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Exhibit 1
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REGENERON PHARMACEUTICALS, INC.
(a New York corporation)
7,000,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: March 19, 2001
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TABLE OF CONTENTS
PAGE
SECTION 1. Representations and Warranties............................................. 3
(a) Representations and Warranties by the Company............................. 3
(i) Compliance with Registration Requirements......................... 3
(ii) Incorporated Documents............................................ 5
(iii) Independent Accountants........................................... 5
(iv) Financial Statements.............................................. 5
(v) No Material Adverse Change in Business............................ 5
(vi) Good Standing of the Company...................................... 5
(vii) Good Standing of Subsidiaries..................................... 6
(viii) Capitalization.................................................... 6
(ix) Authorization of Agreement........................................ 6
(x) Authorization and Description of Securities....................... 6
(xi) Absence of Defaults and Conflicts................................. 6
(xii) Absence of Labor Dispute.......................................... 7
(xiii) Absence of Proceedings............................................ 7
(xiv) Accuracy of Exhibits.............................................. 8
(xv) Possession of Intellectual Property............................... 8
(xvi) Absence of Further Requirements................................... 8
(xvii) Possession of Licenses and Permits................................ 8
(xviii) Title to Property................................................. 9
(xix) Environmental Laws................................................ 9
(xx) Investment Company Act............................................ 10
(xxi) FDA and PTO Proceedings........................................... 10
(b) Representations and Warranties by the Selling Shareholder................. 10
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(i) Accurate Disclosure............................................... 10
(ii) Authorization of Agreements....................................... 10
(iii) Security Entitlement.............................................. 10
(iv) Absence of Manipulation........................................... 11
(v) Absence of Further Requirements................................... 11
(vi) No Association with NASD.......................................... 11
(c) Officer's Certificates.................................................... 11
SECTION 2. Sale and Delivery to Underwriters; Closing................................. 11
(a) Initial Securities and Selling Shareholder Initial Securities............. 11
(b) Option Securities......................................................... 12
(c) Payment................................................................... 12
(d) Denominations; Registration............................................... 13
SECTION 3. Covenants of the Company................................................... 13
(a) Compliance with Securities Regulations and Commission Requests............ 13
(b) Filing of Amendments...................................................... 14
(c) Delivery of Registration Statements....................................... 14
(d) Delivery of Prospectuses.................................................. 14
(e) Continued Compliance with Securities Laws................................. 14
(f) Blue Sky Qualifications................................................... 15
(g) Rule 158.................................................................. 15
(h) Use of Proceeds........................................................... 15
(i) Listing................................................................... 15
(j) Restriction on Sale of Securities......................................... 15
(k) Reporting Requirements.................................................... 16
SECTION 4. Payment of Expenses........................................................ 16
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(a) Expenses.................................................................. 16
(b) Expenses of the Selling Shareholder....................................... 16
(c) Termination of Agreement.................................................. 16
(d) Allocation of Expenses.................................................... 17
SECTION 5. Conditions of Underwriters' Obligations.................................... 17
(a) Effectiveness of Registration Statement................................... 17
(b) Opinion of Counsel for Company............................................ 17
(c) Opinion of Counsel to the Selling Shareholder............................. 17
(d) Opinion of Counsel for Underwriters....................................... 18
(e) Officers' Certificate..................................................... 18
(f) Certificate of Selling Shareholder........................................ 18
(g) Accountants' Comfort Letter............................................... 18
(h) Bring-down Comfort Letter................................................. 19
(i) Approval of Listing....................................................... 19
(j) No Objection.............................................................. 19
(k) Lock-up Agreements........................................................ 19
(l) Conditions to Purchase of Option Securities............................... 19
(i) Officers' Certificate............................................. 19
(ii) Opinion of Counsel for Company.................................... 19
(iii) Opinion of Counsel for Underwriters............................... 19
(iv) Bring-down Comfort Letter......................................... 19
(m) Additional Documents...................................................... 20
(n) Termination of Agreement.................................................. 20
SECTION 6. Indemnification............................................................ 20
(a) Indemnification of Underwriters........................................... 20
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(b) Indemnification of Company, Directors and Officers and Selling Shareholder 22
(c) Actions against Parties; Notification..................................... 22
(d) Settlement without Consent if Failure to Reimburse........................ 23
(e) Other Agreements with Respect to Indemnification.......................... 23
SECTION 7. Contribution............................................................... 23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery............. 25
SECTION 9. Termination of Agreement................................................... 25
(a) Termination; General...................................................... 25
(b) Liabilities............................................................... 25
SECTION 10. Default by One or More of the Underwriters................................ 25
SECTION 11. Notices................................................................... 26
SECTION 12. Parties................................................................... 26
SECTION 13. GOVERNING LAW AND TIME.................................................... 26
SECTION 14. Effect of Headings........................................................ 26
SCHEDULES
Schedule A - List of Underwriters Sch A-1
Schedule B - List of Sellers Sch B-1
Schedule C - Pricing Information Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-up Sch D-1
EXHIBITS
Exhibit A-1 - Form of Opinion of General Counsel to Company A-1
Exhibit A-2 - Form of Opinion of Company's Counsel A-2
Exhibit B - Form of Opinion for Special Intellectual Property Counsel B-1
Exhibit C -1 - Form of Opinion of Counsel to Selling Shareholder C-1
Exhibit C-2 - Form of Opinion of General Counsel to Selling Shareholder C-2
Exhibit D - Form of Lock-up Letter D-1
Exhibit E - Information Provided by Selling Shareholder E-1
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REGENERON PHARMACEUTICALS, INC.
