Exhibit 1.2
Antigenics Inc.
4,000,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
January 11, 2002
UNDERWRITING AGREEMENT
January 11, 2002
UBS Warburg LLC
Robertson Stephens, Inc.
As the Representatives of the several Underwriters
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Antigenics Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the Underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 4,000,000 shares of Common Stock, $0.01 par
value per share (the "Common Stock"), of the Company (the "Firm Shares"). In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional 600,000 shares of Common Stock (the "Additional Shares"). The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares". The Shares are described in the Prospectus which is
referred to below.
The Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the "Act"), with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-74002) under the Act (the "registration statement"). Amendments to
such registration statement have been similarly prepared and filed with the
Commission. Such registration statement, as so amended, has been declared by the
Commission to be effective under the Act. The Company will next file with the
Commission pursuant to Rule 424(b) under the Act a final prospectus supplement
to the basic prospectus, describing the Shares and the offering thereof, in such
form as has been provided to or discussed with, and approved, by the
Underwriters.
The term "Registration Statement" as used in this Agreement means
the registration statement, as amended at the time it became effective and as
supplemented or amended prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents incorporated
by reference or deemed to be incorporated by reference therein. If an
abbreviated registration statement is prepared and filed with the Commission in
accordance with Rule 462(b) under the Act (an "Abbreviated
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Registration Statement"), the term "Registration Statement" includes the
Abbreviated Registration Statement. The term "Basic Prospectus" as used in this
Agreement means the basic prospectus dated as of January 11, 2002 and to be
filed with the Commission pursuant to Rule 424(b) not later than January 14,
2002. The term "Prepricing Prospectus" as used in this Agreement means any form
of preliminary prospectus used in connection with the marketing of the Shares,
including the preliminary prospectus supplement dated as of December 31, 2001
and filed with the Commission on January 2, 2002 pursuant to Rule 424 under the
Act and any basic prospectus (whether or not in preliminary form) used with any
such preliminary prospectus supplement in connection with the marketing of the
Shares, in each case as any of the foregoing may be amended or supplemented by
the Company. The term "Prospectus Supplement" as used in this Agreement means
any final prospectus supplement specifically relating to the Shares, in the form
filed with, or transmitted for filing to, the Commission pursuant to Rule 424
under the Act. The term "Prospectus" as used in this Agreement means the Basic
Prospectus together with the Prospectus Supplement except that if such Basic
Prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement was first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the Basic Prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement. Any reference herein to the
registration statement, the Registration Statement, the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus shall be
deemed to refer to and include (i) the documents incorporated by reference
therein pursuant to Form S-3 (the "Incorporated Documents") and (ii) the copy of
the Registration Statement, the Basic Prospectus, the Prepricing Prospectus, the
Prospectus Supplement, the Prospectus or the Incorporated Documents filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR"). Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Prepricing
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the filing of any document under the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (collectively, the
"Exchange Act") after the effective date of the Registration Statement, or the
date of the Prospectus, as the case may be, deemed to be incorporated therein by
reference.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the respective
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A annexed hereto, in each case at a purchase price of $14.10 per Share.
The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase
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or decrease the public offering price after the initial public offering to such
extent as you may determine in a manner consistent with applicable law, rules
and regulations.
In addition, the Company hereby grants to the several Underwriters
the option to purchase, and upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company all or a
portion of the Additional Shares as may be necessary to cover over-allotments
made in connection with the offering of the Firm Shares, at the same purchase
price per share to be paid by the Underwriters for the Firm Shares. This option
may be exercised by you once on behalf of the several Underwriters at any time
on or before the 30th day following the date hereof by written notice to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day(1) after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine solely to eliminate fractional
shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on January 16, 2002 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof) at the offices of Dewey Ballantine LLP, 1301 Avenue of the Americas,
New York, New York 10019. The time at which such payment and delivery are
actually made is hereinafter called the "time of purchase." Electronic transfer
of the Firm Shares shall be made to you at the time of purchase in such names
and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the
- ------------
1 As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has not received nor has notice of any order of the
Commission preventing or suspending the use of the Basic Prospectus, any
Prepricing Prospectus, the Prospectus Supplement or the Prospectus or
instituting proceedings for that purpose, and the Basic Prospectus, the
Prospectus Supplement and the Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act; the
Company is eligible to use Form S-3 and the offering of the Shares
complies with the requirements of Rule 415 (assuming that the Shares are
distributed by the Underwriters as described in the Prospectus
Supplement). Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415 under the Act and
complies in all material respects with said Rule 415; when the
Registration Statement became or becomes effective, the Registration
Statement and the Prospectus conformed or will conform in all material
respects with the provisions of the Act, and the Registration Statement
did not or will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty with respect to any statement contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus; and
neither the Company nor any of its affiliates has distributed any offering
material in connection with the offer or sale of the Shares other than the
Registration Statement, the Prepricing Prospectus and the Prospectus or
any other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company's capitalization
is as set forth under the heading entitled "Actual" in the section of the
Prospectus entitled "Capitalization" and, as of the time of purchase and
the additional time of purchase, as the case may be, the Company's
capitalization shall be as set forth under the heading entitled "As
Adjusted" in the section of the Prospectus entitled "Capitalization"
(subject, in each case, to the issuance of shares of Common Stock upon the
exercise of stock options disclosed as outstanding in the Prospectus); all
of the issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable, have been issued
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in compliance with all federal and state securities laws and were not
issued in violation of any preemptive right, resale right, right of first
refusal or similar right;
(c) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify would
not reasonably be expected to have a material adverse effect on the
business, operations, prospects, properties, condition (financial or
otherwise) or results of operation of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole (a "Material Adverse Effect"). The
Company has no subsidiaries (as defined in the Act) other than as listed
in Schedule B annexed hereto (the "Subsidiaries"); except as described in
the Registration Statement and the Prospectus, the Company owns 100% of
the outstanding capital stock of the Subsidiaries; except for the
Subsidiaries or as described in the Registration Statement and the
Prospectus, the Company does not own, directly or indirectly, any
long-term debt or any equity interest in any firm, corporation,
