EXHIBIT 1.1
2,000,000 Shares
MYRIAD GENETICS, INC.
Common Stock
$0.01 par value
UNDERWRITING AGREEMENT
___________, 2000
________________, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
CIBC World Market Corp.
Xxxxxx Xxxxxxx Xxxxxx Gull
Xxxx Xxxxxxxx Xxxxxxx
as Representatives of the several Underwriters
named in Schedule I hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Myriad Genetics, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), an aggregate of 2,000,000 shares of its common stock ($0.01 per
share par value) (the "Firm Shares").
The Company also proposes to issue and sell to the several Underwriters not
more than an additional 300,000 shares of its common stock ($0.01 per share par
value) (the "Additional Shares"), if and to the extent that you, as managers of
the offering, shall have determined to exercise, on behalf of the Underwriters,
the right to purchase such shares of common stock granted to the Underwriters in
Article II hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares." The shares of common stock, ($0.01
per share par value), of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-______), including a
prospectus, relating to the Shares. The registration statement as amended at
the time it becomes effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Securities Act of 1933, as amended (the "Securities Act"), is
hereinafter referred to as the "Registration Statement;" the prospectus in the
form first used to confirm sales of Shares is hereinafter referred to as the
"Prospectus." If the Company has filed an abbreviated registration statement to
register a portion of the Shares pursuant to Rule 462(b) under the Securities
Act (the "Rule 000 Xxxxxxxxxxxx Xxxxxxxxx,") then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. All references to the Registration Statement and the
Prospectus shall include all documents incorporated therein by reference.
I.
The Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
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,
(ii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply (as of the date of such amendment or
supplement, as applicable) in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain (as of the date of such amendment or supplement, as applicable) any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and
warranties set forth in this paragraph (b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter, either directly or indirectly, through you expressly for use
therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(e) The Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
subsidiaries, taken as a whole, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not interfere with
the use made and proposed to
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be made of such property by the Company and its subsidiaries, taken as a whole;
and any real property and buildings held under lease by the Company and its
subsidiaries are held by it 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 and its
subsidiaries, taken as a whole, except as described in the Prospectus.
(f) The authorized capital stock of the Company conforms to the
description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of the
Shares to be sold by the Company have been duly authorized and are validly
issued, fully paid and non-assessable. Except as set forth in the Prospectus,
the Company does not have outstanding any options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible securities
or obligations, other than non-material amounts of options granted pursuant to
the Company's 1992 Employee, Director and Consultant Stock Option Plan and share
purchase rights pursuant to the Company's Employee Stock Purchase Plan, each of
which plan is described in the Prospectus. All outstanding shares of capital
stock and options and other rights to acquire capital stock of the Company have
been issued in compliance with the registration and qualification provisions of
all applicable securities laws and were not issued in violation of any
preemptive rights, rights of first refusal or other similar rights.
(h) The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Shares will not be subject to any
preemptive rights, rights of first refusal or similar rights.
(i) This Agreement has been duly authorized, executed and delivered by the
Company.
(j) Each document, if any, filed or to be filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in the Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder.
(k) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not contravene any
provision of applicable law or the certificate of incorporation or bylaws of the
Company, or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Shares.
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(l) There has not occurred any material adverse change, or any development
that could reasonably be expected to cause a material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereof, subsequent to
the date of this Agreement).
(m) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (ii) the Company and its subsidiaries have not purchased any of its
outstanding capital stock, other than pursuant to its right of repurchase for
unvested shares under the Company's and its subsidiaries' stock option plans,
nor declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock other than ordinary and customary dividends; and (iii) there
has not been any material change in the capital stock, short-term debt or long-
term debt of the Company and its subsidiaries, except in each case as described
in or contemplated by the Prospectus.
(n) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(o) The Company and its subsidiaries have all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and
have made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use their properties and assets and
to conduct their businesses in the manner described in the Prospectus, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder.
(q) The Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, 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.
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(r) There is no owner of any securities of the Company who has any rights,
not effectively satisfied or waived, to require registration of any shares of
capital stock of the Company in connection with the filing of the Registration
Statement or the sale of any shares thereunder.
(s) The Company and its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; the
Company and its subsidiaries have not been refused any insurance coverage sought
or applied for; and the Company and its subsidiaries have no reason to believe
that they will not be able to renew their existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue their businesses at a cost that would not
materially and adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, except as described in or contemplated by the Prospectus.
