Progenics Pharmaceuticals, Inc. 2,500,000 Shares Common Stock ($0.0013 par value) Underwriting Agreement
Exhibit
1.1
Progenics
Pharmaceuticals, Inc.
2,500,000
Shares
Common
Stock
($0.0013
par value)
September
14, 2005
UBS
Securities LLC
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CIBC
World Markets Corp.
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Ladies
and Gentlemen:
Progenics
Pharmaceuticals, Inc., a corporation organized under the laws of Delaware
(the
“Company”), proposes to sell to the several underwriters named in Schedule I
hereto (the “Underwriters”) 2,500,000 shares (the “Firm Shares”) of Common
Stock, $0.0013 par value (“Common Stock”), of the Company. The respective
amounts of the Firm Shares to be purchased by each of the several Underwriters
are set forth opposite their names on Schedule I hereto. To the extent there
are
no additional Underwriters listed on Schedule I other than you, the term
Underwriters shall mean either the singular or plural as the context requires.
In addition, the Company proposes to grant to the Underwriters an option
to
purchase up to an additional 375,000 shares (the “Additional Shares”) of Common
Stock from the Company for the purpose of covering over allotments in connection
with the sale of the Firm Shares. The Firm Shares and the Additional Shares
are
collectively called the “Securities.”
Any
reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3
which were filed under the Exchange Act on or before the Effective Date of
the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be; and any reference herein
to
the terms “amend”, “amendment” or “supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under
the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be, that is deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1
1. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, each Underwriter as
of the
date hereof, as set forth below in this Section 1:
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement (file number
333-126219) on Form S-3, including a Base Prospectus, for registration under
the
Act of the offering and sale of the Securities. The Company may have filed
one
or more amendments thereto, including a Preliminary Prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such
registration statement, a further amendment to such registration statement
(including the form of final prospectus and final prospectus supplement)
or (2)
after the Effective Date of such registration statement, a final prospectus
and
final prospectus supplement in accordance with Rule 424(b). In the case of
clause (2), the Company has included in such registration statement, as amended
at the Effective Date, all information required by the Act to be included
in
such registration statement and the Prospectus. As filed, such amendment
and
form of final prospectus and final prospectus supplement (in the case of
clause
(1) of the third sentence of this Section 1(a)), or such final prospectus
and
final prospectus supplement (in the case of clause (2) of such sentence),
shall
contain all required information, and, except to the extent the Underwriters
shall agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time or, to the extent
not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus
and
the latest Preliminary Prospectus) as the Company has advised you, prior
to the
Execution Time, will be included or made therein.
(b) On
the
Effective Date, the Registration Statement did, and when the Prospectus is
first
filed (if required) in accordance with Rule 424(b) and on the Closing Date
(as
defined herein) the Prospectus (and any supplements thereto) will, comply
in all
material respects with the applicable requirements of the Act and the Exchange
Act; on the Effective Date and at the Execution Time, the Registration Statement
did not contain any untrue statement of a material fact or omit to state
any
material fact required to be stated therein or necessary in order to make
the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on each Closing Date, the Prospectus (together
with
any supplement thereto) will not include any untrue statement of a material
fact
or 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; provided, however, that the Company makes no representations
or
warranties as to the information contained in or omitted from the Registration
Statement, or the Prospectus (or any supplement thereto) in reliance upon
and in
conformity with information relating to the Underwriters furnished in writing
to
the Company by or on behalf of any Underwriter specifically for inclusion
in the
Registration Statement or the Prospectus (or any supplement thereto). The
Registration Statement was declared effective at 4:00 p.m. (Eastern Time)
on
August 31, 2005.
