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EXHIBIT 1.1
Northwest Biotherapeutics, Inc.
___________ Shares
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
_________, 2001
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UNDERWRITING AGREEMENT
__________, 2001
C. E. Unterberg, Towbin
As representative of the several Underwriters
named in Schedule A hereto
c/o C. E. Unterberg, Towbin
350 Madison Avenue
New York, New York 10017
Ladies and Gentlemen:
Northwest Biotherapeutics, 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 ________ shares (the "Firm
Shares") of common stock, $0.001 par value per share, of the Company (the
"Common Stock"). 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 _________ 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 hereby acknowledges that in connection with the
proposed offering of the Shares, it has requested C. E. Unterberg, Towbin
("CEUT") to administer a directed share program (the "Directed Share Program")
under which up to _________ Firm Shares, or ____ % of the Firm Shares, to be
purchased by you (the "Reserved Shares") shall be reserved for sale by you at
the initial public offering price to the Company's officers, directors,
employees and consultants and others having a relationship with the Company (the
"Directed Share Participants") as part of the distribution of the Shares by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. ("NASD") and all other applicable laws, rules and regulations. The
number of Shares available for sale to the general public will be reduced to the
extent that Directed Share Participants purchase Reserved Shares. You may offer
any Reserved Shares not purchased by Directed Share Participants to the general
public on the same basis as the other Shares being issued and sold hereunder.
The Company has supplied CEUT with the names, addresses and telephone numbers of
the individuals or other entities which the Company has designated to be
participants in the Directed Share Program. It is understood that any number of
those designated to participate in the Directed Share Program may decline to do
so.
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The Company has 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-1 (File No. 333-________)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the Act
with respect to the offering contemplated by such registration statement (as so
amended), is herein called the "Registration Statement," and the prospectus, in
the form filed by the Company with the Commission pursuant to Rule 424(b) under
the Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time the Registration Statement became effective, is herein called the
"Prospectus."
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 aggregate
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, in each case at a purchase price of $___ 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 or decrease the public offering
price after the initial public offering to such extent as you may determine.
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, ratably in accordance with the number of Firm Shares to be
purchased by each of them, 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
to the Company for the Firm Shares. This option may be exercised by you on
behalf of the several Underwriters at any time and from time to time on or
before the thirtieth (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"),
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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 to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by wire transfer of Federal (same-day)
funds 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 _________, 2001 (unless another time shall be
agreed to by you and the Company or unless postponed in accordance with the
provisions of Section 8 hereof). The time at which such payment and delivery are
actually made is hereinafter sometimes called the "time of purchase."
Certificates for the Firm Shares shall be delivered to you in definitive form
registered in such names and in such denominations as you shall specify on the
second business day preceding the time of purchase. For the purpose of
expediting the checking and packaging of the certificates for the Firm Shares by
you, the Company agrees to make such certificates available to you for such
purpose at least one full business day preceding the time of purchase.
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 Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form registered in such names and
in such denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking and packaging of the certificates for the Additional Shares by you, the
Company agrees to make such certificates available to you for such purpose at
least one full business day preceding the additional time of purchase.
Deliveries of the documents described in Section 6 below with
respect to the purchase of the Shares shall be made at the offices of Dewey
Ballantine LLP, 525 Middlefield Road, Suite 250, Menlo Park, California at 6:00
A.M., local time, on the date of the closing of the purchase of the Firm Shares
or the Additional Shares, as the case may be.
3. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms.
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(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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(b) The Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable. The holders of the Shares will
not be subject to personal liability by reason of being such holders. The
certificates for the Shares are in due and proper form and conform in all
material respects to the requirements of the Delaware General Corporation Law.
(c) No approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the execution, delivery and
performance by the Company of this Agreement, the issuance and sale of the
Shares contemplated hereby and by the Registration Statement, other than
registration of the Shares under the Act and under the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (collectively, the
"Exchange Act"), which have been or will be effected by the Company, 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 or under
the rules and regulations of the NASD.