(t) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (collectively,
"Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(u) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(v) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed by them in
connection with the businesses now operated by them, and, except as described in
the Prospectus, the Company and its subsidiaries have not received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(w) The Company and its subsidiaries possess all consents, approvals,
orders, certificates, authorizations and permits issued by all appropriate
federal, state or foreign regulatory authorities
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necessary to conduct their businesses in the manner described in the Prospectus,
and the Company and its subsidiaries have not received any notice of proceedings
related to the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
(x) 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.
(y) No material labor dispute with the employees of the Company and its
subsidiaries exist, except as described in the Prospectus, or, to the best
knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors that could result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company.
(z) Approximately ___________ shares outstanding as of the Effective Date
are subject to valid, binding and enforceable agreements (collectively, the
"Lock-up Agreements") that restrict the holders thereof from (1) offering,
pledging, selling, contracting to sell, selling any option or contract to
purchase, purchasing any option or contract to sell, granting any option, right,
or warrant for the purchase, lending or otherwise transferring or disposing of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or (2) entering into any
swap or similar agreement that transfers, in whole or in part, the economic risk
of ownership of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, otherwise than (a) the sale of any Shares to
the Underwriters pursuant to this Agreement or (b) transactions relating to
shares of Common Stock or other securities acquired in open market transactions
after the completion of the public offering, and further that such holders will
not make any demand for or exercise any right with respect to, the registration
of any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock prior to the expiration of 90 days after the date
of the Prospectus.
(aa) As of the date the Registration Statement becomes effective, the
Shares to be issued by the Company will be authorized for quotation on The
Nasdaq Stock Market upon official notice of issuance.
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(bb) The Company and its subsidiaries have complied with all provisions of
Section 517. 075, Florida Statutes (Chapter 92-198, Laws of Florida), relating
to issuers doing business with Cuba.
(cc) The Company has reviewed its operations to evaluate the extent to
which the business or operations of the Company were affected by the Year 2000
Problem (that is, any significant risk that computer hardware or software
applications used by the Company would not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000); as a result
of such review, (i) the Company has no reason to believe, and does not believe,
that (A) there are any issues related to the Company's address of the Year 2000
Problem that are of a character required to be described or referred to in the
Registration Statement or Prospectus which have not been accurately described in
the Registration Statement or Prospectus and (B) the Year 2000 Problem had or
will have a material adverse effect on the condition, financial or otherwise, or
on the earnings, business or operations of the Company or resulted or will
result in any material loss or interference with the business or operations of
the Company; and (ii) the Company reasonably believes, after inquiry as
described in the prospectus, that the suppliers, vendors, customers or other
material third parties used or served by the Company addressed the Year 2000
Problem in a timely manner, except to the extent that a failure to have
addressed the Year 2000 Problem by any supplier, vendor, customer or material
third party would not have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business or operations of the Company.
II.
The Company hereby agrees to sell to the Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from the Company the respective number of Firm
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) set forth in Schedule I hereto opposite the name of such Underwriter
at $_______ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company hereby agrees to
issue and sell to the Underwriters the Additional Shares, and the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to
300,000 Additional Shares at the Purchase Price. If you, on behalf of the
Underwriters, elect to exercise such option, you shall so notify the Company in
writing not later than thirty (30) days after the date of this Agreement, which
notice shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Such date
may be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor later than ten (10) business days after the date of such
notice. Additional Shares may be purchased as provided in Article IV hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject
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to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or similar arrangement that transfers,
in whole or in part, the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise, other than (i) the Shares to be sold hereunder and as otherwise
disclosed in the Prospectus (ii) any shares of Common Stock sold by the Company
upon the exercise of an option or warrant or other right to acquire shares of
the Company or the conversion of a security outstanding on the date hereof,
(iii) any options or other rights to purchase or acquire any shares of Common
Stock or any shares of Common Stock issuable upon exercise of such options or
other rights granted in connection with any compensatory arrangement with a
director, officer, employee, consultant or advisor, so long as each person or
entity acquiring shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock who, as of the date hereof, is
otherwise subject to a Lock-Up Agreement is subject to a Lock-up Agreement with
respect to such shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock.
III.