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(c) The
Company has been duly organized and is validly existing and in good standing
under the laws of the State of Delaware, and PSMA Development Company LLC,
a
Delaware limited liability company (the “LLC”), has been duly formed and is
validly existing and in good standing under the laws of the State of Delaware,
in each case with full corporate (in the case of the Company) or limited
liability company (in the case of the LLC) power and authority to own or
lease,
as the case may be, and to operate its properties and conduct its business
as
described in the Prospectus, and is duly qualified to do business as a foreign
corporation (in the case of the Company) or limited liability company (in
the
case of the LLC) and is in good standing under the laws of each jurisdiction
wherein it owns or leases properties or conducts business and where the failure
to be so qualified would, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects, results
of
operations, business or properties of the Company and the LLC, taken as a
whole,
whether or not arising from transactions in the ordinary course of business;
notwithstanding the foregoing, the Company is duly qualified to do business
as a
foreign corporation, and the LLC is duly qualified to do business as a foreign
limited liability company, and each of them is in good standing, in each
case
under the laws of the State of New York.
(d) The
membership interests in the LLC that are held by the Company (i) represent
fifty
percent (50%) of the outstanding membership interests of the LLC and (ii)
are
owned by the Company free and clear of any security interests, claims, liens
or
encumbrances, other than encumbrances imposed pursuant to the terms of the
Limited Liability Company Agreement of PSMA Development Company LLC dated
June
15, 1999. The Company has no subsidiaries and does not control, directly
or
indirectly, any corporation, partnership, joint venture, association or
business, except for such control as it may exert over the LLC as a result
of
its membership interest in the LLC.
(e) The
Company’s authorized equity capitalization is as set forth in the Prospectus;
the capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus; the outstanding shares of
Common Stock have been duly and validly authorized and issued and are fully
paid
and nonassessable; the Securities have been duly and validly authorized,
and,
when issued and delivered to and paid for by the Underwriters pursuant to
this
Agreement, will be fully paid and nonassessable; upon official notice of
issuance, the Securities will be duly listed on the NASDAQ National Market;
the
certificates for the Securities are in the form duly authorized by the Board
of
Directors of the Company and comply in all material respects with the
requirements of the Delaware General Corporation Law (the “DGCL”); the holders
of outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except as
set
forth in the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
3
(f) There
is
no franchise, contract or other document of a character required by the Act
to
be described in the Registration Statement or Prospectus, or to be filed
as an
exhibit thereto, which is not described or filed as required; and the statements
in the Prospectus under the headings “Risk Factors - Disputes with Cytogen could
delay or halt our PSMA programs,” - “If we do not remedy our failure to achieve
milestones or satisfy conditions regarding some of our product candidates,
we
may not maintain our rights under our licenses relating to these product
candidates,” - “We are subject to extensive regulation, which can be costly and
time consuming and can subject us to unanticipated fines and delays,” - “We do
not yet have, and may never obtain, the regulatory approvals we need to market
our products,” - “We are dependent on our patents and other intellectual
property rights. The validity, enforceability and commercial value of these
rights are highly uncertain,” - “We are dependent on third parties for a variety
of functions. These arrangements may not provide us with the benefits we
expect,” - “If we are unable to obtain sufficient quantities of the raw and bulk
materials needed to make our products, our product development and
commercialization could be slowed or stopped,” -“Anti-takeover provisions may
make the removal of our Board of Directors or management more difficult and
discourage hostile bids for control of our company that may be beneficial
to our
stockholders,” and in the Company’s Annual Report on Form 10-K for the year
ended December 31, 2004 (the “2004 10-K”) under the headings “Part I - Item 1.
Business - Joint Venture Relating to PSMA,” - “Licenses,” - “Patents and
Proprietary Technology,” and - “Government Regulation,” in each case insofar as
such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(h) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an “investment company” as defined in the Investment
Company Act of 1940, as amended.
(i) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required on the part of the Company in connection
with the transactions contemplated herein, except such as have been obtained
under the Act and the applicable rules of the National Association of Securities
Dealers, Inc., and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated herein and in the
Prospectus.
4
(j) Neither
the issue and sale of the Securities nor the consummation of any other of
the
transactions herein contemplated nor the fulfillment of the terms hereof
will
conflict with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the LLC
pursuant to, (i) the charter, by-laws or other organizational document of
the
Company or the LLC, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or the LLC is a party
or
bound or to which any of the Company’s or the LLC’s property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or the LLC of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the
Company or the LLC or any of the Company’s or the LLC’s properties.