(d) The Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of any Preliminary Prospectus, or
instituting proceedings for that purpose, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Act. When the Registration Statement became or becomes
effective, the Registration Statement and the Prospectus complied or will comply
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 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, in
light of the circumstances under which they were made, not misleading and the
Prospectus, any Preliminary Prospectus and any supplement thereto or prospectus
wrapper prepared in connection therewith, at their respective times of issuance
and at the time of purchase and additional time of purchase, as the case may be,
complied and will comply in all material respects with any applicable laws or
regulations of jurisdictions in which the Prospectus and such preliminary
prospectus, as amended or supplemented, if applicable, are distributed in
connection with the offer and sale of the Shares; provided, however, that the
Company makes no representation or warranty with respect to any statement
contained in 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. Neither the Company
nor, to the Company's knowledge, any of its affiliates (as defined in the Act)
has distributed directly or indirectly any offering material in connection with
the offering or sale of the Shares other than the Registration Statement, the
Preliminary Prospectus, the Prospectus or any other materials, if any, permitted
by the Act.
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(e) The audited financial statements of the Company included in the
Registration Statement and the Prospectus present fairly the financial position
and results of operations of the Company as of the dates and for the periods
indicated; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved; the pro forma financial 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 Securities 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 and prepared on a basis consistent with such financial statements and
the 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.
(f) KPMG, whose report on the financial statements of the Company is
filed with the Commission as part of the Registration Statement and Prospectus,
are independent public accountants as required by the Act.
(g) All legal or governmental proceedings, all statutes and regulations
and all contracts, leases or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement have been so described or filed as required. All
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.
(h) 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, or register pursuant to the Act, any shares of
capital stock or other equity interests; (ii) no person has any preemptive
rights, co-sale rights, rights of first refusal or other rights to purchase any
shares of Common Stock 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. No person has the right, contractual or otherwise,
to cause the Company to register under the Act any shares of capital stock or
other equity interests as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby.
(i) Immediately after the issuance and sale of the Shares to the
Underwriters, no shares of preferred stock of the Company shall be issued and
outstanding, and no holder of any shares of capital stock, securities
convertible into or exchangeable or exercisable for capital stock or options,
warrants or other rights to purchase capital stock or any other securities of
the Company shall have any existing or future right to acquire any shares of
preferred stock of the Company.
(j) The Company is not, and after the offering and sale of the Shares,
will not be, an "investment company" or an entity "controlled" by an "investment
company," as such
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terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(k) 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 and each of the holders of the Outstanding
Diluted Common Stock (as defined below). The Company has provided to CEUT and to
Dewey Ballantine LLP, counsel for the Underwriters, a complete and accurate list
of all securityholders of the Company and the number and type of securities held
by each securityholder. The Company has provided to CEUT and to Dewey Ballantine
LLP, counsel for the Underwriters, true, accurate and complete copies of all of
the Lock-Up Agreements presently in effect or effected hereby. The Company
hereby represents and warrants that it will not purport to release any of its
officers, directors or other securityholders from any Lock-Up Agreements
currently existing or hereafter effected without the prior written consent of
CEUT. For the purposes of this Agreement, "Outstanding Diluted Common Stock"
shall mean the outstanding shares of Common Stock and any shares of Common Stock
issuable upon conversion, exercise or exchange of any outstanding securities,
notes or other instruments (including options and warrants).
(l) Neither the Company nor any of its 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 stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(m) The Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of the State of Delaware and
has full power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement. The Company is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which 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 have a material adverse effect on the business, prospects,
properties, condition (financial or otherwise) or results of operation of the
Company (a "Material Adverse Effect").