partnership, joint venture, association or other entity; complete and
correct copies of the certificates of incorporation and of the bylaws of
the Company and each of the Subsidiaries and all amendments thereto have
been delivered to you; each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus; each of the Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
ownership or leasing of the properties or the conduct of its business
requires such qualification, except where the failure to so qualify would
not reasonably be expected to have a Material Adverse Effect; all of the
outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable,
have been issued in compliance with all applicable securities laws and
were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right, except for any violation that would
not, individually or in the aggregate, have a Material Adverse Effect;
(e) neither the Company nor any of the Subsidiaries is in breach or
violation of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would result in any breach or violation of,
or constitute a default under) (each such breach, violation, default or
event, a "Default Event"), (i) its charter, bylaws or other organizational
documents, (ii) any obligation, agreement,
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covenant or condition contained in any license, permit, indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence
of indebtedness, or any lease, contract or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which any
of them or any of their properties is bound or affected, (iii) any
federal, state, local or foreign law, regulation or rule or (iv) any
decree, judgment or order applicable to the Company, any of the
Subsidiaries or any of their respective properties, other than, in the
case of clause (ii), such Default Events as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect;
and the execution, delivery and performance of this Agreement, including
the issuance and sale of the Shares and the consummation of the other
transactions contemplated hereby, does not constitute and will not result
in a Default Event under (w) any provisions of the charter, bylaws or
other organizational documents of the Company or any of the Subsidiaries,
(x) under any provision of any license, permit, indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of indebtedness,
or any lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries or by which any of them or their
respective properties may be bound or affected, (y) under any federal,
state, local or foreign law, regulation or rule or (z) under any decree,
judgment or order applicable to the Company, any of the Subsidiaries or
any of their respective properties, except in the case of clause (x) for
such Default Events as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company;
(g) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus;
(h) the Shares have been duly and validly authorized by the Company
and, when issued and delivered by the Company against payment therefor as
provided herein, will be validly issued, fully paid and non-assessable;
(i) no approval, authorization, consent or order of or filing with
any national, state, local or other governmental or regulatory commission,
board, body, authority or agency is required to be obtained or made by the
Company or any of the Subsidiaries in connection with the issuance and
sale of the Shares or the consummation by the Company of the other
transactions contemplated hereby other than registration of the offer and
sale of the Shares under the Act, which has been effected, and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters and
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under the rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD") with respect to the reasonableness of the terms of
the offering;
(j) except as set forth in the Registration Statement and the
Prospectus (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, (ii) no
person has any preemptive rights, resale rights, rights of first refusal
or other rights to purchase any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company and (iii) no
person has the right to act as an underwriter, or as a financial advisor
to the Company, in connection with the offer and sale of the Shares, in
the case of each of the foregoing clauses (i), (ii) and (iii), whether as
a result of the filing or effectiveness of the Registration Statement or
the sale of the Shares as contemplated thereby or otherwise; no person has
the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby whether as a result of the filing or effectiveness of
the Registration Statement or the sale of the Shares as contemplated
thereby or otherwise, except for such rights as have been complied with or
waived;
(k) each of KPMG LLP, PricewaterhouseCoopers LLP and Arthur Andersen
LLP, whose respective reports on the consolidated financial statements of
the Company and the Subsidiaries, the financial statements of Antigenics
Inc. (Massachusetts), a Massachusetts corporation (f/k/a Aquila
Biopharmaceuticals, Inc.), and the consolidated financial statements of
Aronex Pharmaceuticals, Inc., a Delaware corporation, wholly-owned
subsidiaries of the Company ("Aquila" and "Aronex", respectively) are
filed with the Commission as part of the Registration Statement and the
Prospectus, are independent public accountants as required by the Act;
(l) the Company and each of the Subsidiaries has all necessary
licenses, permits, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign law,
regulation or rule (collectively, "Permits"), and has obtained all
necessary authorizations, consents and approvals from other persons
(collectively, "Approvals"), in order to conduct its business as described
in the Registration Statement and the Prospectus, other than such Permits
and Approvals the failure of which to obtain would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries is in violation of, or in
default under, any such Permit or Approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries
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the effect of which would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(m) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or any document incorporated by reference
therein or to be filed as an exhibit to the Registration Statement or any
document incorporated by reference therein have been so described or filed
as required;
(n) except as disclosed in the Registration Statement and the
Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or threatened to which the Company or any of the
Subsidiaries or, to the Company's knowledge, any of their respective
directors or officers is a party or of which any of their respective
properties is subject at law or in equity, or before or by any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency which, if adversely decided, would reasonably be
expected to result in a judgment, decree or order having a Material
Adverse Effect or prevent consummation of the transactions contemplated
hereby;
(o) the consolidated financial statements, together with the related
schedules and notes, included in the Registration Statement and the
Prospectus present fairly, in all material respects, the consolidated
financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of the
Company and the Subsidiaries for the periods specified and have been
prepared in compliance with the requirements of the Act and in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved; any pro forma financial statements or
data included in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of Regulation S-X of the Act, and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of
those statements; the other financial and statistical data set forth in
the Registration Statement and the Prospectus are accurately presented, in
all material respects and prepared on a basis consistent with such
financial statements and books and records of the Company; and there are
no financial statements (historical or pro forma) that are required to be
included in the Registration Statement and the Prospectus that are not
included as required;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development which would reasonably
be expected to cause a material adverse change, in the business,
operations, properties, condition (financial or otherwise) or results of
operations of the Company and the Subsidiaries taken as a whole, (ii) any
transaction which is material to the Company or any of the
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Subsidiaries taken as a whole, except transactions pursuant to this
Agreement, (iii) any obligation, direct or contingent, which is material
to the Company and the Subsidiaries taken as a whole, incurred by the
Company or any of the Subsidiaries, (iv) any change in the capital stock
or outstanding indebtedness of the Company or any of the Subsidiaries
(other than pursuant to the exercise of stock options described in the
