Exhibit 10.11
PLACEMENT AGREEMENT
THIS PLACEMENT AGREEMENT dated March 20, 1997 among MONTGOMERY
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Issuer"), NEOSE TECHNOLOGIES, INC.
(the "Borrower") and CORESTATES CAPITAL MARKETS, A DIVISION OF CORESTATES BANK,
N.A., as Placement Agent (the "Placement Agent").
A. The Issuer is issuing its Federally Taxable Variable Rate
Demand Revenue Bonds (Neose Technologies, Inc. Project) Series B of 1997 in the
aggregate principal amount of $8,400,000 (the "Bonds") pursuant to a Trust
Indenture, dated as of March 1, 1997 (the "Indenture") between the Issuer and
Dauphin Deposit Bank and Trust Company, as trustee (the "Trustee").
B. Pursuant to a Loan Agreement, dated as of March 1, 1997
between the Issuer and the Borrower (the "Loan Agreement"), the proceeds of the
Bonds, together with other funds available for the purpose, are being applied to
finance the costs of: (i) the acquisition, improvement and equipping of a
facility which will be used for the development and pilot production of complex
carbohydrates for research and development relating to a variety of health care
applications located at 102 Witmer Road, Horsham, Pennsylvania; and (ii) payment
of a portion of the costs of issuance of the Bonds (the "Project") to be owned
by the Borrower. Under the Loan Agreement, the Borrower is obligated to make
payments to the Trustee in amounts and at the times sufficient to pay, when due,
the principal of, premium, if any, on and interest on the Bonds.
C. The Bonds will initially be issued in the Weekly Mode and
bear interest at a Weekly Rate as provided in the Indenture (such terms being
used herein as defined in the Indenture). Subject to and upon compliance with
the terms of the Bonds and the Indenture, the Bonds may be tendered for purchase
upon demand of the owners thereof. The Bonds will also be subject to mandatory
tender for purchase under certain circumstances as provided in the Indenture.
The Issuer has appointed CoreStates Capital Markets, a division of CoreStates
Bank, N.A. as remarketing agent (including any successor in such capacity, the
"Remarketing Agent") under the Indenture for the purpose of remarketing Bonds
which have been optionally tendered for purchase pursuant to the terms and
conditions set forth in the Indenture. In connection with such appointment, the
Borrower and the Remarketing Agent have entered into a Remarketing Agreement,
dated as of March 1, 1997 (the "Remarketing Agreement").
D. The Bonds are being issued pursuant to one or more
resolutions adopted by the Issuer on March 5, 1997 (the "Resolution") and are
secured by an assignment by the Issuer under the Indenture of: (i) the Issuer's
rights under the Loan Agreement to receive loan payments corresponding in time
and amounts to the payments of principal of, premium, if any, on and interest on
the Bonds; and (ii) the Issuer's rights to all moneys and investments held from
time to time in the Project Fund and the Bond Fund created under the Indenture.
E. In order to facilitate the placement of the Bonds, the
Borrower will cause to be delivered to the Trustee an Irrevocable Letter of
Credit (the "Letter of Credit") issued by CoreStates Bank, N.A. (as issuer of
the Letter of Credit, the "Bank") under which the Trustee will be authorized to
draw up to: (1) an amount equal to the principal of the Bonds outstanding: (i)
to pay the principal of the Bonds when due at maturity or upon redemption or
acceleration; or (ii) to pay the portion of the purchase price of Bonds tendered
for purchase pursuant to the Indenture corresponding to the principal of such
Bonds to the extent remarketing proceeds are not available for such purpose;
plus (2) an amount equal to 46 days accrued interest on the Bonds at a maximum
rate of 15% per annum: (i) to pay interest on the Bonds when due; or (ii) to pay
the portion of the purchase price of Bonds tendered for purchase pursuant to the
Indenture corresponding to the accrued interest, if any, on such Bonds to the
extent remarketing proceeds are not available for such purpose. The Letter of
Credit is being issued pursuant to a Participation and Reimbursement Agreement,
dated as of March 1, 1997 (the "Participating Bank Agreement") between the Bank
and Jefferson Bank (the "Participating Bank"), pursuant to which the Bank will
be entitled, among other things, to reimbursement, with interest, for all draws
under the Letter of Credit.