(a New York corporation)
7,000,000 Shares of Common Stock
(Par Value $0.001 Per Share)
PURCHASE AGREEMENT
March 19, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
as Representative of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Regeneron Pharmaceuticals, Inc., a New York corporation (the
"Company"), and Amgen Inc., a Delaware corporation (the "Selling Shareholder"),
confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as representative (in such
capacity, the "Representative"), with respect to (i) the issue and sale by the
Company and the sale by the Selling Shareholder, acting severally and not
jointly, and the purchase by the Underwriters, acting severally and not jointly,
of the respective numbers of shares of Common Stock, par value $0.001 per share,
of the Company ("Common Stock") set forth in said Schedule A, and (ii) the grant
by the Company to the Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of 1,050,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 7,000,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters, of which 6,500,000 shall be issued and sold by
the Company, and of which 500,000 (the "Selling Shareholder Initial Securities")
shall be sold by the Selling Shareholder in accordance with Schedule B hereto,
and all or any part of the 1,050,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities". The Company acknowledges and
agrees that the Selling Shareholder Initial Securities are "Registrable Shares"
as defined in the Class D Convertible
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Preferred Stock Purchase Agreement dated as of August 31, 1990 (the "Stock
Purchase Agreement") between the Company and the Selling Shareholder and the
Registration Rights Agreement dated as of April 15, 1996 (the "Registration
Rights Agreement") between the Company and the Selling Shareholder, that the
Selling Shareholder Initial Securities are being registered pursuant to Section
8.4 of the Stock Purchase Agreement and Section 4 of the Registration Rights
Agreement and that such Selling Shareholder is entitled to the benefits of the
Stock Purchase Agreement and the Registration Rights Agreement with respect to
such Selling Shareholder Initial Securities and the registration of the Selling
Shareholder Initial Securities.
The Company and the Selling Shareholder understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-54326) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. The information included
in such prospectus, that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such registration
statement at the time it became effective pursuant to paragraph (b) of Rule 430A
is referred to as "Rule 430A Information". Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information, as applicable, is
herein called the "Registration Statement". Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement", and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished
to the Underwriters for use in connection with the offering of the Securities is
herein called the "Prospectus". For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained", "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or
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supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter and the Selling Shareholder, as of
the date hereof, as of the Closing Time referred to in Section 2(c) hereof, and
as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and
agrees with each Underwriter and the Selling Shareholder, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and 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. Neither the
Prospectus nor any amendments or supplements thereto at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the
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electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
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(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission (for so long as a prospectus is required to be delivered
in connection with the sale of the Securities), complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery), did not and 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.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the respective financial
positions of the Company and Amgen-Regeneron Partners (as defined
below) at the dates indicated and the statement of operations,
stockholders' equity (or statement of changes in partners' capital, in
the case of Amgen-Regeneron Partners) and cash flows of the Company and
Amgen-Regeneron Partners for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change or a development known to the
Company involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings or business
affairs of the Company, whether or not arising in the ordinary course
of business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or Amgen-Regeneron Partners,
other than those in the ordinary course of business, which are material
with respect to the Company and Amgen -- Regeneron Partners considered
as one enterprise, and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of New York and has corporate power and
authority to own, lease and operate its properties
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and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The Company has no
corporate subsidiaries. Amgen-Regeneron Partners, a Delaware general
partnership ("Amgen-Regeneron Partners") formed by the Company and
Amgen Inc., has been duly formed, is validly existing as a general
partnership under the laws of the jurisdiction of its formation, has
the legal power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a Material
Adverse Effect.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company, including the Selling
Shareholder Initial Securities to be purchased by the Underwriters from
the Selling Shareholder, have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares
of capital stock of the Company, including the Selling Shareholder
Initial Securities to be purchased by the Underwriters from the Selling
Shareholder, was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The Initial
Securities and the Option Securities, if any, to be purchased by the
Underwriters from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued,
fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same; and no holder of the Initial Securities or the
Option Securities, if any, will be subject to personal liability by
reason of being such a holder; and the issuances of the Initial
Securities and the Option Securities, if any, are not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor Amgen-Regeneron Partners is in violation of its charter or by-laws
or the partnership agreement,
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as the case may be, or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or
Amgen-Regeneron Partners is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
Amgen-Regeneron Partners is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement by the Company and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Initial Securities and the Option Securities
(if any) and the use of the proceeds from the sale of the Initial
Securities and the Option Securities (if any) as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
Amgen-Regeneron Partners pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or the partnership agreement of
Amgen-Regeneron Partners, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or Amgen-Regeneron Partners or any of
their assets, properties or operations except for any such violation
that could not be expected to result in a Material Adverse Effect. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or Amgen-Regeneron Partners.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or Amgen-Regeneron Partners exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or Amgen-Regeneron Partners' principal suppliers, manufacturers,
customers or contractors, which, in either case, may reasonably be
expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or Amgen-Regeneron Partners, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all
pending legal or
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governmental proceedings to which the Company or Amgen-Regeneron
Partners is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and
Amgen-Regeneron Partners owns or possesses, or will use their best
efforts to acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them. Except as disclosed in the Prospectus, there is no
litigation or other proceeding pending or, to the Company's knowledge,
threatened and no claims are presently being asserted by any third
party challenging or questioning the ownership, validity,
enforceability of the Company's or Amgen-Regeneron Partners' right to
use or own any Intellectual Property or asserting that the use of any
Intellectual Property by the Company or Amgen-Regeneron Partners or the
operation of the business of the Company or Amgen-Regeneron Partners
infringes upon or misappropriates the Intellectual Property of any
third party, other than infringements which would not be reasonably
likely to have a Material Adverse Effect and the Company is not
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or Amgen-Regeneron
Partners therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulation or state securities laws.
(xvii) Possession of Licenses and Permits. The Company and
Amgen-Regeneron Partners possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and Amgen-Regeneron Partners are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse
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Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor Amgen-Regeneron Partners has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xviii) Title to Property. The Company and Amgen-Regeneron
Partners have good and marketable title to all real property owned by
the Company and Amgen-Regeneron Partners and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or Amgen-Regeneron
Partners; and all of the leases and subleases material to the business
of the Company and Amgen-Regeneron Partners, considered as one
enterprise, and under which the Company or Amgen-Regeneron Partners
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor Amgen-Regeneron Partners has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or Amgen-Regeneron Partners
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or Amgen-Regeneron Partners to
the continued possession of the leased or subleased premises under any
such lease or sublease.
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor Amgen-Regeneron Partners is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and Amgen-Regeneron Partners
have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company or
Amgen-Regeneron Partners and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body
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or agency, against or affecting the Company or Amgen-Regeneron Partners
relating to Hazardous Materials or any Environmental Laws.
(xx) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity controlled
by an "investment company" as such terms are defined in The Investment
Company Act of 1940, as amended (the "1940 Act").
(xxi) FDA and PTO Proceedings. To the Company's knowledge,
except as disclosed in the Prospectus, there are no rulemaking or
similar proceedings before the U.S. Food and Drug Administration, the
U.S. Patent and Trademark Office or the European Patent Office which
affect or involve the Company or Amgen-Regeneron Partners or any of the
processes or products which the Prospectus discloses the Company or
Amgen-Regeneron Partners has developed, is developing or proposes to
develop or uses or proposes to use which, if the subject of an action
unfavorable to the Company or Amgen-Regeneron Partners, could have a
Material Adverse Effect.