The Company is advised by you that the Underwriters propose to make a
public offering of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Company
is further advised by you that the Shares are to be offered to the public
initially at $_______ per share (the "Public Offering Price") and to certain
dealers selected by you at a price that represents a concession not in excess of
$______ per share under the public offering price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of $0.10 per
share, to any Underwriter or to certain other dealers.
IV.
Payment for the Firm Shares shall be made to the Company in Federal or
other funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters, at 10:00 a.m.,
New York City time, on ___________, 2000, or at such other time on the same or
such other date, in any event not later than five (5) days after the date of
this Agreement, as shall be designated in writing by you. The time and date of
each such payment are hereinafter referred to as the Closing Date.
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Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters, at
10:00 a.m., New York City time, on or at such other time on the same or such
other date, in any event not later than thirty (30) days after the date of this
Agreement as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Option Closing Date".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
V.
The obligations of the Company and the several obligations of the
Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than 6:30 p.m. (New York City
time) the date hereof.
The several obligations of the Underwriters hereunder are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company from that
set forth in the Registration Statement that (exclusive of any amendments or
supplements thereto subsequent to the date hereof), in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company, to the effect set forth in
clause (a) above, and to the effect that the representations and
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warranties of the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officers signing and delivering such certificate may rely upon the best
of their knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus under the
caption "Description of Capital Stock" and the authorized capital stock of the
Company is as set forth under the caption "Capitalization";
(iv) the shares of Common Stock outstanding prior to the
issuance of the Shares to be sold by the Company have been duly authorized and
validly issued, [to such counsel's knowledge, are non-assessable and], fully
paid;
(v) all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(vi) the Shares have been duly authorized, and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued
and non-assessable, and to such counsel's knowledge, fully paid, and the
issuance of such Shares will not be subject to any preemptive rights arising
under the Company's Certificate of Incorporation or the Delaware General
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Corporate Law, or, to its knowledge, rights of first refusal or similar rights
that entitle or will entitle any person to acquire any shares of capital stock
of the Company upon the issuance and sale of the Shares by the Company;
(vii) the Company has corporate power and authority to enter
into this Agreement and to issue, sell and deliver the Shares to the
Underwriters. This Agreement has been duly authorized, executed and delivered by
the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law (other than applicable State
securities or Blue Sky laws, as to which such counsel need not express any
opinion) or the certificate of incorporation or bylaws of the Company or, to
such counsel's knowledge, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is filed as an exhibit to the
Registration Statement, or, to such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court entered against the Company or
any of its subsidiaries, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except as
have been obtained under the Securities Act or the Exchange Act and except such
as may be required by the securities or Blue Sky laws of the various states and
jurisdictions in connection with the offer and sale of the Shares;
(ix) the information (1) in the Prospectus under the captions
"Business --Strategic Alliances" describing each of the agreements with Bayer
Corporation, Xxx Xxxxx and Company, X. Xxxxxxx - XxXxxxx, Ltd., Monsanto
Company, Novartis Agricultural Discovery Institute, Inc., Novartis Corporation,
Schering AG, and Schering - Plough Corporation, "Description of Capital Stock,"
and "Underwriters" (to the extent of the description of this Agreement) and (2)
in the Registration Statement in Item 15; in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly summarize the matters referred to therein to the
extent required by the Act and rules and regulations promulgated thereunder;
(x) after due inquiry, such counsel does not know of any
legal, regulatory or governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject that is required to be
described in the Registration Statement or the Prospectus and is not so
described or of any contracts or other documents that are required to be filed
as exhibits to the Registration Statement that are not filed as required;
(xi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
11
(xii) to the knowledge of such counsel, there is no legal or
beneficial owner of any securities of the Company who has any rights, not
effectively satisfied or waived, to require registration of any shares of
capital stock of the Company in connection with the filing of the Registration
Statement;
(xiii) the Company and its subsidiaries are in compliance with
any and all applicable Environmental Laws, have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole;
(xiv) (1) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus
(except for the financial statements and schedules, related notes, other
financial data and statistical data, as to which such counsel need not express
any opinion) complied when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder; (2) the Registration Statement has become effective under the
Securities Act, no stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Securities Act and nothing has
