Exhibit 1.1
March 13, 2003
Henry E. Blair
Chairman and CEO
Dyax Corp.
300 Technology Square
Cambridge, MA 02139
Dear Henry:
This is to confirm the agreement (the "Agreement") between Pacific Growth
Equities, Inc. ("PGE") and DYAX Corp. ("the Company") as follows:
1. SERVICES TO BE RENDERED. The Company hereby retains PGE as the Company's
exclusive placement agent in connection with the placement (the
"Placement") by the Company of up to 5,000,000 shares of common stock (the
"Shares"). PGE agrees that it will exercise its commercially reasonable
efforts to find suitable purchasers of the Shares. Prior to soliciting any
investors, PGE shall notify the Company and receive the Company's oral
permission to approach such investors (the "Designated Investors"). It is
understood that the decision to proceed with, and the final terms of, the
Placement will depend on satisfactory results of PGE's due diligence
investigation (including reviews of legal, accounting and operational
issues) of the Company's continuing business prospects and the prevailing
securities market conditions at the time of the Placement. It is anticipated
that the Placement process will commence promptly. PGE disclaims any
agreement, expressed or implied, in this Agreement or otherwise, that it
will be successful in placing the Shares.
2. OFFERING MATERIALS. The Company will provide to PGE copies of the
prospectus dated May 3, 2002 contained in the registration statement on
Form S-3 dated April 24, 2002 (Registration No. 333-86904) (the Registration
Statement") and, when available, copies of the prospectus supplement issued
in connection with the Placement (and any amendments or supplements thereto)
which will be provided to potential purchasers of the Shares (the "Offering
Materials"). The Company represents that the Offering Materials will not
(when read together), as of the final closing date of the Placement (the
"Closing Date"), contain any untrue statement of material fact or omit to
state any material fact required to be stated therein, or necessary to make
the statements contained therein, in light of the circumstances under which
they were made, not misleading. The Company agrees to cooperate with PGE in
connection with the offering of the Shares, including making appropriate
officers or principals of the Company available to PGE for meetings with
prospective purchasers of the Shares. The Company and PGE will prepare
definitive transaction documents for use in the Placement, including a
Common Stock Purchase Agreement, which shall be in form and substance
reasonably satisfactory to PGE.
HENRY E. BLAIR
Page 2
PGE recognizes and acknowledges that it is not authorized to make any
representations and statements to any potential purchaser other than and to
the extent that such representations and statements are contained in the
Offering Materials or otherwise have been made by the Company to PGE with
the intent and expectation that they be made to potential purchasers.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents,
warrants and agrees that:
a. Except for the issuance of stock options and common stock issuable upon
exercise of outstanding options and warrants, the Company will not, from
the date of this letter until the final closing of the Placement or the
termination of this Agreement before such a closing, offer to sell,
solicit offers to purchase, or sell any securities of the Company without
PGE's written consent;
b. The issuance of all of the Shares has been registered on the Registration
Statement and, as of the Closing Date, the Shares will be listed on the
Nasdaq National Market. In connection with the transactions contemplated
by this Agreement, the Company will make any and all required filings
under any and all applicable federal and state securities laws;
c. The Company has all requisite corporate power and authority to execute
and perform this Agreement. All corporate action necessary for the
authorization, execution, delivery and performance of this Agreement has
been taken. This Agreement constitutes a valid and binding obligation of
the Company; and
d. The execution and performance of this Agreement by the Company and the
offer and sale of the Shares in the Placement will not violate any
provision of the articles of incorporation or bylaws of the Company or
any agreement or other instrument to which the Company is a party or by
which it is bound. Any necessary approvals, governmental and private,
will be obtained by the Company prior to the closing.
4. EXPIRATION OF ENGAGEMENT. The engagement of PGE as placement agent under
Section 1 shall expire on the Closing Date. The expiration of such
engagement shall not affect the other provisions of this Agreement, all of
which shall remain in effect.
5. PLACEMENT AGENT FEES. In consideration for the services rendered by PGE
hereunder, the Company agrees to pay PGE on the Closing Date, a COMMISSION
of 6.62% of the gross proceeds to the Company on all sales of Shares made in
the Placement, other than sales of Shares to Loeb Partners. The Company and
PGE agree that no commission will be paid on sales of Shares to Loeb
Partners. In addition, the Company agrees to reimburse PGE for all
reasonable out-of-pocket expenses incurred by PGE in connection with the
Placement including the reasonable fees and expenses of PGE's counsel, up to
a maximum of $10,000.
HENRY E. BLAIR
Page 3
6. TRANSACTION EXPENSES. Except as provided in Section 5 hereto, the Company
agrees to bear all of the expenses associated with the transactions
contemplated by this Agreement, including, without limitation, all printing
and mailing costs, all blue sky fees and costs (if any) and the fees and
costs of Company's counsel.
7. OBLIGATIONS LIMITED. PGE shall be under no obligation hereunder to make an
independent appraisal of assets or investigation or inquiry as to any
information regarding, or any representations of, the Company and shall have
no liability hereunder in regard thereto.