(n) The capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof contained in the Registration
Statement and Prospectus. As of the date of this Agreement, the Company has an
authorized and outstanding capital stock as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase, and assuming the
receipt and application of the net proceeds as described under the section of
the Registration Statement and the Prospectus entitled "Use of proceeds," the
Company shall have an authorized and outstanding capital stock as set forth
under the heading entitled "Pro forma as adjusted" in the section of the
Registration Statement and the Prospectus entitled "Capitalization." All of the
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 in
compliance with all federal and state securities laws and have not have been
issued in violation of any preemptive right, resale
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right, right of first refusal or similar right. The shares of Common Stock
issuable upon conversion of the outstanding preferred stock of the Company upon
completion of the offering contemplated hereby have been duly and validly
authorized and reserved for issuance, and upon issuance, they will be duly and
validly issued and fully paid and nonassessable, will have been issued in
compliance with all federal and state securities laws and will not have been
issued in violation of any preemptive right, resale right, right of first
refusal or similar right.
(o) The Company does not have any subsidiaries (as defined in the Act).
(p) The Company has not violated nor is in violation of any federal,
state, local or foreign law, ordinance, administrative or governmental rule or
regulation applicable to the Company or of any decree of any court or
governmental agency or body having jurisdiction over the Company, which
violation could, individually or in the aggregate, have a Material Adverse
Effect. The Company has all necessary licenses, permits, franchises,
authorizations, consents and approvals, and made all flings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all
necessary authorizations, consents and approvals from other persons, in order to
conduct its business, and the Company is not in violation of, or in default
under, any such license, permit, franchise, authorization, consent or approval,
the effect of which could individually or in the aggregate have a Material
Adverse Effect. Without limiting the generality of the foregoing, the Company
has operated and currently is in compliance in all material respects with all
applicable U.S. Food and Drug Administration ("FDA") rules, regulations and
policies, and all deficiencies identified by the FDA with respect to the Company
or its facilities, personnel or operations as a result of FDA inspections,
audits or otherwise have been corrected.
(q) The clinical, pre-clinical and other studies and tests conducted by
or on behalf of or sponsored by the Company or its licensors or in which the
Company or its licensors or the product candidates of the Company have
participated that are described in the Prospectus or the results of which are
referred to in the Prospectus were and, if still pending, are being conducted in
accordance with standard medical and scientific research procedures. The
descriptions of the results of such studies and tests are accurate and complete
in all material respects and fairly present the data derived from such studies
and tests, and the Company 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 the Prospectus. Except to the extent
disclosed in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), the Company has operated and currently is in compliance in
all material respects with all applicable FDA rules, regulations and policies.
Except to the extent disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), the Company has not received any
notices or other correspondence from the FDA 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 Prospectus or the
results of which are referred to in the Prospectus.
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(r) The Company is not in breach or violation of, or in default under
(and no event has occurred which with notice, lapse of time or both would result
in any breach or violation of, or constitute a default under), its charter or
bylaws or other organizational documents or in the performance or observance of
any obligation, agreement, covenant or condition contained in any 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 is a party or by which it or any of its properties is bound or
affected, the effect of which could individually or in the aggregate have a
Material Adverse Effect. The execution, delivery and performance of this
Agreement and the issuance and sale of the Shares contemplated hereby and by the
Registration Statement will not conflict with, or result in any breach or
violation of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or violation of, or
constitute a default under), any provisions of the charter or bylaws or other
organizational documents of the Company or under any provision of any license,
permit, franchise, 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 is a party or by which it or its
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the Company, the result of which could individually or in the aggregate have a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares contemplated hereby and by the
Registration Statement will not conflict with, or result in any breach or
violation of, constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or violation of, or
constitute a default under) or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to any
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 is a party or by which it or any of its
properties is bound or affected, the result of which could individually or in
the aggregate have a Material Adverse Effect.
(s) Except as described in the Registration Statement and the
Prospectus, there are no private or governmental actions, suits, claims,
investigations or proceedings pending, threatened or, to the Company's
knowledge, contemplated, to which the Company or any of its directors or
officers is subject or of which any of its 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.