come to such counsel's attention to lead it to believe that such proceedings are
contemplated; and (3) any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Securities Act has been made in the
manner and within the time period required by such Rule 424(b);
(xv) the Shares to be sold under this Agreement to the
Underwriters are duly authorized for quotation on The Nasdaq Stock Market; and
(xvi) in addition, such counsel shall state that during the
course of the preparation of the Registration Statement, they participated in
conferences with you and with officers and other representatives of the Company,
its counsel and its independent public accountants at which the contents of the
Registration Statement and Prospectus were discussed. While they have not
independently verified the statements made in the Registration Statement and
Prospectus, except as set forth in paragraph (ii) above, on the basis of the
foregoing, no facts have come to their attention that have caused them to
believe that the Registration Statement, as of the time it became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date or the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that they
express no comment with respect to the financial statements and schedules,
related notes, other financial data and statistical data derived therefrom
included in the Registration Statement and Prospectus. Such
12
counsel shall also state their opinion that the Registration Statement and
Prospectus (except for financial statements and schedules included therein and
financial and statistical data derived therefrom, as to which such counsel need
not express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(d) You shall have received on the Closing Date an opinion of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to in
subparagraphs (iv), the last sentence of subparagraph (v), (vii) (but only as to
the statements in the Prospectus under "Description of Capital Stock"), stating
that such counsel has read the first five paragraphs of the portion of the
Registration Statement and the Prospectus entitled "Underwriters" (the
"Underwriter Portion"), and (xiii) of paragraph (c) above.
With respect to subparagraph (xiii) of paragraph (c) above, Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, may state that their belief is based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification, except as specified.
The opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
described in paragraph (c) above shall be rendered to the Representatives at the
request of the Company, and shall so state therein.
(e) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from KPMG LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement and the Prospectus.
(f) The Underwriters shall have received an opinion, dated such Closing
Date, of Rothwell, Figg, Ernst & Xxxx, Professional Corporation, patent counsel
for the Company, to the effect set forth in Exhibit A attached hereto.
---------
(g) The Lock-up Agreements between the Underwriters and certain
stockholders, officers and directors of the Company relating to sales of shares
of Common Stock of the Company or any securities convertible into or exercisable
or exchangeable for such Common Stock, delivered to Xxxxxx Xxxxxxx & Co.
Incorporated on or before the date hereof, shall be in full force and effect on
the Closing Date.
(h) The shares of Common Stock of the Company shall have received approval
for listing, upon official notice of issuance, on The Nasdaq Stock Market.
13
(i) The Company shall have complied with the provisions of paragraph (a)
of Section VI hereof with respect to the furnishing of Prospectuses on the
business day next succeeding the date of this Agreement in such quantities as
you may reasonably request.
All the agreements, opinions, certificates and letters mentioned above or
elsewhere in this Agreement shall be deemed in compliance with the provisions
hereof only if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel for the Underwriters, shall be reasonably satisfied that they comply in
form and scope.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares, other
matters related to the issuance of the Additional Shares and an opinion or
opinions of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. in form and
substance satisfactory to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, counsel for the Underwriters.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, four (4) signed copies of the
Registration Statement (including exhibits thereto and documents incorporated by
reference) and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto but including documents
incorporated by reference) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. (New York City time) on the business day following
the date of this Agreement and during the period mentioned in paragraph 6(c)
below, as many copies of the Prospectus, any documents incorporated therein by
reference, and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request. The terms "supplement" and "amendment"
or "amend" as used in this Agreement shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities Exchange Act
of 1934, as amended, that are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
you reasonably object, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering of
the Shares as in the opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, counsel for the Underwriters, the Prospectus is required by law to
be delivered in connection with sales by an Underwriter or dealer, any event
shall occur or condition exist as a result of which it is necessary to
14
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with any review of the
offering of the Shares by the National Association of Securities Dealers, Inc.;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or take any action that would have
the effect of submitting the Company to such jurisdiction.
(e) To make generally available to the Company's security holders and to
you as soon as practicable an earnings statement covering the twelve-month
period ending March 31, 2001 that satisfies the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder.
(f) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its stockholders and (ii) all reports, financial statements and proxy
or information statements filed by the Company with the Commission or any
national securities exchange.