(k) No
holders of securities of the Company have rights to the registration of such
securities under the Registration Statement, other than those rights which
have
been waived.
(l) The
historical financial statements of the Company included in the Prospectus
and
the Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the
dates
and for the periods indicated, comply as to form in all material respects
with
the applicable accounting requirements of the Act and have been prepared
in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein).
The
selected financial data set forth under the caption “Part II - Item 6. -
Selected Financial Data” in the 2004 10-K, which is incorporated by reference
into the Prospectus and Registration Statement, fairly present, on the basis
stated in the Prospectus and the Registration Statement, the information
included therein.
(m) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or the LLC or the
Company’s or the LLC’s property is pending or, to the knowledge of the Company,
threatened that (i) would have a material adverse effect on the performance
of
this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) would have a material adverse effect on the condition (financial
or otherwise), prospects, results of operations, business or properties of
the
Company and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in
the Prospectus (exclusive of any supplement thereto).
(n) The
real
and personal properties owned or leased by the Company and the LLC are adequate
in all material respects for the conduct of the Company’s and the LLC’s
businesses as described in the Registration Statement and the Prospectus.
5
(o) Neither
the Company nor the LLC is in violation or default of (i) any provision of
its
charter, bylaws or other organizational document, (ii) other than as disclosed
in or contemplated by the Prospectus, the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a
party
or bound or to which the Company’s or the LLC’s property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other
authority having jurisdiction over the Company or the LLC or the Company’s or
the LLC’s property, as applicable, where, in the case of clauses (ii) and (iii)
only, the consequence of any such violation or default, individually or in
the
aggregate, would have a material adverse effect on the condition (financial
or
otherwise), prospects, results of operations, business or properties of the
Company and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business.
(p) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and
delivered their report with respect to the audited financial statements included
in the Prospectus, is an independent registered public accounting firm with
respect to the Company within the meaning of the Sarbanes Oxley Act of 2002
(the
“Sarbanes Oxley Act”) and the rules and regulations of the Public Company
Accounting Oversight Board.
(q) There
are
no transfer taxes or other similar fees or charges under Federal law or the
laws
of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance
or
sale by the Company to the Underwriters of the Securities.
(r) The
Company has filed all foreign, federal, state and local tax returns that
are
required to be filed or has requested extensions thereof (except in any case
in
which the failure so to file could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), prospects, results
of
operations, business or properties of the Company and the LLC, taken as a
whole,
whether or not arising from transactions in the ordinary course of business),
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto), and has paid all taxes required to be paid by it and
any
other assessment, fine or penalty levied against it, to the extent that any
of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as could not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, results of operations, business or
properties of the Company and the LLC, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
6
(s) No
labor
problem or dispute with the employees of the Company or the LLC exists or,
to
the Company’s knowledge, is threatened or imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any of
its or
the LLC’s principal suppliers, contractors or customers, that could reasonably
be expected to have a material adverse effect on the condition (financial
or
otherwise), prospects, results of operations, business or properties of the
Company and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in
the Prospectus (exclusive of any supplement thereto).
(t) The
Company and the LLC are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all material policies
of insurance and fidelity or surety bonds insuring the Company or the LLC
or
their respective businesses, assets, employees, officers and directors are
in
full force and effect; the Company and the LLC are in compliance with the
terms
of such policies and instruments in all material respects; and there are
no
material claims by the Company or the LLC under any such policy or instrument
as
to which any insurance company is denying liability or defending under a
reservation of rights clause; and neither the Company nor the LLC has any
reason
to believe that it will not be able to renew its existing insurance coverage
as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that could
not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, results of operations, business or
properties of the Company and the LLC, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(u) The
Company and the LLC possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except for
such
licenses, certificates, permits and other authorizations the absence of which,
individually or in the aggregate, could not reasonably be expected to have
a
material adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and the LLC,
taken
as a whole, whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Prospectus (exclusive
of
any supplement thereto). Neither the Company nor the LLC has received any
notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit, the results of which proceeding could
reasonably be expected, singly or in the aggregate, to have a material adverse
effect on the condition (financial or otherwise), prospects, results of
operations, business or properties of the Company and the LLC, taken as a
whole,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
7
(v) The
Company maintains a system of internal accounting controls sufficient to
provide
reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity
with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets
is
compared with the existing assets at reasonable intervals and appropriate
action
is taken with respect to any differences.