Registration Statement and the Prospectus as outstanding, the grant of
stock options under stock option plans described in the Registration
Statement and the Prospectus or the issuance of Common Stock pursuant to
stock purchase plans described in the Registration Statement and the
Prospectus) or (v) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company; neither the Company nor any
of the Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement and the Prospectus;
(q) the Company has obtained for the benefit of the Underwriters the
agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit A
hereto, of each of its officers and directors listed on Schedule C hereto
and Antigenics Holdings L.L.C.; the Company will not release or purport to
release any person from any Lock-Up Agreement without the prior written
consent of UBS Warburg LLC;
(r) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(s) any statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
(t) neither the Company nor any of the Subsidiaries nor any of their
respective affiliates has taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(u) the Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act, and none of such documents, when they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and/or the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, as applicable, and will
not
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contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading;
(v) the Company and each of the Subsidiaries maintain insurance of
the types and in amounts reasonably adequate for their respective
businesses, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and each of the
Subsidiaries against theft, damage, destruction, acts of vandalism and
other risks customarily insured against, all of which insurance is in full
force and effect;
(w) neither the Company nor any of the Subsidiaries has sustained
since the date of the latest financial statements included in the
Prospectus any losses or interferences with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus or other than any losses or interferences
which would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;
(x) the Company and each of the Subsidiaries have good title to all
personal property owned by them as described in the Registration Statement
and the Prospectus, free and clear of all liens, encumbrances and defects
except such as are described in the Registration Statement and the
Prospectus or such as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; except as
described in the Registration Statement and the Prospectus, any real
property and buildings held under lease by the Company or any of the
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
or any of the Subsidiaries, as the case may be;
(y) neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which would, individually or in
the aggregate, reasonably be expected to result in a Material Adverse
Effect;
(z) the Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific
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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;
(aa) all tax returns required to be filed by the Company and each of
the Subsidiaries have been filed, other than those filings being contested
in good faith, and all taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such returns
or pursuant to any assessment received by the Company or any of the
Subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided;
(bb) other than as set forth in the Registration Statement and the
Prospectus, or as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect: to the Company's knowledge,
the Company and the Subsidiaries own, possess, license or have other
rights to use, all material patents, trademarks, servicemarks, trade
names, copyrights, trade secrets, information, proprietary rights and
processes ("Intellectual Property") necessary for their business as
described in the Registration Statement and the Prospectus and necessary
in connection with the commercialization of the existing products of the
Company and the Subsidiaries and the products described in the
Registration Statement and the Prospectus as being under development, and
the Company and the Subsidiaries have taken all reasonable steps necessary
to secure interests in such Intellectual Property; except as described in
the Registration Statement and the Prospectus, the Company is not aware of
any options, licenses or agreements of any kind relating to the
Intellectual Property of the Company or the Subsidiaries that are
outstanding and which are required to be described in the Registration
Statement and the Prospectus, and, except as described in the Registration
Statement and the Prospectus, neither the Company nor either of the
Subsidiaries is a party to or bound by any options, licenses or agreements
with respect to the Intellectual Property of any other person or entity
which are required to be described in the Registration Statement and the
Prospectus; none of the technology employed by the Company and the
Subsidiaries has been obtained or is used or proposed to be used by the
Company or the Subsidiaries in violation of any contractual obligation
binding on the Company or the Subsidiaries or any of their respective
directors or executive officers or, to the Company's knowledge, any
employees of the Company or the Subsidiaries or otherwise in violation of
the valid rights of any persons, other than any violation which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; except as described in the Registration Statement
and the Prospectus, to the Company's knowledge neither the Company nor any
of the Subsidiaries has violated, infringed or conflicted with, or, by
conducting its business as described the
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Registration Statement and the Prospectus and commercializing the products
under development described therein, would violate, infringe or conflict
with any of the valid Intellectual Property of any other person or entity
other than any such violation, infringement or conflict which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and
(cc) the clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Company or any Subsidiary
or in which the Company, any Subsidiary or the products or product
candidates of the Company or any Subsidiary have participated that are
described in the Registration Statement and the Prospectus or the results
of which are referred to in the Registration Statement and the Prospectus
were and, if still pending, are being conducted in accordance with
accepted standard medical and scientific research procedures; the
descriptions in the Registration Statement and the Prospectus of the
results of such studies and tests are accurate in all material respects
and fairly present the data derived from such studies and tests, and the
Company and each Subsidiary has no knowledge of any other studies or tests
the results of which are inconsistent with or otherwise call into question
the results described or referred to in Registration Statement and the
Prospectus; except to the extent disclosed in the Registration Statement
and the Prospectus, the Company and each Subsidiary has operated and
currently is in compliance in all material respects with all applicable
rules, regulations and policies of the U.S. Food and Drug Administration
and comparable drug regulatory agencies outside of the United States
(collectively, the "Regulatory Authorities"); and except to the extent
disclosed in the Registration Statement and the Prospectus, the Company
has not received any notices or other correspondence from the Regulatory
Authorities or any other governmental agency requiring the termination,
suspension or modification of any clinical or pre-clinical studies or
tests that are described in the Registration Statement and the Prospectus
or the results of which are referred to in the Registration Statement and
the Prospectus.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to the extent reasonably necessary to effect the distribution of
the Shares as contemplated by the Prospectus Supplement, to furnish such
information as may be required and otherwise to cooperate in qualifying
the Shares for offering and sale under the securities or blue sky laws of
such states as you may designate and to maintain such qualifications in
effect so long as required for the distribution of the Shares; provided
that the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such state
(except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose;
12
(b) to make available to the Underwriters in New York City, as soon
as practicable after the execution and delivery of this Agreement, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto after
the effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act; in case any
Underwriter is required to deliver a prospectus after the nine-month
period referred to in Section 10(a)(3) of the Act in connection with the