F. To provide for the execution of the Participating Bank
Agreement, the Borrower will enter into a Reimbursement Agreement, dated as of
March 1, 1997 (the "Reimbursement Agreement") with the Participating Bank
pursuant to which the Borrower will be obligated to reimburse the Participating
Bank, with interest for all draws under the Letter of Credit and/or all advances
made by the Participating Bank to the Bank under the Participating Bank
Agreement. The Borrower's obligations to the Participating Bank under the
Reimbursement Agreement will be evidenced by a Note, dated as of March 1, 1997
delivered by the Borrower to the Participating Bank (the "Note") and secured by:
(i) a mortgage, assignment of leases and security agreement delivered by the
Borrower to the Participating Bank covering the Project; (ii) an assignment of
leases by the Borrower to the Participating Bank with respect to all leases of
the Project; and (iii) a security agreement between the Borrower and the
Participating Bank creating a first lien security interest in, among other
things, the assets of the Borrower and the equipment included in the Project.
The Participating Bank's obligations under the Participating Bank Agreement and
the Borrower's obligations under the Reimbursement Agreement are secured by a
Pledge, Security and Indemnification Agreement, dated as of March 1, 1997 (the
"Pledge Agreement") between the Borrower, the Participating Bank and the Bank.
G. The Bonds are limited obligations of the Issuer and are
payable solely from payments made by the Borrower under the Loan Agreement, from
drawings under the Letter of Credit and from other moneys available for such
purpose under and in accordance with the Indenture. Neither the general credit
nor the taxing power of the Issuer, the Commonwealth of Pennsylvania, the County
of Montgomery, Pennsylvania or any political subdivision thereof is pledged to
the payment of the Bonds, and the Bonds shall not be or be deemed to be a
general obligation of the Issuer or an obligation of the Commonwealth of
Pennsylvania, the County of Montgomery, Pennsylvania or any political
subdivision thereof. The Issuer has no taxing power.
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H. It is intended that, in reliance on the support of the
Bonds by the Letter of Credit issued by the Bank, the Placement Agent may
arrange for the placement and sale of the Bonds without registration under the
Securities Act of 1933, as amended (the "Securities Act").
I. The Borrower acknowledges that the Issuer is selling the
Bonds and the Placement Agent is arranging for the placement and sale of the
Bonds to certain purchasers (the "Purchasers") in reliance on the
representations, covenants and indemnities set forth herein. A Preliminary
Placement Memorandum, dated March 10, 1997 (including the Appendices thereto,
the "Preliminary Placement Memorandum") has been prepared for use in such
placement and has been delivered to the parties to this Placement Agreement. The
Preliminary Placement Memorandum as it may be amended or supplemented as of the
Closing Date (hereinafter defined) is herein referred to as the "Final Placement
Memorandum", and the Preliminary Placement Memorandum and the Final Placement
Memorandum are herein referred to collectively as the "Placement Memorandum".
J. The professional advisors referred to in this Placement
Agreement are:
Bond Counsel: Ballard Spahr Andrews & Ingersoll
Philadelphia, Pennsylvania
Issuer Counsel: McGrory Wentz Fernandez & O'Hara
Norristown, Pennsylvania
Borrower Ballard Spahr Andrews & Ingersoll
Counsel: Philadelphia, Pennsylvania
Bank Counsel: Pepper, Hamilton & Scheetz LLP
Philadelphia, Pennsylvania
Participating Kassab Archbold & O'Brien, L.L.P.
Bank Counsel: Media, Pennsylvania 19063
Placement Kassab Archbold & O'Brien, L.L.P.