(w) The
Company has not taken, directly or indirectly, any action designed to or
that
would constitute or that might reasonably be expected to cause or result
in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price
of any security of the Company to facilitate the sale or resale of the
Securities.
(x) The
Company and the LLC are (i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection
of
human health and safety, the environment or hazardous or toxic substances
or
wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received
and are in compliance with all permits, licenses or other approvals required
of
them under applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential liability under
any environmental law, except where such non-compliance with Environmental
Laws,
failure to receive required permits, licenses or other approvals, or liability
could not reasonably be expected, individually or in the aggregate, to have
a
material adverse effect on the condition (financial or otherwise), prospects,
results of operations, business or properties of the Company and the LLC,
taken
as a whole, whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Prospectus (exclusive
of
any supplement thereto). Neither the Company nor the LLC has been named as
a
“potentially responsible party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(y) In
the
ordinary course of its business, the Company periodically reviews the effect
of
Environmental Laws on the business, operations and properties of the Company
and
the LLC, in the course of which it identifies and evaluates associated costs
and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties).
On the
basis of such review, the Company has concluded that such associated costs
and
liabilities could not reasonably be expected, singly or in the aggregate,
to
have a material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company and
the
LLC, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
8
(z) The
minimum funding standard under Section 302 of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (“ERISA”), has been satisfied by each “pension plan”
(as defined in Section 3(2) of ERISA) which has been established or maintained
by the Company and/or the LLC, and all “pension plans” maintained by the Company
or the LLC that are intended to be qualified under Section 401(a) of the
Code
have received determination letters of the Internal Revenue Service to the
effect that such plans are so qualified, and to the knowledge of the Company,
no
facts exist that are reasonably likely to adversely effect the “qualified”
status of any such plans; neither the Company nor the LLC maintains or is
required to contribute to a “welfare plan” (as defined in Section 3(1) of ERISA)
which provides retiree or other post-employment welfare benefits or insurance
coverage (other than “continuation coverage” (as defined in Section 602 of
ERISA)); each pension plan and welfare plan established or maintained by
the
Company and/or the LLC is in compliance in all material respects with the
currently applicable provisions of ERISA; and neither the Company nor the
LLC
has incurred or could reasonably be expected to incur any withdrawal liability
under Section 4201 of ERISA, any liability under Section 4062, 4063, or 4064
of
ERISA, or any other liability under Title IV of ERISA.
(aa) There
is
and has been no failure on the part of the Company or, to the Company’s
knowledge, any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any provision, to the extent
effective, of the Sarbanes Oxley Act and the rules and regulations promulgated
in connection therewith, including Section 402 related to loans, Section
404
related to internal control over financial reporting, and Sections 302 and
906
related to certifications.
(bb) Neither
the Company nor the LLC nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or the LLC is aware
of or
has taken any action, directly or indirectly, that would result in a violation
by such Persons of the FCPA, including, without limitation, making use of
the
mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the
payment
of any money, or other property, gift, promise to give, or authorization
of the
giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA and the Company,
the
LLC and, to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA.
“FCPA”
means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
9
(cc) Except
as
described in or contemplated by the Prospectus, the Company and the LLC own,
possess, license or have other rights to use, all patents, patent applications,
trade and service marks, trade and service ▇▇▇▇ registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other
intellectual property (collectively, the “Intellectual Property”) necessary for
the conduct of the Company’s business as now conducted or as proposed in the
Prospectus to be conducted (collectively, “Company Intellectual Property”).