sale of the Shares, the Company will prepare promptly upon request such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when any post-effective amendment to the
Registration Statement has become effective and (ii) when the Prospectus
is filed with the Commission pursuant to Rule 424(b) under the Act (which
the Company agrees to file in a timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing (if
requested by you), of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice of institution
of proceedings for, or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission should
enter a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting or
removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and to file no such amendment or supplement to which you shall
object in writing except as required pursuant to any legal, administrative
order or process;
(e) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(f) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the date
of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares and to
promptly notify you of such filing;
(g) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement or
any Abbreviated Registration Statement to be declared effective before the
offering of the Shares may commence, the Company will endeavor to cause
such post-effective amendment or
13
Abbreviated Registration Statement to become effective as soon as possible
and will advise you promptly and, if requested by you, will confirm such
advice in writing, when such post-effective amendment or Abbreviated
Registration Statement has become effective;
(h) to make available to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company shall
send to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms, as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities exchange on which
any class of securities of the Company is listed, and (iv) such other
information as you may reasonably request regarding the Company or any of
the Subsidiaries, in each case as soon as reasonably practicable after
such reports, communications, documents or information become available
(subject, in the case of information not publicly available, to
appropriate confidentiality undertakings reasonably satisfactory to the
Company and the Company's right to withhold information if required by
applicable law);
(i) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which
would require the making of any change in the Prospectus then being used,
or in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and,
during such time, to prepare and furnish, at the Company's expense (for
the first nine months after the date of the Prospectus and thereafter, at
the Underwriters' expense), to the Underwriters promptly such amendments
or supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(j) to make generally available to its security holders, and to
deliver to you, as soon as reasonably practicable, but not later than 16
months after the date of this Agreement, an earnings statement of the
Company (which will satisfy the provisions of Section 11(a) of the Act)
covering a period of 12 months beginning after the later of (i) effective
date of the Registration Statement (as defined in Rule 158(c) of the Act)
covering the Firm Shares, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective
prior to the date of this Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior to
the date of this Agreement;
14
(k) to furnish to you three conformed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto) and sufficient additional
conformed copies (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(l) to furnish to you as early as reasonably practicable prior to
the time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements, if
any, of the Company and the Subsidiaries which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(f) hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, the Basic
Prospectus, each Prepricing Prospectus, the Prospectus, and any amendments
or supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issuance, sale and delivery of the
Shares, (iii) the printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof) and the reproduction
and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) determining the need for, and effecting, any
required qualification of the Shares for offering and sale under state
laws and the determination of their eligibility for investment under state
law as aforesaid (including associated filing fees and the reasonable
legal fees and disbursements of counsel for the Underwriters) and the
printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) any listing of
the Shares on any securities exchange or qualification of the Shares for
quotation on the Nasdaq National Market ("NASDAQ") and any registration
thereof under the Exchange Act, (vi) determining the need for, and
facilitating, any required review of the public offering of the Shares by
NASD Regulation, Inc. (including associated filing fees and the reasonable
legal fees and disbursements of counsel for the Underwriters), (vii) the
costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offer and sale of the
Shares to prospective investors and your sales forces, 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, travel, lodging and other expenses
incurred by the officers of the Company and any such consultants and
(viii) the performance of the other obligations of the Company hereunder.
With respect to the expenses described
15
in clauses (iii), (iv) and (vi) of this Section 4(n), the Company shall be
credited with any balance of the retainer in the amount of $50,000 paid by
the Company to UBS Warburg LLC pursuant to the Engagement Letter dated as
of October 15, 2001 between the Company and UBS Warburg LLC (the
"Engagement Letter") remaining after applying such retainer against any
amounts payable by the Company pursuant to the Engagement Letter;
(o) for so long as the delivery of the Prospectus is required in
connection with the offer or sale of the Shares, to furnish to you, before
filing with the Commission, a copy of any document proposed to be filed
pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(p) to not take, directly or indirectly, any action designed to or
which may constitute or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares; and
(q) not to sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or other
rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or file or cause to be
declared effective a registration statement under the Act relating to the
offer and sale of any shares of Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock or other rights to
purchase Common Stock or any other securities of the Company that are
substantially similar to Common Stock, for a period of 90 days after the
date hereof (the "Lock-up Period"), without the prior written consent of
UBS Warburg LLC, except for (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Prospectus, (iii) the
issuance of employee stock options not exercisable during the Lock-up
Period pursuant to stock option plans and the Company's Employee Stock
Purchase Plan described in the Registration Statement and the Prospectus,
(iv) issuances of shares of Common Stock or any securities convertible
into or exercisable for Common Stock in connection with a strategic
licensing arrangement, corporate partnering transaction or similar
collaboration; provided that (A) the recipient of such shares agrees in
writing with or for the benefit of the Underwriters not to dispose of such
shares during the Lock-Up Period and (B) such securities shall not exceed
in the aggregate, together with the common share equivalent of any
securities agreed to be issued as described in clause (v) below, a common
share equivalent of 3,301,000 shares of Common Stock or (v) agreements to
issue shares of Common Stock or any securities convertible into or
exercisable for Common stock in connection with an acquisition, by merger
or
16
consolidation with, or by purchase of a substantial portion of the assets
of, or by any other manner, of any business or corporation, partnership,
association or other business organization or division thereof; provided
that (A) any such securities described in this clause (v) may not be
issued during the Lock-Up Period and (B) the securities agreed to be
issued shall not in the aggregate, together with any issuances of the type
described in clause (iv) above, exceed a common share equivalent of
3,301,000 shares of Common Stock.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than as a result of the occurrence of any event
specified in clause (ii) of Section 7 hereof or pursuant to the last paragraph
of Section 8 hereof or the default by one or more of the Underwriters in its or
their respective obligations hereunder, the Company agrees, in addition to
paying the amounts described in Section 4(n) hereof, to reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of their counsel incurred in connection with this
Agreement and the transactions contemplated hereby.