(b) Representations and Warranties by the Selling Shareholder.
The Selling Shareholder represents and warrants to each Underwriter as of the
date hereof and as of the Closing Time and agrees with each Underwriter, as
follows:
(i) Accurate Disclosure. The information set forth in Exhibit
E is true and accurate.
(ii) Authorization of Agreements. The Selling Shareholder has
the full right, power and authority to enter into this Agreement and to sell,
transfer and deliver the Selling Shareholder Initial Securities hereunder. The
execution and delivery of this Agreement and the sale and delivery of the
Selling Shareholder Initial Securities and the consummation of the transactions
contemplated herein and compliance by the Selling Shareholder with its
obligations hereunder have been duly authorized by the Selling Shareholder and
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Selling Shareholder Initial Securities or any property or assets of the
Selling Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other agreement or
instrument to which the Selling Shareholder is a party and which has been filed
as an exhibit to the Selling Shareholder's Form 10-K for the fiscal year ended
December 31, 2000, nor will such action result in any violation of the
provisions of the charter or by-laws of the Selling Shareholder, or any
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Shareholder or any of its
properties except to the extent that such action does not result in a material
adverse change in the financial condition of the Selling Shareholder.
(iii) Security Entitlement. The Selling Shareholder has full
right, power and authority to hold and transfer its interests in its security
entitlement (within the meaning of Section 8-501 of the Uniform Commercial Code
as in effect in the State of New York (the
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"NYUCC")), with respect to the Selling Shareholder Initial Securities to be sold
by the Selling Shareholder hereunder. Upon the payment of the purchase price for
the Selling Shareholder Initial Securities and the crediting by DTC of the
Selling Shareholder Initial Securities to the securities account of the
Representative with DTC, each of the Underwriters will acquire a valid security
entitlement (within the meaning of Section 8-501 of the NYUCC) in respect of the
Selling Shareholder Initial Securities to be purchased by it, and no action
(whether framed in conversion, replevin, constructive trust, equitable lien, or
other theory) based on an adverse claim to such Selling Shareholder Initial
Securities may be successfully asserted against the Underwriters under the
NYUCC.
(iv) Absence of Manipulation. The Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Selling Shareholder Initial
Securities.
(v) Absence of Further Requirements. No filing with (other
than filings made pursuant to the 1934 Act), or consent, approval,
authorization, order, registration, qualification or decree of, any court or
governmental authority or agency of the United States or the States of
California or New York, is necessary or required for the performance by the
Selling Shareholder of its obligations hereunder, or in connection with the sale
and delivery of the Selling Shareholder Initial Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except such as
may have previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(vi) No Association with NASD. Neither the Selling Shareholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
or has any other association with (within the meaning of Article I, Section 1(m)
of the By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any
officer of the Company delivered to the Representative, the Selling Shareholder
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter and the Selling Shareholder as to the matters
covered thereby; and any certificate signed by or on behalf of the Selling
Shareholder as such and delivered to the Representative pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the Selling
Shareholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities and Selling Shareholder Initial
Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company and the
Selling Shareholder, severally and not jointly, agree to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Selling Shareholder, at the
price per share set forth in Schedule C, that proportion of the number of
Initial Securities set forth in Schedule B opposite
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the name of the Company or Selling Shareholder, as the case may be, which the
number of Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representative in
its sole discretion shall make to eliminate any sales or purchases of fractional
securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to 1,050,000 additional
shares of Common Stock as set forth in Schedule C, at the price per share set
forth in Schedule C. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representative to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the
Representative, but shall not be earlier than three full business days prior to
or later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined, provided, however,
if the option hereby granted is exercised at least one business day prior to the
Closing Time, the Date of Delivery shall be the Closing Time. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as the Representative in its discretion shall make to eliminate any
sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for the Initial
Securities to be sold by the Company and the Selling Shareholder Initial
Securities, and delivery of the certificates for the Initial Securities to be
sold by the Company shall be made at the offices of Shearman and Sterling, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Representative, the Company and the Selling Shareholder, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative, the Company and the Selling Shareholder (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representative and the Company, on each Date of Delivery as specified in the
notice from the Representative to the Company.