Except as set forth in the Prospectus or such as could not reasonably be
expected, individually or in the aggregate, to have a material adverse effect
on
the condition (financial or otherwise), prospects, results of operations,
business or properties of the Company and the LLC, taken as a whole, whether
or
not arising from transactions in the ordinary course of business, (a) to
the
Company’s knowledge, there are no rights of third parties to any Company
Intellectual Property other than the retained rights of licensors with respect
to licensed Company Intellectual Property; (b) to the Company’s knowledge, there
is no infringement by third parties of any Company Intellectual Property;
(c)
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s rights in or to any
Company Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (d) there is no pending
or, to
the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any Company Intellectual Property, and
the
Company is unaware of any facts which would form a reasonable basis for any
such
claim; (e) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company infringes or
otherwise violates any Intellectual Property of others, and the Company is
unaware of any other fact which would form a reasonable basis for any such
claim; (f) to the Company’s knowledge, there is no U.S. patent or published U.S.
patent application which contains claims that dominate, or, with respect
to such
published patent applications, that may dominate if issued, any Company
Intellectual Property or that interferes with the issued or pending claims
of
any Company Intellectual Property; and (g) there is no prior art of which
the
Company is aware that could reasonably be expected to render any U.S. patent
held by the Company invalid or any U.S. patent application held by the Company
unpatentable which has not been disclosed to the U.S. Patent and Trademark
Office.
(dd) Each
of
the Company and the LLC has filed with the U.S. Food and Drug Administration
(the “FDA”) and all other applicable foreign, state and local regulatory bodies
for, and received approval of, all registrations, applications, licenses,
requests for exemptions, permits and other regulatory authorizations material
to
the conduct of its business as now conducted; each of the Company and the
LLC is
in compliance in all material respects with all such registrations,
applications, licenses, requests for exemptions, permits and other regulatory
authorizations, and all applicable FDA, foreign, state and local rules and
regulations; and the Company has no reason to believe that any party granting
any such registration, application, license, request for exemption, permit
or
other authorization is considering limiting, suspending or revoking the same
in
any material respect.
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(ee) Each
of
the human clinical trials, animal studies and other preclinical tests conducted
by the Company or the LLC, or in which the Company or the LLC has participated,
that are described in the Registration Statement or the Prospectus or the
results of which are referred to in the Registration Statement or the
Prospectus, and such studies and tests conducted on behalf of the Company
or the
LLC, were and, if still pending, are being conducted in all material respects
(i) in accordance with experimental protocols, procedures and controls generally
used by qualified experts in the preclinical or clinical study of products
comparable to those being developed by the Company and (ii) in compliance
with
all applicable current Good Laboratory and Good Clinical Practices; the
descriptions of the results of such studies, tests and trials contained in
the
Registration Statement and the Prospectus are accurate and complete in all
material respects, and the Company has no knowledge of any other trials,
studies
or tests, the results of which reasonably call into question the results
described or referred to in the Registration Statement and the Prospectus;
other
than as described in or contemplated by the Prospectus, neither the Company
nor
the LLC has received any notices or correspondence from the FDA or any other
governmental agency requiring the termination, suspension or modification
(other
than such suspensions as have been lifted or such modifications as have been
complied with) of any animal studies, preclinical tests or clinical trials
conducted by or on behalf of the Company or the LLC or in which the Company
or
the LLC has participated that are described in the Registration Statement
or the
Prospectus or the results of which are referred to in the Registration Statement
or the Prospectus.
Any
certificate signed by any officer of the Company and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering
of
the Securities shall be deemed a representation and warranty by the Company,
as
to matters covered thereby, to each Underwriter.
2. Purchase
and Sale.
(a) The
Company agrees to issue and sell to each of the Underwriters, and each of
the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at
a purchase price of $23.02 per share (the “Initial Price”), the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule I to this
Agreement, subject to adjustment in accordance with Section 9
hereof.