Agent Counsel: Media, Pennsylvania 19063
K. The Issuer and the Borrower desire the Placement Agent to
arrange for the sale of the Bonds to the Purchasers or other initial purchasers,
according to the terms and subject to the conditions set forth or described
herein.
NOW, THEREFORE, in consideration of the covenants herein
contained and intending to be legally bound, the Issuer, the Borrower and the
Placement Agent hereby agree as follows:
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Section 1. Definitions. Capitalized terms and phrases used and
defined herein shall have the meanings set forth herein. Capitalized terms and
phrases used and not defined herein shall have the respective meanings ascribed
to such terms in the Indenture, unless different meanings clearly appear from
the context.
Section 2. Placement of Bonds. The Placement Agent will use
its best efforts to arrange for the placement of the Bonds with the Purchasers,
at a purchase price of 100% of the principal amount of the Bonds, payable in
immediately available funds on the date (the "Closing Date") of closing
("Closing") of the original issuance and initial authentication of the Bonds.
The Closing Date shall be March 20, 1997 or such other date as is mutually
agreed upon by the Issuer, the Borrower, the Bank, the Participating Bank and
the Placement Agent.
Section 3. Fees. The Borrower shall pay to the Placement Agent
on the Closing Date a fee equal to one percent (1.0%) of the principal amount of
Bonds placed by it with the Purchasers, plus to or for the account of the
Placement Agent any and all reasonable expenses of the Placement Agent.
Section 4. Representations of Issuer. In consideration of the
foregoing and to induce the Placement Agent to privately place the Bonds, the
Issuer hereby represents to the Placement Agent and for the benefit of the
Purchasers that:
(a) The Issuer is a public instrumentality and a body
corporate and politic of the Commonwealth of Pennsylvania organized and
existing under the Pennsylvania Economic Development Financing Law, Act
of August 23, 1967, P.L. 251, as amended and supplemented (the "Act").
Under the Act and by the Resolution, the Issuer has full power and
authority to undertake the financing of the Project, to execute,
deliver and perform its obligations under the Indenture, the Loan
Agreement and this Placement Agreement, and to issue and deliver the
Bonds.
(b) The Issuer has duly adopted the Resolution and
authorized the Indenture, the Loan Agreement and this Placement
Agreement, the issuance of the Bonds, and all actions necessary or
appropriate to carry out the same, and each such document, when
executed and delivered by the Issuer, will constitute the legal, valid
and binding obligation of the Issuer, enforceable against the Issuer in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by bankruptcy, insolvency or other similar laws
or equitable principles affecting the enforcement of creditors' rights
generally.
(c) The execution, delivery and performance by the
Issuer of the Indenture, the Loan Agreement and this Placement
Agreement, and the issuance and delivery of the Bonds, will not violate
or conflict with any provision of the Constitution of the Commonwealth
of Pennsylvania or any applicable statute (including the Act), or any
rule, order, regulation, judgment or decree of any court, agency or
other governmental or administrative board or body to which the Issuer
is subject, or conflict with or constitute a
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breach of or a default under any indenture, mortgage, deed of trust,
agreement or other instrument to which the Issuer is a party or by
which it is bound.
(d) No additional or further approval, consent or
authorization of any governmental or public body or agency not already
obtained prior to the issuance of the Bonds is required to be obtained
by the Issuer in connection with the entering into and performing of
its obligations under the Indenture, the Loan Agreement and this
Placement Agreement and the issuance and delivery of the Bonds.
(e) There is no action, suit, proceeding,
investigation or inquiry by or before any court, agency or other
governmental or administrative board or body pending or, to the
knowledge of the Issuer, threatened challenging or contesting the
powers of the Issuer, the authorization of any members, directors or
officers of the Issuer to act in their respective capacities, the
issuance of the Bonds, the validity or enforceability of the Indenture,
the Loan Agreement or this Placement Agreement, or the performance by
the Issuer of any of its obligations thereunder.