(t) Except as described in the Registration Statement and the
Prospectus, 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 involving a prospective material
adverse change, in the business, prospects, properties, condition (financial or
otherwise) or results of operations of the Company, (ii) any transaction that is
material to the Company, (iii) the incurrence by the Company of any obligation,
direct or contingent, and whether or not in the ordinary course of business,
which is material to the Company, (iv) any change in the capital stock or other
equity interest or outstanding indebtedness of the Company or (v) any dividend
or
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distribution of any kind declared, paid or made on the capital stock or other
equity interest of the Company. The Company does not have any contingent
obligations that are material to the Company, which are not disclosed in the
Registration Statement.
(u) Other than as set forth in the Registration Statement and the
Prospectus, or as would not individually or in the aggregate have a Material
Adverse Effect, the Company owns, possesses, licenses or has other rights to
use, all patents, trademarks, servicemarks, trade names, copyrights, trade
secrets, information, proprietary rights and processes ("Intellectual Property")
necessary for its 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 products described in the Prospectus as
being under development, without any conflict with or infringement of the
interests of others, and the Company has 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 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, the Company is not 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 has been obtained or is used or proposed to
be used by the Company in violation of any contractual obligation binding on the
Company or any of its respective directors or executive officers or, to the
Company's knowledge, any employees of the Company or otherwise in violation of
the rights of any persons, other than any violation which would not individually
or in the aggregate have a Material Adverse Effect; except as described in the
Registration Statement and the Prospectus, the Company has not received any
written or oral communications alleging that the Company has violated, infringed
or conflicted with, or, by conducting its business as described the Registration
Statement and the Prospectus, would violate, infringe or conflict with any of
the Intellectual Property of any other person or entity other than any such
violation, infringement or conflict which would not individually or in the
aggregate have a Material Adverse Effect.
(v) The Company has good and marketable title to all property (real and
personal) described in the Prospectus as being owned by it, free and clear of
all liens, claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus and except as would
not individually or in the aggregate have a Material Adverse Effect. All the
property held under lease by the Company is held thereby under valid, subsisting
and enforceable leases.
(w) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amount as are customary
in the business in which it is engaged. All policies of insurance insuring the
Company or any of its businesses, assets, employees, officers and directors are
in full force and effect, and the Company is in compliance with the terms of
such policies in all material respects. There are no claims by the Company under
any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause.
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(x) The Company has not sent or received any notice of termination
of any of the contracts or agreements referred to or described in, or
filed as an exhibit to, the Registration Statement, and no such
termination has been threatened by the Company or any other party to any
such contract or agreement.
(y) Since the date of the latest audited financial statements
included in the Prospectus, the Company has not sustained any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as
disclosed in the Prospectus or other than any loss or interference which
could individually or in the aggregate have a Material Adverse Effect.
(z) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (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 existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(aa) The Company has filed all federal, state, local and foreign
tax returns and tax forms required to be filed. Such returns and forms are
complete and correct in all material respects, and all taxes shown by such
returns or otherwise assessed that are due or payable have been paid,
except such taxes as are being contested in good faith and as to which
adequate reserves have been provided. All payroll withholdings required to
be made by the Company with respect to employees have been made. The
charges, accruals and reserves on the books of the Company in respect of
any tax liability for any year not finally determined are adequate to meet
any assessments or reassessments for additional taxes. There have been no
tax deficiencies asserted and, to the Company's knowledge, no tax
deficiency might be reasonably asserted or threatened against the Company
that could individually or in the aggregate have a Material Adverse
Effect.
(bb) The Company has not 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 individually or in the aggregate might
result in a Material Adverse Effect.
(cc) The Company has not offered, or caused the Underwriters to
offer, Shares to any person pursuant to the Directed Share Program with
the specific intent to influence unlawfully (i) a customer or supplier of
the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to
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write or publish favorable information about the Company or any of its
products or services.
