Coopers & Lybrand L.L.P.
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
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(e)(i) The Company shall not have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus there shall
not have been any material change in the capital stock of the Company (including
the issuance of any Options other than Options pursuant to the Company's
employee stock purchase plan) or any material change that resulted in, or any
development that would result in, a Material Adverse Effect, 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 Goldman, Sachs & Co.
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
Clause (iv) in the judgment of Goldman, Sachs & Co. makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(g) The Shares to be sold at such Time of Delivery shall have been duly
listed for quotation on NASDAQ;
(h) The Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from Elan, each executive officer and director
of the Company, substantially to the effect set forth in Subsection 5(k) hereof
in form and substance satisfactory to you;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement;
(j) Darby & Darby, P.C., outside intellectual property counsel to the
Company, shall have furnished to you such opinion or opinions (in the form
attached as Annex II(c) hereto), dated such Time of Delivery, with respect to
the matters covered in paragraph 1(s) above as well as such other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(k) The Company shall have furnished or caused to be furnished to you at
such Ti me of Delivery certificates of officers of the Company reasonably
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time
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<PAGE>
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (e) of this Section and as to such
other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsections. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the
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<PAGE>
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party. If an indemnifying party has agreed to assume the defense of any claim
against an indemnified party, the indemnified party shall provide the
indemnifying party with prior written notice of any proposed settlement and
shall not complete such settlement without the prior consent of the indemnifying
party; provided, however, that, as a condition to the withholding of any such
consent by the indemnifying party, the indemnifying party must irrevocably agree
to indemnify the indemnified party in respect of such underlying claim and the
indemnified party must be satisfied that the indemnifying party has the
resources with which to satisfy any such claim.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares sold under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares 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 on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or
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<PAGE>
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company shall be entitled to a further period of thirty-
six hours within which to procure another party or other parties satisfactory to
you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such
20
<PAGE>
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
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<PAGE>
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
EMISPHERE TECHNOLOGIES, INC.
By:___________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Robertson, Stephens & Company LLC
Genesis Merchant Group Securities LLC
By:_______________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
23
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SCHEDULE 1
UNDERWRITER TOTAL NUMBER NUMBER OF
OF OPTIONAL SHARES TO
FIRM SHARES TO BE PURCHASED IF
BE PURCHASED MAXIMUM OPTION
EXERCISED
Goldman, Sachs & Co.
Robertson, Stephens & Company LLC
Genesis Merchant Group Securities LLC
Total
24
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EXHIBIT 5.1
[LETTERHEAD OF PAUL, WEISS, RIFKIND, WHARTON & GARRISON]
April 18, 1997
Emisphere Technologies, Inc.
15 Skyline Drive
Hawthorne, New York 10532
Re: Emisphere Technologies, Inc.
Registration Statement on Form S-3
Registration No. 333-23423
Ladies and Gentlemen:
In connection with the above-captioned Registration Statement on Form S-3
(the "Registration Statement"), filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations promulgated thereunder (the "Rules"), we have been
requested by Emisphere Technologies, Inc., a Delaware corporation (the
"Company"), to furnish our opinion as to the legality of the 2,875,000 shares
(the " Shares") offered by the Company (including up to 375,000 shares
issuable by the Company upon exercise of the Underwriters' over-allotment
option) of its Common Stock, par value $.01 per share (the "Common Stock")
registered under the Registration Statement.
In connection with the furnishing of this opinion, we have reviewed the
Registration Statement (including all amendments thereto), the form of the
Underwriting Agreement included as Exhibit 1.1 to the Registration Statement
(the "Underwriting Agreement"), originals, or copies certified or otherwise
identified to our satisfaction, of the Company's Certificate of Incorporation
and By-laws, as amended to date, and records of certain of the Company's
corporate proceedings. We have also examined and relied upon representations
as to factual matters contained in certificates of officers of the Company,
and have made such other investigations of fact and law and have examined and
relied upon the originals, or copies certified or otherwise identified to our
satisfaction, of such other certificates, records, agreements, instruments and
documents, as in our judgment are necessary or appropriate to render the
opinion expressed below.
In rendering the opinions set forth below, we have assumed, without
independent investigation, the genuineness of all signatures, the legal
capacity of all individuals who have executed any of the documents reviewed by
us, the authenticity of all documents submitted to us as originals, the
conformity to the original documents of all documents submitted to us as
certified, photocopied, reproduced or conformed copies, the authenticity of
all such latter documents and that the statements regarding matters of fact in
the certificates, records, agreements, instruments and documents that we have
examined are accurate and complete.
Based on the foregoing, and subject to the assumptions, exceptions and
qualifications set forth herein, we are of the opinion that the Shares, when
issued, delivered and paid for as contemplated in the Registration Statement
and the Underwriting Agreement will be duly authorized, validly issued, fully
paid and nonassessable.
Our opinion expressed above is limited to the General Corporation Law of the
State of Delaware. Please be advised that no member of this firm is admitted
to practice in the State of Delaware. Our opinion is rendered only with
respect to the laws, and the rules, regulations and orders thereunder, which
are currently in effect.
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<PAGE>
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to our name under the caption "Legal Matters" in
the prospectus included in the Registration Statement. In giving this consent,
we do not thereby agree that we come within the category of persons whose
consent is required by the Act or the Rules.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton &
Garrison
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON
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EXHIBIT 23.2
CONSENT OF PATENT COUNSEL
We consent to the reference made to us under the caption "Experts" in the
Prospectus included in this Registration Statement.
Darby & Darby, P.C.
By: /s/ S. Peter Ludwig
--------------------
S. PETER LUDWIG
New York, New York
March 31, 1997