(f) The information under the caption "THE ISSUER" in
the Placement Memorandum is correct and complete, and the Issuer has
approved and authorized the use of the Placement Memorandum by the
Placement Agent.
The foregoing representations shall survive Closing.
Section 5. Representations of Borrower. In consideration of
the foregoing, to induce the Issuer to issue the Bonds and to induce the
Placement Agent to arrange for the private placement of the Bonds, the Borrower
hereby represents and warrants to the Issuer and the Placement Agent and for the
benefit of the Purchasers that:
(a) The Borrower is a corporation duly organized and
validly existing under the laws of the State of Delaware, qualified to
do business in the Commonwealth of Pennsylvania, with full power and
authority to undertake the financing of the Project as contemplated by
this Placement Agreement and the Placement Memorandum, to execute and
deliver the Loan Agreement, the Reimbursement Agreement, the Note, the
Pledge Agreement, the Remarketing Agreement, this Placement Agreement
and all other documents delivered by the Borrower in connection with
the financing of the Project and to perform its obligations thereunder.
(b) The Borrower has duly executed and delivered the
Loan Agreement, the Reimbursement Agreement, the Note, the Pledge
Agreement, the Remarketing Agreement, this Placement Agreement and all
other documents delivered by the Borrower in connection with the
financing of the Project, and to the best of the Borrower's knowledge,
no approval or other action by any governmental or administrative board
or body is required
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in connection with the execution, delivery or performance by the
Borrower of the same, except such as have been obtained.
(c) The execution and delivery by the Borrower of the
Loan Agreement, the Reimbursement Agreement, the Note, the Pledge
Agreement, the Remarketing Agreement, this Placement Agreement and all
other documents delivered by the Borrower in connection with the
financing of the Project, have been duly authorized by the Borrower,
and each such document, when executed and delivered by the Borrower, to
the best of the Borrower's knowledge, will constitute the legal, valid
and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except to the extent that the
enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws or equitable principles affecting the enforcement of
creditors' rights generally and rights to indemnity may be limited by
applicable law.
(d) To the best of the Borrower's knowledge, neither
the entering into nor the performance by the Borrower of the Loan
Agreement, the Reimbursement Agreement, the Note, the Pledge Agreement,
the Remarketing Agreement, this Placement Agreement or any other
document delivered by the Borrower in connection with the financing of
the Project will violate or conflict with any provision of any statute
or any rule, order, regulation, judgment or decree of any court, agency
or other governmental or administrative board or body to which the
Borrower is subject, or violate, conflict with or constitute a breach
of or default under any provision of any indenture, mortgage, deed of
trust, agreement or other instrument to which the Borrower is a party
or by which the Borrower or any of its properties is bound.
(e) To the best of the Borrower's knowledge, all
licenses, consents, approvals or authorizations of any federal, state
or local governmental agency required on the part of the Borrower to be
obtained in connection with the execution and delivery of the Loan
Agreement, the Reimbursement Agreement, the Note, the Pledge Agreement,
the Remarketing Agreement and this Placement Agreement, the performance
by the Borrower of its obligations thereunder and the Borrower's
consummation of the transactions contemplated thereby and by the
Placement Memorandum, have been duly obtained, and the Borrower has
complied with all applicable provisions of law requiring any
designation, declaration, filing, registration or qualification with
any governmental authority in connection therewith; it being understood
that the Borrower has obtained, or prior to the commencement of
acquisition, construction and/or equipping of each component of the
Project will obtain, all licenses, consents, approvals and
authorizations of any and all federal, state or local governmental
authorities required on the part of the Borrower to be obtained in
connection with the acquisition, construction and/or equipping of such
component of the Project, and that the Borrower has no reason to
believe that it will not be able to obtain, when required, all further
governmental licenses, consents, approvals and authorizations necessary
for the acquisition, construction, equipping and/or operation of the
Project as contemplated
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by the Loan Agreement and any and all other documents delivered by the
Borrower in connection with the financing of the Project.