In addition, any certificate signed by any officer of the Company,
delivered to the Representative or counsel for the Underwriters in connection
with the offering of the Shares shall be deemed to be a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
4. Certain Covenants. The Company hereby agrees:
(a) 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, however, 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 of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, 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
request for the purposes contemplated by the Act, and in case any
Underwriter is required to deliver a prospectus beyond 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 the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, 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, and to confirm such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or 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 use its best efforts 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 Prospectus and to file no such amendment or supplement to
which you shall object in writing;
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(e) subject to Section 4(o) hereof, 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;
(f) if necessary or appropriate, to file in a timely fashion a
registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five (5) 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 form 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 as soon as such communications, documents or information becomes
available;
(h) to advise the Underwriters promptly of the occurrence 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
so that the Prospectus would not include an untrue statement of a
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, file
(subject to Section 4(d) hereof) and furnish promptly to the
underwriters, at the Company's expense, 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;
(i) to make generally available to its security holders, and to
deliver to you, as soon as practicable an earnings statement of the
Company (which will satisfy the provisions of Section 11(a) of the Act)
covering a period of twelve (12) months beginning after the effective
date of the Registration Statement (as defined in Rule 158(c) of the
Act) and ending not later than fifteen (15) months thereafter;
(j) to furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and of cash flow of the
Company for such fiscal year, accompanied by a copy of the certificate
or report thereon of nationally recognized independent certified public
accountants);
(k) to furnish to you such number of conformed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto) as you shall
reasonably request;
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(l) to furnish to you as early as practicable prior to the time
of purchase and the additional time of purchase, as the case may be, but
not later than two (2) business days prior thereto, a copy of the latest
available quarterly or monthly unaudited interim consolidated financial
statements of the Company, which have been read by the Company's
independent certified public accountants, as stated in their letter to
be furnished pursuant to Section 6(d) 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, each
Preliminary 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) as provided by Sections 4(b) and 4(k) and otherwise
herein, (ii) the registration, issue, sale and delivery of the Shares,
(iii) the producing, word processing and/or 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) the 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
the reasonable legal fees and filing fees and other 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) all out-of-pocket expenses (including the reasonable
legal fees and filing fees and other disbursements of counsel for the
Underwriters) incurred by the Underwriters in administering the Directed
Share Program, (vi) any listing of the Shares on any securities exchange
or qualification of the Shares for quotation on the National Association
of Securities Dealers Automated Quotation National Market System
("NASDAQ") and any registration thereof under the Exchange Act, (vii)
the review of the public offering of the Shares by the NASD, including
the associated filing fees and the reasonable fees and disbursements of
counsel for the Underwriters, (viii) 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 the Representative's 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
the cost of any aircraft chartered in connection with the road show and
(ix) the performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in Section 4(h) hereof, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act;
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(p) not to sell, offer 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 options, warrants or
other rights to purchase Common Stock or any other shares of the Company
that are substantially similar to Common Stock or file 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 options, warrants or other rights to
purchase Common Stock or any other shares of the Company that are
substantially similar to Common Stock for a period of one hundred and
eighty (180) days after the date hereof (the "Lock-up Period"), without
the prior written consent of CEUT, 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 outstanding options
or warrants as disclosed in the Registration Statement and the
Prospectus to persons who have entered into Lock-Up Agreements with the
Underwriters and (iii) the issuance of employee stock options not
exercisable during the Lock-up Period pursuant to stock option plans
described in the Registration Statement and the Prospectus, and
(q) to use its best efforts to cause the Common Stock to be
listed for quotation on the Nasdaq National Market.