Payment shall be made to the Company and the Selling
Shareholder by wire transfer of immediately available funds to bank accounts
designated by the Company and the
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Selling Shareholder, as the case may be, against (i) in the case of the Company,
delivery to the Representative for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them and (ii) in the case
of the Selling Shareholder, the crediting of the Selling Shareholder Initial
Securities to the securities account of the Representative with DTC. It is
understood that each Underwriter has authorized the Representative, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities, the Selling Shareholder Initial Securities
and the Option Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Initial
Securities, the Selling Shareholder Initial Securities or the Option Securities,
if any, to be purchased by any Underwriter whose funds have not been received by
the Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Initial Securities to be
sold by the Company and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representative may request in
writing at least one full business day before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Initial
Securities to be sold by the Company and the Option Securities, if any, will be
made available for examination and packaging by the Representative in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A, and will (for so long as a prospectus is
required to be delivered in connection with the sale of the Securities)
notify the Representative immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus
or any amended Prospectus shall have been filed, (ii) of the receipt of
any comments from the Commission regarding the Registration Statement
or the Prospectus, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible
moment.
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(b) Filing of Amendments. For so long as a prospectus is
required to be delivered in connection with the sale of the Securities,
the Company will give the Representative notice of its intention to
file or prepare any amendment to the Registration Statement (including
any filing under Rule 462(b)), or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Representative
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representative and counsel for the
Underwriters, without charge, one copy of the manually signed and as
many conformed copies as the Underwriters may reasonably request, of
the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will
be identical in text to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion
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of such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish
to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will cooperate with
the Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
as the Representative may designate and to maintain such qualifications
in effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period as
required by the relevant jurisdiction of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect
and maintain the quotation of the Securities on the Nasdaq National
Market and will file with the Nasdaq National Market all documents and
notices required by the Nasdaq National Market of companies that have
securities that are traded in the over-the-counter market and
quotations for which are reported by the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether
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any such swap or transaction described in clause (i) or (ii) above is
to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to
in the Prospectus, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing and future employee
benefit plans of the Company or (D) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses
(a) Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, the Selling Shareholder's counsel,
accountants and other advisors, (v) the filing fees incident to any necessary
filings under state securities laws and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, and
of the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the transfer agent or registrar for the Securities, (viii) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Securities
and (ix) the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(b) Expenses of the Selling Shareholder.
The Selling Shareholder will pay all discounts and commissions
of the Underwriters relating to the distribution of the 500,000 shares of
Selling Shareholder Initial Securities.
(c) Termination of Agreement.
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If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters incurred in connection with the Initial Securities, Selling
Shareholder Initial Securities and Option Securities respectively as advised by
the Underwriters.
(d) Allocation of Expenses.
The provisions of this Section shall not affect the agreement
between the Company and the Selling Shareholder for the sharing of such costs
and expenses as provided in the Stock Purchase Agreement.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Company and the Selling Shareholder
contained in Section 1 hereof or in certificates of any officer of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Shareholder of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received (i) the favorable opinion, dated as
of Closing Time, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the
Company, (ii) the favorable opinion, dated as of Closing Time, of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and
(iii) the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, in-house intellectual property counsel for the Company,
each in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit
▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit B, respectively, hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel to the Selling Shareholder. At Closing
Time, the Representative shall have received the favorable opinions
dated as of Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Selling
Shareholder, and the General Counsel of the Selling Shareholder,
together with signed or reproduced copies of such opinion for each of
the other underwriters, to the effect set forth in Exhibits C-1 and C-2
hereto.
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(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the Underwriters. In
giving such opinion such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States, upon the opinions of
counsel satisfactory to the Representative. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, any material adverse
change or a development known to the Company involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings or business affairs of the Company, whether or not arising
in the ordinary course of business, and the Representative and the
Selling Shareholder shall each have received a certificate of the
President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(f) Certificate of Selling Shareholder. At Closing Time, the
Representative shall have received a certificate of the Selling
Shareholder, dated as of Closing Time, to the effect that (A) the
representations and warranties of the Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same
force and effect as though expressly made as of the Closing Time and
(B) the Selling Shareholder has complied in all material respects with
all agreements and all conditions on its part to be performed under
this Agreement at or prior to Closing Time.
(g) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Representative shall have received from each of
PricewaterhouseCoopers LLP and Ernst & Young LLP, a letter dated such
date, in form and substance satisfactory to the Representative,
together with signed or reproduced copies of such letter for each of
the other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
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(h) Bring-down Comfort Letter. At Closing Time, the
Representative shall have received from each of PricewaterhouseCoopers
LLP and Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days
prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall
have been approved for inclusion in the Nasdaq National Market, subject
only to official notice of issuance.