(f) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public
board or body, pending or, to the knowledge of the Borrower, threatened
against the Borrower wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the financial condition of the
Borrower, the acquisition, construction and/or equipping of the
Project, the transactions contemplated by this Placement Agreement and
the Placement Memorandum, the validity or enforceability of the Loan
Agreement, the Reimbursement Agreement, the Note, the Pledge Agreement,
the Remarketing Agreement, this Placement Agreement or any other
document delivered by the Borrower in connection with the financing of
the Project or the existence or powers of the Borrower. There is no
existing violation by the Borrower of any applicable statute, rule,
order or regulation of any governmental body which could materially and
adversely affect the financial condition or operations of the Borrower
or the Project.
(g) The Preliminary Placement Memorandum is final as
of its date except for the omission of the ratings, the placement fee
and the issuance and delivery dates for the Bonds. The information set
forth in the Placement Memorandum under the caption "THE BORROWER" does
not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made not misleading. Furthermore,
nothing has come to the Borrower's attention that leads it to believe
that the Placement Memorandum (other than the information contained
therein under the caption "THE ISSUER" and in Appendix A thereto with
respect to which no representation is made) contains an untrue
statement of a material fact 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. The Borrower hereby
approves and authorizes the use of the Preliminary Placement Memorandum
and the Placement Memorandum by the Placement Agent.
The foregoing representations and warranties shall survive Closing.
Section 6. Covenants of Issuer. The Issuer covenants that:
(a) The Issuer will cooperate with the Placement
Agent in the qualification of the Bonds (and, if necessary, any other
security contemplated by this Placement Agreement and the Placement
Memorandum) for offering and sale in, and the determination of their
eligibility for investment under the laws of, such jurisdictions as the
Placement Agent shall designate, provided that the Issuer shall not be
required to qualify to do business or consent to service of process in
any state or jurisdiction other than the Commonwealth of Pennsylvania
and the Issuer's out-of-pocket costs shall be paid out of the Bond
proceeds or otherwise provided for.
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(b) The Issuer will refrain from taking any action,
with regard to which it may exercise control, that would result in the
loss of the exclusion of the interest on the Bonds from gross income
for federal income tax purposes.
Section 7. Covenants of Borrower. The Borrower covenants
that:
(a) The Borrower will provide to the Placement Agent
not later than March 20, 1997 the Final Placement Memorandum in such
quantity as the Placement Agent may reasonably request, and will use
its best efforts to amend the Final Placement Memorandum if and as
necessary so that it will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The Borrower will promptly notify the Placement
Agent of any material adverse change with respect to the financing of
the Project as contemplated by this Placement Agreement and the
Placement Memorandum or with respect to its business, properties or
financial condition, occurring before Closing which would require a
change in the Placement Memorandum in order to make the information
contained therein not misleading in connection with the placement of
the Bonds.
(c) The Borrower will cooperate with the Placement
Agent in the qualification of the Bonds (and, if necessary, any other
security contemplated by this Placement Agreement or the Placement
Memorandum) for offering and sale in, and the determination of their
eligibility for investment under the laws of, such jurisdictions as the
Placement Agent shall designate; provided that the Borrower shall not
be required to qualify to do business under the laws of any
jurisdiction where it is not now so qualified or to file any general
consent to service of process where it is not now so subject.
(d) The Borrower will refrain from taking any action,
or voluntarily permitting any action to be taken, that results in the
loss of the exclusion of the interest on the Bonds from gross income
for federal income tax purposes.