6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) You shall have received, at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Palmer &
Dodge LLP, counsel for the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may be, with reproduced copies for each of the other Underwriters and in
form reasonably satisfactory to Dewey Ballantine LLP, counsel for the
Underwriters, stating that:
(i) the Company is a corporation validly existing and in good
standing under the laws of the State of Delaware, with corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
the Prospectus, to execute and deliver this Agreement and to issue,
sell and deliver the Shares as contemplated herein;
(ii) each of the Subsidiaries is a corporation validly
existing and in good standing under the laws of its jurisdiction of
incorporation with the corporate power and authority to own, lease
and operate its properties and
17
conduct its business as described in the Registration Statement and
the Prospectus;
(iii) the Company and VacTex, Inc., a Delaware corporation,
are duly qualified to do business as foreign corporations and are in
good standing in the Commonwealth of Massachusetts;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Firm Shares have been duly authorized and, when issued
and delivered to and paid for by the Underwriters, will be duly and
validly issued and will be fully paid and non-assessable;
(vi) the Company has authorized and outstanding shares of
capital stock as set forth in the Registration Statement and the
Prospectus under the captions "Description of Common Stock,"
"Description of Preferred Stock" and "Capitalization"; the
outstanding shares of capital stock of the Company (A) have been
duly and validly authorized and issued and are fully paid and
non-assessable, and (B) are free of preemptive rights, resale
rights, rights of first refusal and similar rights under the
Delaware General Corporation Law (the "DGCL") or the charter or
bylaws or other organizational documents of the Company or any
contract, commitment or instrument described in or filed as an
exhibit to the Registration Statement; the Shares, when issued, will
be free of preemptive or similar rights under the DGCL or any
contract, commitment or instrument described in or filed as an
exhibit to the Registration Statement; the holders of the Shares
will not be subject to personal liability by reason of being such
holders; and the certificates for the Shares are in due and proper
form and conform to the requirements of the DGCL and the NASDAQ
National Market;
(vii) all of the outstanding shares of capital stock of each
of Aquila and Aronex have been duly authorized and validly issued,
are fully paid and non-assessable, are owned of record by the
Company and to our knowledge are not subject to any perfected
security interest or any other encumbrance or adverse claim; to such
counsel's knowledge, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights
to convert any obligation into shares of capital stock or ownership
interests in Aquila and Aronex are outstanding;
(viii) the capital stock of the Company, including the Shares,
conforms as to legal matters in all material respects to the
description thereof contained in the Registration Statement and
Prospectus;
18
(ix) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) as of their respective dates complied as to form
in all material respects with the requirements of the Act;
(x) the Registration Statement has become effective under the
Act, and to such counsel's knowledge, no stop order with respect to
the effectiveness thereof has been issued and no stop order
proceedings with respect thereto are pending or threatened under the
Act; and any required filing with the Commission of the Prospectus
and any supplement thereto pursuant to Rule 424 under the Act has
been made within the time period required by such Rule 424;
(xi) no approval, authorization, consent or order of or filing
with any governmental agency or body or any court is required in
connection with the execution and delivery of this Agreement and the
issuance and sale of the Shares and consummation of the other
transactions contemplated hereby other than those that have been
obtained under the Act, the Exchange Act and the rules of NASDAQ and
other than any necessary qualification under the state securities or
blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters or any necessary approval of the
Corporate Financing Department of NASD Regulation, Inc., as to which
such qualification and approval such counsel need express no
opinion;
(xii) the execution, delivery and performance of this
Agreement by the Company, and the consummation of the transactions
contemplated hereby and by the Registration Statement, will not
result in, whether with notice, lapse of time or both, a breach or
violation of any of the terms and provisions of, or constitute a
default under (A) any provision of the charter or bylaws or other
organizational documents of the Company or any of the Subsidiaries,
(B) any provision of any agreement or instrument filed as an exhibit
to the Registration Statement and issued to the Company or any of
the Subsidiaries, or to which the Company or any of the Subsidiaries
is a party or by which any of them may be bound or affected, or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject or may be bound or affected, or (C) any
statute, regulation or rule of any governmental agency or body or
any decree, judgment or order known to such counsel of any court
having jurisdiction over the Company or any Subsidiary or any of
their properties, other than in the case of clause (B) such breaches
or violations as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
19
(xiii) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to
be summarized or described in the Prospectus which have not been so
filed, summarized or described;
(xiv) to such counsel's knowledge, there are no actions,
suits, claims, investigations or proceedings pending or threatened
to which the Company or any of the Subsidiaries is subject or of
which any of their respective properties is subject, whether at law,
in equity or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, which are required to be described in the Prospectus but are
not so described;
(xv) the Incorporated Documents complied as to form in all
material respects, at the time such documents were filed with the
Commission, as subsequently amended or supplemented, with the
requirements of the Exchange Act (other than the financial
statements and schedule to other financial and statistical data
contained therein, as to which such counsel need express no
opinion);
(xvi) the Company is not and, after giving effect to the offer
and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xvii) those statements in the Prospectus under the caption
"Risk Factors -- Anti-takeover provisions in our charter documents
and under Delaware law may make an acquisition of us more
difficult," in the Company's Current Report on Form 8-K dated
November 30, 2000 under the caption "Item 2. Acquisition or
Disposition of Assets" and in the Company's Current Report on Form
8-K dated July 26, 2001 under the caption "Item 2. Acquisition or
Disposition of Assets," insofar as such statements constitute a
summary of documents referred to therein or matters of law, are
accurate in all material respects and present fairly the information
required to be shown; and
(xviii) no person has the right, pursuant to the terms of any
contract, agreement or other instrument described in or filed as an
exhibit to the Registration Statement, to have any securities issued
by the Company and owned by them sold in the offering contemplated
by the Prospectus Supplement, except for such rights as have been
complied with or waived.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives
20
of the independent public accountants of the Company and representatives
of the Underwriters at which the contents of the Registration Statement
and Prospectus were discussed and, although such counsel has not
independently verified and is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus (except