(g) The Company will use its best efforts to obtain and maintain in effect
the quotation of the Shares on The Nasdaq Stock Market and will take all
necessary steps to cause the Shares to be included on The Nasdaq Stock Market as
promptly as practicable and to maintain such inclusion for a period of three
years after the date hereof or until such earlier date as the Shares shall be
listed for regular trading privileges on The Nasdaq Stock Market or another
national securities exchange.
(h) The Company will comply with all registration, filing and reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which may from time to time be applicable to the Company.
(i) The Company will comply with all provisions of all undertakings
contained in the Registration Statement.
15
(j) Prior to the Closing Date or the Option Closing Date, as the case may
be, the Company will not, directly or indirectly, issue any press release or
other communication directly or indirectly and will not hold any press
conference with respect to the Company, or its financial condition, results of
operations, business, properties, assets or prospects, or this offering, without
your prior written consent (which shall not be unreasonably withheld); provided,
however, that such prior written consent will not be necessary if (i) such press
release would be issued in the ordinary course of the Company's business and
does not relate to the market for the Company's Common Stock or (ii) (A) Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. informs the Company that such press
release or press conference is legally advisable and (B) the Company uses
reasonable efforts to consult with you in regard to the proposed press release
or press conference.
(k) The Company agrees: (i) to issue stop-transfer instructions to the
transfer agent for the Common Stock with respect to any transaction or
contemplated transaction that would constitute a breach of or default under any
applicable Lock-up Agreement, and (ii) upon written request of Xxxxxx Xxxxxxx &
Co. Incorporated, to release from the Lock-up Agreements those shares of Common
Stock held by those holders set forth in such request. In addition, except with
the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated, the Company
agrees (i) not to amend or terminate, or waive any right under, any Lock-up
Agreement or take any other action that would directly or indirectly have the
same effect as an amendment or termination, or waiver of any right under, any
Lock-up Agreement that would permit any holder of shares of Common Stock, or
securities convertible into or exercisable or exchangeable for Common Stock
subject to a Lock-Up Agreement, to offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
make any short sale of, grant any option, right, or warrant for the purchase of,
enter into any swap or similar agreement that transfers, in whole or in part,
the economic risk of ownership of Common Stock, or otherwise transfer or dispose
of, directly or indirectly, any of such shares of Common Stock or other
securities prior to the expiration of 90 days after the date of the Prospectus,
(ii) not to release any such stop-transfer instruction as described in (i) above
prior to the expiration of 90 days after the date of the Prospectus, and (iii)
not to consent to any sale, short sale, grant of an option for the purchase of,
or other disposition or transfer of shares of Common Stock, or securities
convertible into or exercisable or exchangeable for Common Stock, subject to a
Lock-up Agreement.
(l) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of
16
printing or producing any Blue Sky or Legal Investment memorandum in connection
with the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and sale
under state securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all costs and expenses incident to
listing the Shares on The Nasdaq Stock Market, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show and (ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section and Section VII, below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Shares by them and any advertising
expenses connected with any offers they may make.
VII.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or is under common control with, or is
controlled by, any Underwriter from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement as of the effective
date and any closing date as defined in Section 4 or any amendment thereof (as
of the date of such amendment or supplement, as applicable), any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto (as of the date of such
amendment or supplement, as applicable)), or caused by any omission or alleged
omission to state therein (as of the effective date or closing date or, if
applicable, the date of such amendment or supplement) a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter either directly or indirectly through you expressly for use
therein; provided, however, that the foregoing indemnity agreement with respect
-------- -------
to any
17
preliminary prospectus shall not inure to the benefit of any Underwriter or any
person controlling or controlled by such Underwriter, from whom the person
asserting any such losses, claims, damages or liabilities purchased Shares, if a
copy of the Prospectus (as then amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, the directors of the Company, the officers of the Company
who sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter either directly or indirectly through
you expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to any of the two preceding paragraphs, such person (the "Indemnified
Party") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Party") in writing and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel in writing or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in respect of the legal expenses of any
Indemnified Party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified
Parties, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and such
18
control persons of Underwriters, such firm shall be designated in writing by
Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party
shall have requested an Indemnifying Party to reimburse the Indemnified Party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Party of the aforesaid request and (ii) such Indemnifying Party
shall not have reimbursed the Indemnified Party in accordance with such request
prior to the date of such settlement. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such proceeding.