11
(b) The
Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, all or any part of the Additional Shares at the
Initial Price. The number of Additional Shares to be purchased by each
Underwriter shall be the same percentage of the total number of Additional
Shares to be purchased by the Underwriters as such Underwriter is purchasing
of
the Firm Shares. Such option may be exercised only to cover over-allotments
in
the sales of the Firm Shares by the Underwriters and may be exercised in
whole
or in part at any time on or before 12:00 noon, New York City time, on the
Business Day before the Firm Shares Closing Date, and from time to time
thereafter within 30 days after the date of this Agreement, in each case
upon
written, facsimile or telegraphic notice, or verbal or telephonic notice
confirmed by written, facsimile or telegraphic notice, by the Underwriters
to
the Company no later than 12:00 noon, New York City time, on the Business
Day
before the Firm Shares Closing Date or at least two Business Days before
the
Additional Shares Closing Date, as the case may be, setting forth the number
of
Additional Shares to be purchased and the time and date (if other than the
Firm
Shares Closing Date) of such purchase.
3. Delivery
and Payment.
(a) Payment
of the purchase price for, and delivery of certificates for, the Firm Shares
shall be made at 10:00 a.m., New York City time, on the third Business Day
following the date of this Agreement or at such time on such other date,
not
later than ten Business Days after the date of this Agreement, which date
and
time may be postponed by agreement between the Underwriters and the Company
or
as provided in Section 9 hereof (such time and date of delivery and payment
are
called the “Firm Shares Closing Date”). In addition, in the event that any or
all of the Additional Shares are purchased by the Underwriters, payment of
the
purchase price, and delivery of the certificates, for such Additional Shares
shall be made on each date of delivery as specified in the notice from the
Underwriters to the Company (such time and date of delivery and payment are
called the “Additional Shares Closing Date”). The Firm Shares Closing Date and
any Additional Shares Closing Date are called, individually, a “Closing Date”
and, together, the “Closing Dates.”
(b) Payment
shall be made to the Company by wire transfer of immediately available funds
or
by certified or official bank check or checks payable in New York Clearing
House
(same day) funds drawn to the order of the Company, against delivery of the
respective certificates to the Underwriters for the respective accounts of
the
Underwriters of certificates for the Securities to be purchased by
them.
12
(c) Certificates
evidencing the Securities shall be registered in such names and shall be
in such
denominations as the Underwriters shall request at least two full Business
Days
before the Firm Shares Closing Date or, in the case of Additional Shares,
on the
day of notice of exercise of the option as described in Section 2(b) and
shall
be delivered by or on behalf of the Company to the Underwriters through the
facilities of the Depository Trust Company for the accounts of such
Underwriters. The Company will cause the certificates representing the
Securities to be made available for checking and packaging, at such place
as is
designated by the Underwriters, on the full Business Day before the Firm
Shares
Closing Date (or the Additional Shares Closing Date in the case of the
Additional Shares).
4. Offering
by Underwriters.
It is
understood that the several Underwriters propose to offer the Securities
for
sale to the public as set forth in the Prospectus.
5. Agreements.
The
Company agrees with the several Underwriters that:
(a) The
Company will use its best efforts to cause the Registration Statement, if
not
effective at the Execution Time, and any amendment thereof, to become effective.
Prior to the termination of the offering of the Securities, the Company will
not
file any amendment of the Registration Statement or supplement to the Base
Prospectus or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file any
such
proposed amendment or supplement to which you reasonably object. Subject
to the
foregoing sentence, if filing of the Prospectus is required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Underwriters with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence reasonably satisfactory to the Underwriters
of such timely filing. The Company will promptly advise the Underwriters
(1)
when the Registration Statement, if not effective at the Execution Time,
shall
have become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b)
or when any Rule 462(b) Registration Statement shall have been filed with
the
Commission, (3) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement,
or for
any supplement to the Prospectus or for any additional information, (5) of
the
issuance by the Commission of any stop order suspending the effectiveness
of the
Registration Statement or the institution or threatening of any proceeding
for
that purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any
such stop order or the suspension of any such qualification and, if issued,
to
obtain as soon as possible the withdrawal thereof.