(e) To the extent permitted by applicable law, the
Borrower will indemnify, hold harmless, protect and defend the Issuer
and its members, directors, officers and employees, past, present and
future, and the Placement Agent and its directors, officers and
employees, past, present and future, and each person, if any, who
controls the Placement Agent within the meaning of Section 15 of the
Securities Act (hereinafter collectively called the "Indemnified
Parties"), against any and all losses, claims, damages, liabilities or
expenses whatsoever arising out of or based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Placement Memorandum under the caption "THE BORROWER" or in the
second paragraph under the caption "LITIGATION" or any omission or
alleged omission to state therein a material fact necessary to make the
statements made therein, in light of the circumstances under which they
were made, not misleading; or
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(ii) an allegation or determination that registration under the
Securities Act was required in connection with the issuance, placement
or sale of the Bonds or that the Indenture should have been qualified
under the Trust Indenture Act of 1939, as amended. In case any action
or claim shall be brought or asserted against one or more of the
Indemnified Parties with respect to the matters subject to the
indemnity provided by this Section, the Indemnified Party or Parties
shall promptly notify the Borrower in writing, and the Borrower shall
promptly assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party or Parties
and the payment of all expenses. Any one or more of the Indemnified
Parties shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Party or Parties unless: (i) the employment thereof has been
specifically authorized by the Borrower in writing; (ii) the Borrower
has failed to assume promptly the defense and employ counsel reasonably
satisfactory to such Indemnified Party or Parties; or (iii) the named
parties to any such action (including any impleaded parties) include
both such Indemnified Party or Parties and the Borrower, and such
Indemnified Party or Parties shall have been advised by counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Borrower (in
which case the Borrower shall not have the right to assume the defense
of such action on behalf of such Indemnified Party or Parties), in any
of which events such fees and expenses shall be borne by the Borrower.
The Borrower shall not be liable for any settlement of such action
effected without its consent (such consent not to be unreasonably
withheld), but if settled with the consent of the Borrower, or if there
is final judgement for the plaintiff in any such action with or without
consent, the Borrower agrees to indemnify and hold harmless the
Indemnified Party or Parties from and against any loss or liability by
reason of settlement or judgement. The indemnity provided in this
Section includes reimbursement for expenses incurred by the Indemnified
Parties in investigating the claim and in defending it in accordance
with the terms of this Section. The indemnity provided in this Section
shall survive Closing.
(f) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for
in paragraph (e) of this Section is due in accordance with its terms
but is for any reason unavailable or insufficient, the Borrower shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending the same) to which the Placement Agent
may be subject in such proportion so that the Borrower bears them in a
portion that considers the benefits received by the Borrower from the
placement of the Bonds, the Borrower's knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct or prevent any statement or
omission and any other equitable considerations appropriate under the
circumstances; and no person (including the Placement Agent) 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. For purposes of
this Section, each person who controls the Placement Agent within the
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meaning of Section 15 of the Securities Act shall have the same rights
as the Placement Agent. Any party entitled to contribution shall,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against the Borrower under this paragraph,
notify the Borrower, but the omission so to notify the Borrower shall
not relieve the Borrower from any other obligation it may have
hereunder or otherwise under this paragraph.
Section 8. Conditions of Closing. The placement of the Bonds
with the initial purchasers thereof is subject to fulfillment of the following
conditions at or before Closing:
(a) The Issuer's and the Borrower's representations
hereunder shall be true on and as of the Closing Date and shall be
confirmed by certificates at Closing.
(b) Neither the Issuer nor the Borrower shall have
defaulted in any of their covenants hereunder.
(c) The Placement Agent shall have received:
(i) original executed copies (or photocopies
thereof) of the Indenture, the Loan Agreement, the Letter of
Credit, the Participating Bank Agreement, the Reimbursement
Agreement, the Pledge Agreement, the Remarketing Agreement and
all other documents executed in connection therewith or
delivered at Closing;
(ii) opinions of Bond Counsel dated the Closing
Date with respect to the matters set forth in Exhibits A, B
and C attached hereto;
(iii) an opinion of Issuer Counsel dated the
Closing Date with respect to the matters set forth in Exhibit
D attached hereto;
(iv) an opinion or opinions of Borrower Counsel
dated the Closing Date with respect to the matters set forth
in Exhibit E attached hereto;
(v) an opinion of Bank Counsel dated the Closing
Date with respect to the matters set forth in Exhibit F
attached hereto;
(vi) a certificate of the Bank dated the Closing
Date in the form set forth in Exhibit G attached hereto; and
(vii) a certificate of the Borrower dated the
Closing Date with respect to the matters set forth in Exhibit
H attached hereto; and
(viii) a certificate of the Issuer dated the
Closing Date with respect to the matters set forth in Exhibit
I attached hereto.