(j) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the
Representative shall have received an agreement substantially in the
form of Exhibit C hereto signed by the persons listed on Schedule D
hereto.
(l) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for Company. The favorable opinions
dated as of Closing Time of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General
Counsel of the Company, (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Company, and (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, in-house
intellectual property counsel for the Company, each in form and
substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of Shearman & Sterling, counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from each of
PricewaterhouseCoopers LLP and Ernst & Young, in form and substance
satisfactory to the Representative(s) and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Representative pursuant to Section 5(h) hereof,
19
25
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(m) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they reasonably may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Shareholder in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representative(s) and counsel
for the Underwriters.
(n) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities, on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the Representative
by notice to the Company at any time at or prior to Closing Time or
such Date of Delivery, as the case may be, and such termination shall
be without liability of any party to any other party except as provided
in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters.
(1) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to
20
26
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that the Company will not be liable to any
Underwriter with respect to any Prospectus to the extent that any such loss,
liability, claim, damage or expense resulted from the fact that such
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold Securities to a person to whom such Underwriter failed to send or
give, at or prior to the Closing Time, a copy of the final Prospectus, as then
amended or supplemented if the Company has previously furnished copies thereof
to the Underwriter and the loss, liability, claim, damage or expense of such
Underwriter resulted from an untrue statement or omission of a material fact
contained or omitted from the preliminary Prospectus which was corrected in the
final Prospectus, if applicable, as amended or supplemented prior to the Closing
Time, and such final Prospectus was required by law to be delivered at or prior
to the written confirmation of sale to such person.
(2) The Selling Shareholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter;
provided, however, that such indemnification shall be only with respect to
information regarding the Selling Shareholder furnished in writing to the
Company by or on behalf of the Selling Shareholder expressly for use in the
Registration Statement (or any amendment thereto), including Rule 430A
Information, if applicable, or any preliminary prospectus or Prospectus (or any
amendment or supplement thereto); and provided further, that the aggregate
liability of the Selling Shareholder pursuant to this paragraph shall be limited
to the total net proceeds received by the Selling Shareholder from the Selling
Shareholder Initial Securities purchased by the Underwriters from the Selling
Shareholder pursuant to this Agreement. The Underwriters agree that the
information furnished to the Company specifically for use in the Registration
Statement (or any amendment thereto), including Rule 430A Information, if
applicable, or any preliminary prospectus or Prospectus (or any amendment or
supplement thereto) includes only the information relating to the Selling
Shareholder set forth in Exhibit E hereto; and provided further that the Selling
Shareholder will not be liable to any Underwriter with respect to any Prospectus
to the extent that any such loss, liability, claim, damage or expense resulted
from the fact that such Underwriter, in contravention of a
21
27
requirement of this Agreement or applicable law, sold Securities to a person to
whom such Underwriter failed to send or give, at or prior to the Closing Time, a
copy of the final Prospectus, as then amended or supplemented if the Company has
previously furnished copies thereof to the Underwriter and the loss, liability,
claim, damage or expense of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the preliminary
prospectus which was corrected in the final Prospectus, if applicable, as
amended or supplemented prior to the Closing Time, and such final Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person.
(b) Indemnification of Company, Directors and Officers and
Selling Shareholder. Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the
Selling Shareholder and each person, if any, who controls the Selling
Shareholder within the meaning of section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company or
the Selling Shareholder, as the case may be. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation,
22
28
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(1)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect the agreement between the Company and the Selling
Shareholder with respect to indemnification as provided in the Registration
Rights Agreement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholder, on the one hand, and the Underwriters on the other hand,
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 and the
Selling Shareholder, on the one hand, and of the Underwriters on the other hand,
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Shareholder on the one hand, and the Underwriters on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement received by the
Company and the Selling Shareholder and the total underwriting discount received
by the Underwriters, in each case as set forth on the cover of the Prospectus
bear to the aggregate initial public offering price of the Securities as set
forth on such cover.
The relative fault of each of the Company and the Selling Shareholder
on the one hand, and the Underwriters on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholder
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
23
29
The Company, the Selling Shareholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 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 which does not
take account of the equitable considerations referred to above in this Section.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, the Selling Shareholder
shall not be required to contribute any amount in excess of the total net
proceeds received by the Selling Shareholder from the Selling Shareholder
Initial Securities purchased by the Underwriters pursuant to this Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
the Selling Shareholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section are several in proportion to
the number of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
The provisions of this Section shall not affect the agreement between
the Company and the Selling Shareholder with respect to contribution as provided
in the Stock Purchase Agreement.