13
(b) If,
at
any time when a prospectus relating to the Securities is required to be
delivered under the Act, any event occurs as a result of which the Prospectus
as
then supplemented would include any untrue statement of a material fact or
omit
to state any material fact necessary to make the statements therein in the
light
of the circumstances under which they were made not misleading, or if it
shall
be necessary to amend the Registration Statement or supplement the Prospectus
to
comply with the Act or the Exchange Act, the Company promptly will (1) notify
the Underwriters of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Prospectus to you in such quantities
as you may reasonably request.
(c) As
soon
as practicable, the Company will make generally available to its security
holders and to the Underwriters an earnings statement or statements of the
Company and the LLC which will satisfy the provisions of Section 11(a) of
the
Act and Rule 158 under the Act.
(d) The
Company will furnish to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of the
Prospectus and any supplement thereto as the Underwriters may reasonably
request. The Company will pay the reasonable expenses of printing or other
production of all documents relating to the offering.
(e) The
Company will arrange, to the extent necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Underwriters
may
designate, will maintain such qualifications in effect so long as required
for
the distribution of the Securities and will pay any fee required to be paid
to
the National Association of Securities Dealers, Inc., in connection with
its
review of the offering; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any
jurisdiction where it is not now so subject.
14
(f) The
Company will not, without the prior written consent of UBS Securities LLC
and
CIBC World Markets Corp., offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any other
shares
of Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock, or publicly announce an intention
to
effect any such transaction, for a period of 60 days after the date of the
Underwriting Agreement (the “Lock-Up Period”), provided, however, that (i) the
Company may issue and sell Common Stock or issue stock options pursuant to
any
employee stock option plan, employee stock purchase plan, stock ownership
plan
or dividend reinvestment plan of the Company; (ii) the Company may issue
Common
Stock issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time; (iii) the Company may issue or sell
securities, or enter into options, warrants or other agreements providing
for
the issuance or sale of securities, to a strategic partner or in connection
with
a strategic collaboration, joint venture, licensing arrangement or other
similar
corporate transaction, provided that such strategic partner, collaborator,
joint
venture partner, licensee or licensor agrees to be bound to the same extent
as
the Company by the terms of this paragraph 5(f) (excluding the exceptions
set
forth in (i), (ii) and (iii) hereof); (iv) the Company may file registration
statements on Form S-8 relating to shares of common stock which may be issued
pursuant to any employee stock option plan of the Company and (v) the Company
may file a registration statement on Form S-3 for a shelf registration of
shares
of common stock pursuant to Rule 415 promulgated under the Act. If (x) during
the last 17 days of the Lock-Up Period the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (y)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day
of
the 60-day period; the restrictions imposed in this Agreement shall continue
to
apply until the expiration of the 18-day period beginning on the issuance
of the
earnings release or the occurrence of the material news or material event;
provided, however, that this sentence shall not apply if the research published
or distributed on the Company is compliant under Rule 139 of the Act and
the
Company’s securities are actively traded as defined in Rule 101(c)(1) of
Regulation M of the Exchange Act.
(g) The
Company will not take, directly or indirectly, any action designed to or
that
would constitute or that might reasonably be expected to cause or result
in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price
of any security of the Company to facilitate the sale or resale of the
Securities.