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(d) At Closing there shall not have been any adverse
change with respect to the Project or the financing thereof as
contemplated by the Placement Memorandum and this Placement Agreement
or in the business, property or financial condition of the Borrower,
except as set forth in or contemplated by the Placement Memorandum,
which, in the judgment of the Placement Agent, is material and makes it
inadvisable to proceed with the placement and sale of the Bonds; and
the Placement Agent shall have received certificates that no material
adverse change has occurred or, if such a change has occurred, full
information with respect thereto.
(e) The Placement Agent shall receive such
documentation as it may reasonably request to evidence that the
Borrower has received all necessary state and local licenses and
approvals from applicable state and local governmental authorities
required on the part of the Borrower to be obtained in connection with
the execution and delivery of the Loan Agreement and this Placement
Agreement and the Borrower's consummation of the transactions
contemplated thereby and by the Placement Memorandum.
(f) The Placement Agent shall receive such additional
documentation as it may reasonably request to evidence compliance with
applicable law, the validity of the Resolutions, the Bonds, the
Indenture, the Loan Agreement, the Letter of Credit, the Participating
Bank Agreement, the Reimbursement Agreement, the Pledge Agreement, the
Remarketing Agreement, this Placement Agreement and all other documents
delivered by the Borrower in connection with the financing of the
Project and to demonstrate the status of the offering of the Bonds
under the Securities Act.
(g) The Bonds shall have been rated at least "Aa3" by
Moody's Investors Service.
Section 9. Events Permitting Placement Agent to Terminate. The
Placement Agent may terminate its obligation to arrange for the placement of the
Bonds at any time before Closing if any of the following occur:
(a) Legislative, executive or regulatory action or a
court decision which, in the judgment of the Placement Agent, casts
sufficient doubt on the legality of obligations such as the Bonds, or
the exclusion of interest on obligations such as the Bonds from gross
income for federal income tax purposes, so as to impair materially the
marketability thereof;
(b) Any action by the Securities and Exchange
Commission or a court which would require any registration under the
Securities Act, in connection with the issuance, placement or sale of
the Bonds, or qualification of the Indenture under the Trust Indenture
Act of 1939, as amended;
(c) Any general suspension of trading in securities
on the New York Stock Exchange or the establishment by the New York
Stock Exchange, by the Securities
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and Exchange Commission, by any federal or state agency or by the
decision of any court, of any limitation on prices for such trading, or
any outbreak of hostilities or occurrence of any other national or
international calamity or crisis, the effect of which on the financial
markets of the United States shall be such as to make it impracticable
for the Placement Agent to proceed with the placement of the Bonds; or
(d) Any event or condition which, in the judgment of
the Placement Agent, renders untrue or incorrect, in any material
respect as of the time to which the same purports to relate, the
information contained in the Placement Memorandum, or which requires
that information not reflected in the Placement Memorandum should be
reflected therein in order to make the statements and information
contained therein not misleading in any material respect as of such
time.
If the Placement Agent terminates its obligations to place the Bonds because any
of the conditions specified in Section 8 or 9 shall not have been fulfilled or
shall have occurred at or before the Closing, such termination shall not result
in any liability on the part of the Issuer or the Placement Agent.
Section 10. Notices and Other Actions. All notices, demands
and formal actions hereunder shall be in writing mailed, telegraphed or
delivered to:
The Issuer:
Montgomery County Industrial
Development Authority
#3 Stony Creek Office Center
Suite 320
151 West Marshall Street
Norristown, PA 19401
Attention: Executive Director
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The Borrower:
Neose Technologies, Inc.