To the extent the indemnification provided for in the first or second
paragraphs of this Article VII is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Party under such paragraph, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Party or parties on the one hand
and the Indemnified Party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Indemnifying Party or parties on the one hand and of the Indemnified Party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, 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 hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate public offering
price of the Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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 or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this
19
Article VII are several in proportion to the respective number of Shares they
have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Article VII were determined by pro
---
rata allocation (even if the Underwriters were treated as one entity for such
----
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 Article VII, 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 that 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Article VII are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
The indemnity and contribution provisions contained in this Article VII and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, or the Company, its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Shares.
VIII.
This Agreement shall be subject to termination by notice given by you to
the Company, if (a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
20
IX.
This Agreement shall become effective upon execution and delivery hereof by
the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
or they have agreed to purchase hereunder on such date, and the aggregate number
of Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided, however, that in no event shall the number of Shares
--------
that any Underwriter has agreed to purchase pursuant to Article II be increased
pursuant to this Article IX by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either you or the Company shall have the right
to postpone the Closing Date or the Option Closing Date, as the case may be, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
21
X.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
XI.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
22
Very truly yours,
Myriad Genetics, Inc.
By ______________________________________
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
Accepted, ______________, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
CIBC World Market Corp.
Xxxxxx Xxxxxxx Xxxxxx Gull
Xxxx Xxxxxxxx Xxxxxxx
Acting severally on behalf of themselves and the
several Underwriters named herein.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By ______________________________________
Xxxxx X. Xxxx
Vice President
Schedule I
Name Number of Shares
---------------------------------------- ---------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated
CIBC World Market Corp.
Xxxxxx Xxxxxxx Xxxxxx Gull
Xxxx Xxxxxxxx Xxxxxxx
EXHIBIT A
Opinion of Patent Counsel Referred
To in Section 5(f)
(i) Such counsel represents the Company in certain matters relating to
intellectual property, including patents, trade secrets and certain trademark
matters;
(ii) Such counsel is familiar with the Company's technology, and in
particular its BRACAnalysis and CardiaRisk products and therapeutic products and
diagnostic tests under development, used by the Company in its business and has
read the portions of the Registration Statement and the Prospectus entitled
"Risk Factors--We are uncertain of our ability to protect our proprietary
technology" and "Business--Patents and Proprietary Rights" (collectively, the
"Intellectual Property Portion");
(iii) The Intellectual Property Portion contains accurate descriptions of
the Company's patent applications, issued and allowed patents, and patents
licensed to it and fairly summarizes the legal matters, documents and
proceedings relating thereto;
(iv) Such counsel has reviewed the Company's patent applications filed
in the U.S. and outside the U.S. (the "Applications"), which Applications are
set forth on Schedule I attached hereto, and based upon such review, a review of
the prior art references made known to counsel and discussions with Company
scientific personnel, such counsel is aware of no valid United States or foreign
patent that is or would be infringed by the activities of the Company in the
manufacture, use or sale of any proposed product, drug or other material as
described in the Prospectus or made or used according to the Applications;
(v) The Applications have been properly prepared and filed on behalf of
the Company, and are being diligently pursued by the Company; the inventions
described in the Applications are assigned or licensed to the Company; to such
counsel's knowledge, no other entity or individual has any right or claim in any
of the inventions, Applications, or any patent to be issued therefrom, except as
noted in the Prospectus under "Business--Strategic Alliances" and "--Patents and
Proprietary Rights" and each of the Applications discloses patentable subject
matter;
(vi) Such counsel is aware of no pending or threatened judicial or
governmental proceedings relating to patents or proprietary information to which
the Company is a party or of which any property of the Company is subject and
such counsel is not aware of any pending or threatened action, suit or claim by
others that the Company is infringing or otherwise violating any patent rights
or others, nor is such counsel aware of any rights of third parties to any of
the Company's inventions described in the Applications, issued, approved or
licensed patents which could reasonably be expected materially to affect the
ability of the Company to conduct its business
as described in the Prospectus, including the commercialization of its
BRACAnalysis and CardiaRisk products and diagnostic tests and therapeutic
products currently under development; and
(vii) Such counsel has no reason to believe that the information
contained in the Intellectual Property Portion of the Registration Statement or
the Prospectus at the time it became effective contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that, at
such Closing Date the information contained in the Intellectual Property Portion
of the Prospectus or any amendment or supplement to the Intellectual Property
Portion of the Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