5. Reimbursement of Underwriters' Expenses. The Company agrees
that if the Shares are not delivered for any reason other than the termination
of this Agreement pursuant to subsections (ii), (iii) or (iv) of the second
paragraph of Section 7 hereof or the last paragraph of Section 8 hereof or the
default by one or more of the Underwriters in its or their respective
obligations hereunder, it shall, in addition to paying the amounts described in
Section 4(n) hereof, reimburse the Underwriters for all of the out-of-pocket
expenses actually incurred by the Underwriters, including the reasonable fees
and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company on the date hereof and at the time
of purchase as if made 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 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, as if made at such time), the timely performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Lane Powell Spears Lubersky 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 has been duly incorporated and is
validly existing as a corporation and is in good standing under
the laws of the State of Delaware and has full power and
authority to own, lease and operate its properties and conduct
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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 herein contemplated;
(ii) the Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction
in which 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 have a Material
Adverse Effect;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) the Shares have been duly authorized and, when
issued and delivered to and paid for by the Underwriters, will
be validly issued, fully paid and non-assessable;
(v) the Company has authorized and outstanding shares of
capital stock as set forth in the Registration Statement and the
Prospectus, 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, (B) are free of any
preemptive rights, resale rights, rights of first refusal and
similar rights under the Delaware General Corporation Law or
under any contract, agreement or instrument described in or
filed as an exhibit to the Registration Statement or otherwise
known to such counsel and (C) to such counsel's knowledge, were
issued in compliance with all applicable federal and state
securities laws; the Shares when issued will be free of any
preemptive rights, resale rights, rights of first refusal and
similar rights under the Delaware General Corporation Law or the
charter or bylaws or other organizational documents of the
Company or under any contract, agreement or instrument known to
such counsel, and the holders of the Shares will not be subject
to personal liability by reason of being such holders; the
certificates for the Shares are in due and proper form and
conform in all material respects to the requirements of the
Delaware General Corporation Law;
(vi) the capital stock of the Company, including the
Shares, conforms as to legal matters to the description thereof
contained in the Registration Statement and Prospectus;
(vii) 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) comply as to form in all
material respects with the requirements of the Act;
(viii) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under
the Act and any required filing of the Prospectus, and any
supplement thereto pursuant to Rule 424 under the Act, has been
made in the manner and within the time period required by such
Rule 424;
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(ix) no approval, authorization, consent or order of or
filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and
performance of this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated
hereby and by the Registration Statement, other than those that
have been obtained under the Act, the Exchange Act and the rules
of the Nasdaq National Market 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;
(x) the execution, delivery and performance of this
Agreement by the Company and the transactions contemplated
hereby and by the Registration Statement do not and will not
conflict with, or result in any breach or violation of, or
constitute a default under (nor constitute any event which with
notice, lapse of time, or both, would result in any breach or
violation of, or constitute a default under) or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to (A) any
provision of the charter or bylaws or other organizational
documents of the Company, (B) any provision of any license,
permit, franchise, indenture, mortgage, deed of trust, note,
bank loan or credit agreement or other evidence of indebtedness,
or any lease, contract or other agreement or instrument filed as
an exhibit to the Registration Statement or otherwise known to
such counsel issued to the Company, or to which the Company is a
party or by which it may be bound or affected, or to which any
of the property or assets of the Company is subject or may be
bound or affected, (C) any federal, state, local or foreign law,
regulation or rule or (D) any decree, judgment or order
applicable to the Company, in each case known to such counsel;
(xi) to such counsel's knowledge, the Company is not in
violation of its charter or bylaws or other organizational
documents, and the Company is not 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), any license, permit,
franchise, 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 is or was a party or by which it or its properties may
be bound or affected or in violation of any federal, state,
local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company, the effect of which would
individually or in the aggregate have a Material Adverse Effect;
(xii) to such counsel's knowledge, there are no
contracts, licenses, agreements, leases or other documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be described in the Prospectus
which have not been so filed or described;
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(xiii) to such counsel's knowledge, there are no private
or governmental actions, suits, claims, investigations or
proceedings pending, threatened or contemplated to which the
Company or any of its directors or officers is subject or of
which any of its 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;
(xiv) the Company is not, and after the offering and
sale of the Shares, will not be, an "investment company" or an
entity controlled by an "investment company," as such term is
defined in the investment Company Act;
(xv) those statements to the Prospectus that are
descriptions of contracts, agreements or other legal documents
or of legal proceedings, or refer to statements of law or legal
conclusions, are accurate in all material respects and present
fairly the information required to be shown; and
(xvi) 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 or otherwise
known to such counsel, to cause the Company to register under
the Act any shares of capital stock or other equity interests as
a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated hereby; and
to such counsel's knowledge, except as described in the
Registration Statement and Prospectus, no person is entitled to
registration rights with respect to shares of capital stock or
other securities of the Company.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives 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 is not
passing upon and does not assume 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), on the basis of the foregoing nothing has come to the attention
of such counsel that causes such counsel to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment 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 or any
supplement thereto at the date of such Prospectus or such supplement, and at all
times up to and including the time of purchase or 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 (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus).