24
30
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company and the Selling
Shareholder submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Selling Shareholder, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement by notice to the Company and the Selling Shareholder at any time at or
prior to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representative, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representative(s) shall have the right, but
not the obligation, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase,
each severally and not jointly, all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative(s) shall not have completed such
arrangements within such 24-hour period, then this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
25
31
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company or the Selling
Shareholder shall have the right to postpone the Closing Time, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative(s) at North Tower, World
Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
Equity Capital Markets, notices to the Company shall be directed to it at ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq., Vice President, General Counsel and Secretary, and notices to
the Selling Shareholder shall be directed to Amgen Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1789, attention of Corporate Secretary.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and the Selling Shareholder and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Shareholder and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Selling Shareholder and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Shareholder a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters, the Company and the Selling
Shareholder in accordance with its terms.
Very truly yours,
REGENERON PHARMACEUTICALS, INC.
By:
-----------------------------------
Name:
Title:
AMGEN INC.
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
--------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
27
33
SCHEDULE A
Maximum Maximum
Number of Number of
Initial Option
Name of Underwriter Securities Securities
------------------- ---------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated................................... 4,200,000 620,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.......................................... 1,400,000 210,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc............................................. 1,400,000 210,000
--------- ---------
Total............................................................... 7,000,000 1,050,000
Sch A-1
34
SCHEDULE B
List of Sellers
Maximum Maximum
Number of Number of
Initial Option
Name of Seller Securities Securities
-------------- ---------- ----------
Regeneron Pharmaceuticals, Inc. 6,500,000 1,050,000
Amgen Inc. 500,000 0
--------- ---------
Total............................................ 7,000,000 1,050,000
Sch B-1
35
SCHEDULE C
REGENERON PHARMACEUTICALS, INC.
7,000,000 Shares of Common Stock
(Par Value $0.001 Per Share)
1. The public offering price per share for the Securities, determined
as provided in said Section 2, shall be $25.00.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $23.75, being an amount equal to the public
offering price set forth above less $1.25 per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
Sch C-1
36
SCHEDULE D
List of persons and entities
subject to lock-up
▇▇▇ ▇▇▇▇▇▇▇
Amgen Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., Ph.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
The Procter & ▇▇▇▇▇▇ Company
Procter & ▇▇▇▇▇▇ Pharmaceuticals, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Ph.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D., Ph.D.
▇▇▇▇ ▇. Shooter, Ph.D
▇▇▇▇▇▇ ▇. Sing
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Ph.D.
▇▇▇▇ ▇▇▇▇▇, Ph.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
P. ▇▇▇ ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Ph.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, M.D., Ph.D.
Sch D-1
37
Exhibit A-1
FORM OF OPINION OF GENERAL COUNSEL
TO THE COMPANY TO BE DELIVERED
PURSUANT TO SECTION 5(b)
A-1
38
Exhibit A-2
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
A-2
39
Exhibit B
FORM OF OPINION FOR SPECIAL INTELLECTUAL PROPERTY COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
B-1
40
Exhibit C-1
FORM OF OPINION OF COUNSEL TO THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
C-1
41
Exhibit C-2
FORM OF OPINION OF GENERAL COUNSEL TO THE SELLING
SHAREHOLDER TO BE DELIVERED PURSUANT TO
SECTION 5(c)
C-2
42
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS
PURSUANT TO SECTION 5(k)]
Exhibit D
-, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by Regeneron Pharmaceuticals, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Regeneron Pharmaceuticals, Inc. a New York corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Inc. and [ ] propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $0.001 per share (the
"Common Stock"). In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder [and an officer and/or director] of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of 90
days from the date of the Purchase Agreement, the undersigned will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company's
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
D-1
43
Very truly yours,
Signature:
--------------------------------
Print Name:
-------------------------------
D-2
44
Exhibit E
Information Provided by Selling Shareholder
The following information was furnished to the Company
specifically for use in the Registration Statement. The name and address and the
number of shares of Common Stock of the Company beneficially owned by the
Selling Shareholder prior to the Offering, which are set forth under the caption
"Selling Shareholder."
E-1