8. INDEMNIFICATION. The Company agrees to indemnify and hold harmless PGE, its
members, affiliates, agents, servants and employees and each person, if any,
who controls PGE within the meaning of section 20(a) of the SECURITIES
Exchange Act of 1934 (the "Exchange Act"), against any and all loss,
liability, claim, damage and expenses reasonably incurred by each
or any of them in investigations, preparing to defend or defending against
any such action, proceeding or claim (whether commenced or threatened) or in
connection with any investigation or inquiry (i) arising out of, related to
or based upon any untrue or alleged untrue statement of a material fact or
the omission or alleged omission of a material fact required to be stated or
necessary to make not misleading any statements contained in the Offering
Materials or the Common Stock Purchase Agreement and/or (ii) otherwise
arising out of, related to or based upon any acts or omissions of the
Company, its directors, officers, employees, affiliates and/or agents (other
than PGE) in connection with the transactions contemplated by this
Agreement; PROVIDED, HOWEVER, that the Company will not be liable under this
Section 8(a) to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering Materials in
reliance upon and in conformity with written information furnished to the
Company by PGE specifically for use therein. This indemnity shall be in
addition to any liability the Company may have to PGE otherwise. The Company
agrees promptly to notify PGE of the commencement of any litigation or
proceedings against the Company or any of its officers, director, employees,
affiliates and/or agents in connection with the Placement of the Shares or
in connection with the Offering Materials.
If any action, claim or investigation (collectively, a "Claim") is brought
against an indemnified party, then such party promptly shall notify the
indemnifying party in writing of such action. Failure by such person to so
notify the indemnifying party shall not relieve the indemnifying party from
its obligation to indemnify, except to the extent that such failure to
notify results in the forfeiture by the indemnifying party of substantive
rights or defenses. If an indemnified party seeks indemnification hereunder
with respect to any Claim brought by a third party, the indemnifying party
shall be entitled to assume the defense of such Claim, such indemnified
party shall have the right to participate in the defense of such Claim and
to retain its own counsel but the indemnifying party shall not be liable for
any legal fees or expenses subsequently incurred by such indemnified party
in connection with the defense thereof, unless (i) the indemnifying party
has agreed to pay such fees and expenses, (ii) the indemnifying party shall
have failed to employ counsel reasonably satisfactory to such indemnified
party in a timely manner or (iii) such indemnified party shall have
reasonably determined that representation of such indemnified party by
counsel provided by the indemnifying party pursuant to the foregoing would
be inappropriate due to actual or potential conflicting interests between
HENRY E. BLAIR
Page 4
the indemnifying party and such indemnified party, including without
limitation in the event the indemnified party shall have reasonably
determined that there are legal defenses available to the indemnified party
which are different from or additional to those available to the
indemnifying party. The indemnifying party shall not be liable for any
settlement or any Claim effected without its written consent (which consent
shall not be unreasonably withheld or delayed).
9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement sets forth the entire
understanding of the parties and supersedes any prior communications,
understanding and agreements BETWEEN the parties. This Agreement cannot be
changed, nor can any of its provisions be waived, except by writing signed
by all parties. This Agreement shall be governed by the laws of the State of
California without regard to its conflict of laws provisions.
10. TERMINATION. This Agreement may be terminated by either party at any time
prior to the Closing Date of the Placement upon written notice to the other
party.
11. SURVIVAL. The provisions of Sections 5 (including the Company's obligation
to reimburse PGE for its out-of-pocket expenses) and 8 hereof shall survive
any termination of this Agreement; provided that the Company's obligation to
pay fees to PGE pursuant to Section 5 shall not survive any termination of
this Agreement prior to the Closing Date of the Placement by PGE other than
due to the Company's breach of any term of this Agreement or the Company's
failure to satisfy a condition to closing.
12. NOTICES. Any notice, consent or other communication given pursuant to this
Agreement shall be in writing and shall be effective when (i) delivered
personally, (ii) sent by telex or telecopier (with RECEIPT confirmed),
provided that a copy is mailed registered mail, return receipt requested, or
(iii) when received by the addressee, if sent by Express Mail, Federal
Express or other express delivery service (receipt requested), in each case
to the appropriate addressee set forth below:
If to PGE: Pacific Growth Equities, Inc.
Four Maritime Plaza
San Francisco, CA 94111
Attn: George J. Milstein
If to the Company: Henry E. Blair
Chairman & CEO
300 Technology Square
Cambridge, MA 02139
HENRY E. BLAIR
Page 5
If the foregoing correctly sets forth your understanding, please so
indicate by signing and returning to us the enclosed copy of this letter.
Sincerely,
PACIFIC GROWTH EQUITIES, INC.
By: /s/ George J. Milstein Date: March 13, 2003
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George J. Milstein
Senior Managing Director
Confirmed and Agreed to:
COMPANY
By: /s/ Henry E. Blair Date: March 13, 2003
------------------------------------ -----------------------------
Henry E. Blair
Chairman & Chief Executive Officer