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(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 Townsend
& Townsend & Crew, patent counsel to the Company, with respect to
patents and proprietary rights, 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
has valid license rights or clear title to the Intellectual
Property used in the Company's business or described in the
Registration Statement and Prospectus as owned by or licensed to
the Company ("Company Intellectual Property"), and there are no
rights of third parties to any Company Intellectual Property
that interfere in any material respect with the Company's use
of, or right to use, the Company Intellectual Property; (B)
there is no infringement or other violation by third parties of
any of the Company Intellectual Property; (C) there is no
infringement or other violation by the Company of Intellectual
Property owned by any third party ("Third Party IP Rights"); (D)
there is no pending or threatened action, suit, proceeding or
claim that the Company infringes or otherwise violates, or would
infringe or otherwise violate upon commercialization of its
products and product candidates described in the Prospectuses,
and any Third Party IP Rights; (E) there is no patent or patent
application which contains claims that dominate or may dominate
any Company Intellectual Property or that infringes with the
issued or pending claims of any Company Intellectual Property;
and (F) there is no pending or threatened action, suit,
proceeding or claim challenging the rights of the Company in or
to, or challenging the scope of, any Company Intellectual
Property, and such counsel is unaware of any facts which would
form a reasonable basis for any such claim;
(ii) to such counsel's knowledge, the patent
applications of the Company 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, any prior act that has not been disclosed
to the U.S. Patent and Trademark Office, or any other material
fact with respect to the patent applications of the Company
presently on file 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;
(iii) the commercial products and product candidates of
the Company described in the Registration Statement and the
Prospectus read on the claims contained in the patents and
patent applications owned by the Company described in the
Registration Statement and the Prospectus; and
(iv) the statements in the Registration Statement and
the Prospectus referencing intellectual property matters,
insofar as such statements constitute summaries of legal
matters, contracts, agreements, documents or proceedings
referred to therein, or refer to statements of law or legal
conclusions, are in all
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material respects accurate and complete statements or summaries
of the matters therein set forth. Nothing has come to such
counsel's attention that causes them to believe that such above
described portions of the Registration Statement, 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 of necessary to make
the statements therein not misleading, or that such above
described portions of the Prospectus and at 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 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 Morgan
Lewis & Bockius LLP, regulatory 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 the statements in the Registration Statement
and the Prospectus referencing regulatory matters, insofar as such
statements constitute summaries of food and drug regulatory matters with
respect to the Company, as of the date of the Registration Statement and
the Prospectus and as of the date of such opinion, are in all material
respects accurate and complete statements or summaries of the matters
therein set forth, and nothing has come to such counsel's attention that
causes such counsel to believe that the above-described portions of the
Registration Statement and the Prospectus, at the date of the
Registration Statement and the Prospectus or at the date of such
opinion, contained or contains an untrue statement of material fact or
omitted or omits 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.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable 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 such other related matters as the Underwriters may require.
(e) You shall have received from KPMG, letters dated,
respectively, 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 by Dewey Ballantine LLP, counsel for the
Underwriters.
(f) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
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(g) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus 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 date of this Agreement, unless a later
time (but not later than 5:30 P.M., New York City time, on the second
full business day after the date of this Agreement) shall be agreed to
by the Company and you in writing or by telephone, confirmed in writing,
provided, however, that the Company and you and any group of
Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least fifty percent (50%) of the Firm Shares may from
time to time agree on a later date.
(h) 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.