as and to the extent stated in subparagraphs (vi), (viii) and (xvii)
above), such counsel shall advise the Underwriters that, on the basis of
the foregoing no facts have come to the attention of such counsel which
cause them to believe that the Registration Statement (except as to the
financial statements and schedules and other financial and statistical
data contained therein, as to which such counsel need express no opinion)
at 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 (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to which
such counsel need express no opinion) at the date of such Prospectus and
as of the date of such counsel's opinion, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Pennie &
Edmonds LLP, patent counsel to the Company, dated the time of purchase or
the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters and in form reasonably
satisfactory to Dewey Ballantine LLP, counsel for the Underwriters,
stating that:
(i) to such counsel's knowledge, except as described in the
Registration Statement and the Prospectus, (A) the Company (either
directly or through any of the Subsidiaries) has valid license or
option rights, except as set forth in Schedule A to such opinion, or
ownership rights to the patent applications and patents included in
the Intellectual Property referenced in the Registration Statement
and the Prospectus that are being prosecuted or maintained by such
counsel ("Patents"); (B) there is no infringement or other violation
by third parties of any of the Patents; (C) there is no pending or
threatened action, suit proceeding or claim by governmental
authorities or others that the Company or any of the Subsidiaries
infringes or otherwise violates any patent rights of others, and
such counsel is unaware of any facts which would lead it to conclude
that there is a reasonable basis for a claim that the Company or any
of the Subsidiaries infringes or otherwise violates, or would
infringe or otherwise violate upon commercialization of its
Oncophage, QS-21 or AG-702 development-stage products, valid patent
rights of others; (D) there is no pending or threatened action,
suit, proceeding or claim by
21
governmental authorities or others challenging the rights of the
Company or the Subsidiaries in or to any Patents, and such counsel
is unaware of any facts which would lead it to conclude that there
is a reasonable basis for any such claim; and (E) there is no prior
art that may render all of the claims of any patent applications
within the Patents unpatentable, which has not been disclosed to the
U.S. Patent and Trademark Office, and there is no prior art that may
render all of the claims of any patent within the Patents invalid;
(ii) to such counsel's knowledge, except as described in the
Registration Statement and the Prospectus, the patent applications
of the Company and the Subsidiaries prosecuted by such counsel and
presently on file disclose patentable subject matter, and such
counsel is not aware of any inventorship challenges, any
interference which has been declared or provoked, or any other
material fact with respect to such patent applications that (A)
would preclude the issuance of patents with respect to such
applications or (B) would lead such counsel to conclude that such
patents, when issued, would not be valid and enforceable in
accordance with applicable regulations;
(iii) the statements in the Registration Statement and the
Prospectus under the captions "Risk Factors -- Risks Related to Our
Business -- If we fail to sustain and further build our intellectual
property rights, competitors will be able to take advantage of our
research and development efforts to develop competing products and
our business will suffer" and "We may incur substantial costs as a
result of litigation or other proceedings relating to patent and
other intellectual property rights and we may be unable to protect
our rights to, or use, our technology" referencing matters related
to the Patents, insofar as such statements constitute summaries of
legal matters or proceedings referred to therein, or refer to
statements of law or legal conclusions, are in all material respects
accurate and complete statements or summaries of the matters therein
set forth;
(iv) the Company's development-stage product Oncophage does
not infringe, and, upon commercialization of Oncophage, would not
infringe any valid claims of those patents for which such counsel
has undertaken a detailed review and analysis on behalf of the
Company; and
(v) nothing has come to such counsel's attention that causes
such counsel to believe that the portions of the Registration
Statement related to the Patents, at the time such Registration
Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the portions of the Prospectus related to the
Patents, at
22
the date of the Prospectus and at all times leading up to and
including the time of purchase and the additional time of purchase,
as the case may be, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Venable,
Baetjer & Howard, LLP, regulatory counsel for the Company, dated the time
of purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Dewey Ballantine LLP, counsel for the
Underwriters, stating that the statements contained in the Company's
Annual Report on Form 10-K for the year ended December 31, 2000,
incorporated by reference in the Registration Statement and the Prospectus
and filed with the Commission on March 28, 2001, under the caption "Our
Business -- Regulatory Considerations") insofar as such statements
summarize applicable provisions of the United States federal statues,
rules and regulations administered by the US Food and Drug Administration
are in all material respects accurate summaries of the statutes, rules and
regulations therein set forth.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Lorusso &
Loud, patent counsel to the Company, dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters, in form and substance reasonably
satisfactory to the Underwriters.
(e) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Dewey
Ballantine LLP, counsel for the Underwriters, dated the time of purchase
or the additional time of purchase, as the case may be, with respect to
the issuance and sale of the Shares by the Company, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriters may require.
(f) You shall have received from each of KPMG LLP,
PricewaterhouseCoopers LLP and Arthur Andersen LLP letters dated,
respectively, on or about the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved Dewey Ballantine LLP,
counsel for the Underwriters.
(g) No amendment or supplement to the Registration Statement or
Prospectus, or document which upon filing with the Commission would be
23
incorporated by reference therein, shall at any time have been filed to
which you have reasonably objected in writing.
(h) The Prospectus Supplement shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M.
New York City time on the second full business day after the date of this
Agreement.
(i) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(j) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material and adverse change or any development involving a prospective
material and adverse change (other than as described in the Registration
Statement and Prospectus), in the business, properties, condition
(financial or otherwise) or results of operations of the Company and the
Subsidiaries, taken as a whole, shall occur or become known and (ii) no
transaction which is material and adverse to the Company shall have been
entered into by the Company or any of the Subsidiaries.
(k) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate signed by one
of the Company's executive officers to the effect that the representations
and warranties of the Company as set forth in this Agreement are true and
correct as of each such date, that the Company has performed such of its
obligations under this Agreement as are to be performed at or before the
time of purchase and at or before the additional time of purchase, as the
case may be, and the conditions set forth in paragraphs (i) and (j) of
this Section 6 have been met.