102 Witmer Road
Horsham, PA 19044
Attention: President
With a copy to:
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Attention: Lynn Axelroth, Esquire
The Placement Agent:
CoreStates Capital Markets, a division of
CoreStates Bank, N.A.
600 Penn Street, Second Floor
Reading, PA 19602
Attention: Ms. Angel Helm
Senior Vice President
Section 11. Governing Law. This Placement Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
Section 12. Assignment; Successors and Assigns. The rights and
obligations of the Borrower and the Issuer hereunder shall not be assignable
without the prior written consent of the Placement Agent. This Placement
Agreement will inure to the benefit of and be binding upon the parties hereto
and their successors and assigns, and will not confer any rights upon any other
persons except that the Purchasers shall be beneficiaries of the representations
in Sections 4 and 5 hereof.
Section 13. Counterparts. This Placement Agreement may be
executed in any number of counterparts, all of which taken together shall be one
and the same instrument, and any parties hereto may execute this Placement
Agreement by signing any such counterpart.
Section 14. Expenses. Whether or not the Bonds are sold by the
Issuer, the Placement Agent shall be under no obligation to pay any fees or
expenses incident to the performance of the obligations of the Issuer. All fees,
expenses and costs to effect the authorization, preparation, issuance, delivery,
placement and sale of the Bonds (including without limitation the Issuer's fees
and legal and other expenses), the fees and disbursements of Bond Counsel, the
placement fee and expenses (including legal, travel and newspaper "tombstone"
advertisement expenses) of the Placement Agent and the expenses and costs for
the preparation, printing,
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photocopying, execution and delivery of the Placement Memorandum, the Bonds, the
Indenture, the Loan Agreement, the Letter of Credit, the Participating Bank
Agreement, the Reimbursement Agreement, the Pledge Agreement, the Remarketing
Agreement, this Placement Agreement and all other documents contemplated hereby
and/or delivered at Closing, shall be paid by the Borrower or by the Trustee
from moneys deposited in the Project Fund established under the Indenture
pursuant to appropriate closing statements and/or requisitions signed and
delivered by the Borrower.
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IN WITNESS WHEREOF, the Issuer, the Borrower and the Placement
Agent have caused their duly authorized representatives to execute and deliver
this Placement Agreement as of the date first written above.
[SEAL] MONTGOMERY COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Attest: /s/ Gerald J. Birkelbach By: /s/ Sherry L. Horowitz
------------------------------- -------------------------------
(Assistant) Secretary Chairperson or Vice Chairman
[SEAL] NEOSE TECHNOLOGIES, INC.
Attest: /s/ A. Brian Davis By: /s/ P. Sherrill Neff
--------------------------------- -------------------------------
Secretary President
[SEAL]
CORESTATES CAPITAL MARKETS, A
DIVISION OF CORESTATES BANK, N.A.
By: /s/ Wade Johnson
--------------------------------
Senior Vice President
This execution page is part of the Placement Agreement, dated March 20, 1997
among Montgomery County Industrial Development Authority, Neose Technologies,
Inc. and CoreStates Capital Markets, a division of CoreStates Bank, N.A..
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LIST OF EXHIBITS OMITTED
EXHIBIT A - Points to Be Covered in Opinion of Bond Counsel
EXHIBIT B - Points to be Covered in Supplemental Opinion of Bond Counsel
EXHIBIT C - Points to be Covered in Preference Opinion of Bond Counsel
EXHIBIT D - Points to be Covered in Opinion of Issuer Counsel
EXHIBIT E - Points to be Covered in Opinion of Borrower Counsel
EXHIBIT F - Points to be Covered in Opinion of Bank Counsel
EXHIBIT G - CERTIFICATE OF BANK
EXHIBIT H - Certificate of Borrower
EXHIBIT I - Certificate of Issuer
The Registrant hereby agrees to furnish supplementally a copy of any omitted
exhibit to the Securities and Exchange Commission upon request.