(i) 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 specifically
identified in the Registration Statement and Prospectus), in the
business, prospects, properties, condition (financial or otherwise) or
results of operations of the Company shall occur or become known and
(ii) no transaction which is material and unfavorable to the Company
shall have been entered into by the Company.
(j) The Company will, at the time of purchase or additional time
of purchase, as the case may be, deliver to you a certificate of its
President and of its Chief Financial Officer or Chief Operating Officer
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 (g), (h) and (i) of this Section
6 have been met.
(k) You shall have received signed Lock-Up Agreements, dated the
date of this Agreement, from each of the persons described in Section
3(k) hereof.
(l) 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.
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(m) The Shares shall have been approved for listing for quotation
on the Nasdaq National Market, 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.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, 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 fifty percent (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 Prospectus, there has
been any material adverse change, or any development involving a prospective
material adverse change (other than as specifically identified in the
Registration Statement and Prospectus) in the business, prospects, properties,
condition (financial or otherwise) or results of operations of the Company 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 the Nasdaq National
Market shall have been suspended or limitations or minimum prices shall have
been established on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market, or (iii) if a banking moratorium shall have been
declared either by the United States or New York State authorities, or (iv) if
the United States shall have declared war to 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.
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 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 take up 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 take up and pay for does not exceed
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ten percent (10%) of the total number of Firm Shares, the non-defaulting
Underwriters shall take up 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 taken up 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 taken up 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 (5) business
days in order that any necessary changes in the Registration Statement and
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 ten percent (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 (5) business day period stated above for the
purchase of all the Shares which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated 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 (i) any untrue statement or
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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 10 being deemed to
include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based
upon any omission or alleged omission to state a material fact required
to be stated in ether such Registration Statement or 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 or (ii) any untrue statement or alleged
untrue statement made by the Company in Section 3 of this Agreement or
the failure by the Company to perform when and as required any agreement
or covenant contained herein or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual
materials provided by the Company or based upon written information
furnished by or on behalf of the Company including, without limitation,
slides, videos, films, tape recordings, used in connection with the
marketing of the Shares or (iv) the Directed Share Program, provided
that the Company shall not be responsible for any loss, damage, expense,
liability, or claim that is finally judicially determined to have
resulted from the bad faith or gross negligence of the Underwriters in
conducting the Directed Share Program
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 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. 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), 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).
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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 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 sixty (60) 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 thirty (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.
(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, jointly or severally, 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.
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.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or 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 have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
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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
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 sixty (60) 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 thirty (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.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) or (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or
claims referred to therein, 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
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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, 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, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten
by such Underwriter and distributed to the public were offered to the
public exceeds the amount of any damage which such Underwater 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 to this Agreement shall remain to 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 the Company 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, in the case of the Company, against any of the Company's officers
or directors 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 C.
E. Unterberg, Towbin, 350 Madison Avenue, New York, New York 10017, Attention:
General Counsel 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 21720 23rd
Drive SE, Suite, Bothell, Washington 98021, Attention Mr. Daniel O. Wilds.
11. Information Furnished by the Underwriters. The statements set
forth in the ___________ paragraph on the cover page of the Prospectus and the
statements set forth in the _________ paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information
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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 the
Company consents 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 CEUT or any indemnified
party. Each of CEUT and the Company (on their respective behalfs and, to the
extent permitted by applicable law, on behalf of their respective 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 upon the Company and may be enforced in any other
courts in the jurisdiction of 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 and 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. Delivery of an executed counterpart by facsimile
shall be effective as delivery of a manually executed counterpart thereof
16. Successors and Assigns. This Agreement shall be binding upon
the Underwriters, the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's, and any of the
Underwriters' respective businesses and/or assets.
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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 Underwriters, severally
Very truly yours,
NORTHWEST BIOTHERAPEUTICS, INC
By:____________________________________
Name:
Title:
Accepted and agreed to as of the
date first above written, on behalf of
themselves and the other several Underwriters
named in Schedule A
C.E. UNTERBERG, TOWBIN
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
C.E Unterberg, Towbin.......................................
---------------
Total......................................
===============
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