(l) You shall have received the letters referred to in Section 3(q).
(m) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and
the additional time of purchase, as the case may be, as you may reasonably
request.
24
(n) The Shares shall have been approved for listing for
quotation on NASDAQ, subject only to notice of issuance at or prior to
the time of purchase or the additional time of purchase, as the case
may be.
(o) Between the time of execution of this Agreement and the
time of purchase or additional time of purchase, as the case may be,
there shall not have occurred any downgrading, nor shall any notice or
announcement have been given or made of (i) any intended or potential
downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any debt securities of
or guaranteed by the Company or any Subsidiary by any "nationally
recognized statistical rating organization", as that term is defined in
Rule 436(g)(2) under the Act.
7. Effective Date of Agreement; Termination. This Agreement
shall become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, (i) if, since the time of execution
of this Agreement or the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has been any material
adverse change, financial or otherwise (other than as described in the
Registration Statement and the Prospectus), in the business, operations,
prospects, properties, condition, or results of operation of the Company and the
Subsidiaries taken as a whole, which would, in your judgment or in the judgment
of such group of Underwriters, make it impracticable to market the Shares or
(ii) if, at any time prior to the time of purchase or, with respect to the
purchase of any Additional Shares, the additional time of purchase, as the case
may be, trading in securities on the New York Stock Exchange, the American Stock
Exchange or NASDAQ shall have been suspended or limitations or minimum prices
shall have been established on the New York Stock Exchange, the American Stock
Exchange or NASDAQ, or if a banking moratorium shall have been declared either
by the United States or New York State authorities, or if the United States
shall have declared war in accordance with its constitutional processes or there
shall have occurred any material outbreak or escalation of hostilities or other
national or international calamity or crisis of such magnitude in its effect on
the financial markets of the United States as, in your judgment or in the
judgment of such group of Underwriters, to make it impracticable to market the
Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified promptly by letter or telegram from such terminating
Underwriter.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this
25
Agreement or if such sale is not carried out because the Company shall be unable
to comply with any of the terms of this Agreement, the Company shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to purchase and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to purchase and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
purchase and pay for (in addition to the aggregate number of Firm Shares they
are obligated to purchase pursuant to Section 1 hereof) the number of Firm
Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be purchased and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be purchased and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the five business day period stated above for the purchase of all the Shares
which the defaulting Underwriter or Underwriters agreed to
26
purchase hereunder, this Agreement shall terminate without further act or deed
and without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term Prospectus for
the purpose of this Section 9 being deemed to include the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus, as any of
the foregoing may be amended or supplemented from time to time), or arises out
of or is based upon any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or such Prospectus
or necessary to make the statements made therein not misleading, except insofar
as any such loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of any Underwriter through you to the Company expressly for use with
reference to such Underwriter in such Registration Statement or such Prospectus
or arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading, provided however, that the indemnity agreement contained in this
subsection (a) as it may relate to any untrue statement in or omission from a
Prepricing Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any partner, director or officer of any Underwriter or person
controlling such) from whom the person asserting any such loss, damage, expense,
liability or claim purchased the Shares which is the subject thereof if the
Prospectus corrected such alleged untrue statement or omission and if such
Underwriter failed to send or give a copy of the Prospectus to such person at or
prior to the written confirmation of the sale of such Shares to such person,
unless the failure is the result of noncompliance by the Company with Section
4(b) hereof.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of which
indemnity may be sought against the
27
Company pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Company in writing of the institution of such
Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify the Company shall not relieve the Company from any liability which
the Company may have to any Underwriter or any such person or otherwise, except
to the extent materially prejudiced by such omission. Such Underwriter or such
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from, additional to or in
conflict with those available to the Company (in which case the Company shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties but the Company may employ counsel to participate
in the defense thereof), in any of which events such fees and expenses shall be
borne by the Company and paid as incurred (it being understood, however, that
the Company shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). The Company shall not be liable for
any settlement of any Proceeding effected without the written consent of the
Company, but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such person from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have in good
faith requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without the Company's written consent if
(i) such settlement is entered into more than 60 business days after receipt by
the indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
28
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which the Company or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus, or arises out of or is based upon any omission
(including any omission from the information contained under the caption
"Underwriting" in the Prospectus Supplement related to actions by such
Underwriter who has engaged in gross negligence or willful misconduct) or
alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise,
except to the extent such Underwriter is materially prejudiced by such omission.
The Company or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company or of such person unless the employment of such
counsel shall have been authorized in writing by such Underwriter in connection
with the defense of such Proceeding or such Underwriter shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
29
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, other than for reasons expressly contemplated therein (e.g.
failure to deliver a final prospectus) or due to the gross negligence or willful
misconduct of the indemnified party, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent,
30
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, in no case shall any
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damage which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls any of the foregoing within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and delivery of
the Shares. The Company and each Underwriter agree promptly to notify each other
of the commencement of any Proceeding against it and against any of the officers
or directors of the Company in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or Prospectus.
10. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Warburg LLC, 299 Park Avenue, New York, NY 10171-0026, Attention:
Syndicate Department; and if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 630 Fifth
Avenue, Suite 2100, New York, NY 10111, Attention: Garo H. Armen, President,
Chief Executive Officer and Chairman with a copy to Paul Kinsella, Palmer &
Dodge LLP, 111 Huntington Avenue, Boston, Massachusetts 02199.
31
11. Information Furnished by the Underwriters. The statements
set forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the fifth, seventh, eighth, ninth and tenth paragraphs
under the caption "Underwriting" in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 3 and 9 hereof.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and you
and the Company consent to the jurisdiction of such courts and personal service
with respect thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against an Underwriter
or any indemnified party. Each Underwriter and the Company (on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding thereupon, and may be enforced in any other courts in
the jurisdiction to which the Company is or may be subject, by suit upon such
judgment.
14. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the Company and, to
the extent provided in Section 9 hereof, the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding
upon the Underwriters and the Company and their successors and assigns and any
successor or assign
32
of any substantial portion of the Company's and any of the Underwriters'
respective businesses and/or assets.
17. Miscellaneous. UBS Warburg LLC, an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending
relationships with issuers of securities underwritten or privately placed by UBS
Warburg LLC. To the extent required under the securities laws, prospectuses and
other disclosure documents for securities underwritten or privately placed by
UBS Warburg LLC will disclose the existence of any such lending relationships
and whether the proceeds of the issue will be used to repay debts owed to
affiliates of UBS Warburg LLC.
UBS Warburg LLC represents and warrants that it has the
authority to act on behalf of the other several Underwriters in connection with
this Agreement, and agrees to notify the Company promptly after the distribution
of the Shares has been completed.
18. Entire Agreement. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof.
33
If the foregoing correctly sets forth the understanding among
the Company and the Underwriters, please so indicate in the space provided below
for the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the several Underwriters.
Very truly yours,
ANTIGENICS INC.
By: /s/ Garo H. Armen
_____________________________
Name: Garo H. Armen
Title: Chairman and Chief
Executive Officer
Accepted and agreed to as of the date first above written:
UBS WARBURG LLC
ROBERTSON STEPHENS, INC.
As the Representatives of the several Underwriters
By: UBS WARBURG LLC
By: /s/ Mike Leder
_________________________
Name: Mike Leder
Title: Managing Director
By: /s/ Keith Lockwood
_________________________
Name: Keith Lockwood
Title: Associate Director
SCHEDULE A
UNDERWRITER NUMBER OF FIRM SHARES
- ----------- ---------------------
UBS Warburg LLC............................... 2,280,000
Robertson Stephens, Inc....................... 1,520,000
Adams, Harkness & Hill, Inc................... 100,000
Gruntal & Co., L.L.C.......................... 50,000
Needham & Company, Inc........................ 50,000
---------
Total.................................. 4,000,000
=========
1
SCHEDULE B
Subsidiaries
Name Jurisdiction of Incorporation
---- -----------------------------
Antigenics Inc. (formerly known as Massachusetts
Aquila Biopharmaceuticals, Inc.)
VacTex, Inc. Delaware
Aronex Pharmaceuticals, Inc. Delaware
Aronex Europe Limited United Kingdom
Triplex Pharmaceuticals Corporation Delaware
API Holding Company Delaware
1
SCHEDULE C
Directors and Officers Executing the Lock-Up Agreement
1. Garo H. Armen, Ph.D.
2. Pramod K. Srivastava, Ph.D.
3. Gamil G. de Chadarevian
4. Elma Hawkins, Ph.D
5. Russell H. Herndon Ph.D.
6. Neal Gordon, Ph.D
7. Samuel Waksal
8. Noubar Afeyan, Ph.D.
9. Tom Dechaene
10. Sanford Litvack
11. Martin Taylor
1
EXHIBIT A
Antigenics Inc.
Common Stock
($0.01 Par Value)
____________, 2002
UBS Warburg LLC
Robertson Stephens, Inc.
As the Representatives of the several Underwriters
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in
connection with the proposed Underwriting Agreement (the "Underwriting
Agreement") to be entered into by and between Antigenics Inc. (the "Company")
and you, as the Representatives of the several Underwriters, with respect to the
public offering (the "Offering") of common stock of the Company (the "Common
Stock"). Capitalized terms set forth herein and not otherwise defined shall have
the meanings set forth in the Underwriting Agreement.
In order to induce you to enter into the Underwriting
Agreement, the undersigned agrees that from the date hereof through and
including the 90th day after the date of the final prospectus supplement
relating to the Offering, the undersigned will not, directly or indirectly,
without the prior written consent of UBS Warburg LLC, (i) sell, offer to sell,
contract to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder with respect to, any Common Stock of the
Company or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock, whether any such transaction
is to be settled by
1
delivery of Common Stock or such other securities, in cash or otherwise, or
(iii) publicly announce an intention to effect any transaction specified in
clause (i) or (ii). The foregoing sentence shall not apply to (a) the sale of
any Common Stock to the Underwriters pursuant to the Underwriting Agreement, (b)
bona fide gifts, or distributions (including if the stockholder is a limited
liability company, to its members) without consideration, provided the recipient
or recipients thereof agree in writing to be bound by the terms of this Lock-Up
Letter Agreement, (c) dispositions to any trust for the direct or indirect
benefit of the undersigned and/or the immediate family of the undersigned,
provided that such trust agrees in writing to be bound by the terms of this
Lock-Up Letter Agreement, or (d) transfers which occur by operation of law, such
as the rules of intestate succession or statutes governing the effects of a
merger, provided the transferee or transferees thereof agree in writing to be
bound by the terms of this Lock-Up Letter Agreement, or (e) the exercise of any
options (including a cashless exercise, but not including a cashless exercise
that involves a related sale of securities), conversion of convertible
securities outstanding as of the date hereof (but not the disposition of the
securities into which such convertible securities convert). For purposes of this
paragraph, "immediate family" shall mean the undersigned and the spouse, any
lineal descendant, father, mother, brother or sister of the undersigned.
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, from the date hereof through and including the 90th day
after the date of the final prospectus supplement relating to the Offering, the
undersigned will not, directly or indirectly, without the prior written consent
of UBS Warburg LLC, make any demand for, or exercise any right with respect to,
the registration of Common Stock of the Company or any securities convertible
into or exercisable or exchangeable for Common Stock.
This Lock-Up Letter Agreement shall be terminated and the
undersigned shall be released from the undersigned's obligations hereunder (i)
upon the date the Company notifies you in writing that it does not intend to
proceed with the Offering, (ii) upon the date the Company publicly announces
that it is not proceeding with the Offering or (iii) upon the date the
Underwriting Agreement is terminated, for any reason, prior to the time of
purchase (as defined in Section 2 of the Underwriting Agreement).
Yours very truly,
________________________
Name:
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