15
6. Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Securities shall be subject
to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and each Closing Date to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If
filing
of the Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus, and any such supplement, will be filed in the manner
and
within the time period required by Rule 424(b); and no stop order suspending
the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The
Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for
the
Company, to have furnished to the Underwriters their opinion, dated the Firm
Shares Closing Date and any Additional Shares Closing Date, and addressed
to the
Underwriters, to the effect that:
(i) the
Company has been duly incorporated under the DGCL, and the LLC has been duly
formed under the Delaware Limited Liability Company Act, and each of them
is
validly existing and in good standing under the laws of the State of Delaware,
with full corporate (in the case of the Company) or limited liability company
(in the case of the LLC) power and authority to own or lease, as the case
may
be, and to operate its properties and conduct its business as described in
the
Prospectus; and the Company is duly qualified to do business as a foreign
corporation, and the LLC is duly qualified to do business as a foreign limited
liability company, and each of them is in good standing, in each case under
the
laws of the State of New York;
(ii) the
Company’s authorized capital stock is as set forth in the Prospectus; the
capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus; the outstanding shares of
Common Stock have been duly and validly authorized and issued and are fully
paid
and nonassessable; the Securities have been duly and validly authorized,
and,
when issued and delivered to and paid for by the Underwriters in accordance
with
the terms of this Agreement, will be fully paid and nonassessable; the Company
has complied in all material respects with the published rules of The Nasdaq
Stock Market Inc. regarding the issuance of additional shares as such rules
relate to the issuance of the Securities except that the Company will provide
notice of listing of additional shares relating to the Securities pursuant
to
Nasdaq Marketplace Rule 4310(c)(17)(D) four days prior to issuance, and upon
official notice of issuance, the Securities will be duly listed on the NASDAQ
National Market; the certificates for the Securities comply in all material
respects with the requirements of the DGCL; and the holders of outstanding
shares of capital stock of the Company are not entitled, in connection with
the
issuance of the Securities, to any preemptive rights to subscribe for Securities
pursuant to the DGCL or the certificate of incorporation or bylaws of the
Company, or any agreement filed as an exhibit to the Registration Statement
or
any document incorporated by reference therein;
16
(iii) to
the
knowledge of such counsel, (A) there is no pending or threatened action,
suit or
proceeding by or before any court or governmental agency, authority or body
or
any arbitrator involving the Company or the LLC or the Company’s or the LLC’s
property of a character required by Item 103 of Regulation S-K promulgated
under
the Act to be disclosed in the Registration Statement which is not disclosed
in
the Prospectus as required, and (B) there is no contract or other document
of a
character required by the Act to be described in the Registration Statement
or
Prospectus, or to be filed as an exhibit thereto, which is not described
or
filed as required; and the statements included or incorporated by reference
in
the Prospectus under the headings “Risk Factors - If we do not remedy our
failure to achieve milestones or satisfy conditions regarding some of our
product candidates, we may not maintain our rights under our licenses relating
to these product candidates,” - “We are dependent on our patents and other
intellectual proprietary rights. The validity, enforceability and commercial
value of these rights are highly uncertain,” - “If we are unable to obtain
sufficient quantities of the raw and bulk materials needed to make our products,
our product development and commercialization could be slowed or stopped,” -
“Anti-takeover provisions may make the removal of our Board of Directors or
management more difficult and discourage hostile bids for control of our
company
that may be beneficial to our stockholders,” and in the 2004 10-K under the
headings “Part I - Item 1. Business - Joint Venture Relating to PSMA,” and “-
Licenses” (to the extent such statements describe the Company’s certificate of
incorporation or any agreements that are filed as an exhibit to the Registration
Statement or any document incorporated by reference therein), are correct
in all
material respects;
(iv) the
Registration Statement has become effective under the Act; any required filing
of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been
made in the manner and within the time period required by Rule 424(b); to
the
knowledge of such counsel, no stop order suspending the effectiveness of
the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted or threatened; and the Registration Statement and the Prospectus
and all documents incorporated by reference in the Registration Statement
and
the Prospectus (other than the financial statements and other financial,
accounting and statistical information contained therein, as to which such
counsel need express no opinion) comply or, with respect to the documents
incorporated by reference, when such documents became effective or were filed
with the Commission, complied as to form in all material respects with the
applicable requirements of the Act and the Exchange Act;
17
(v) this
Agreement has been duly authorized, executed and delivered by the
Company;
(vi) the
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an “investment company” as defined in the Investment
Company Act of 1940, as amended;
(vii) no
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the Act and
such as
may be required under the blue sky laws of any jurisdiction, or by the National
Association of Securities Dealers, Inc. with respect to the underwriting
arrangements, in connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals as have been obtained;
(viii) neither
the issue and sale of the Securities, nor the consummation of any other of
the
transactions herein contemplated nor the fulfillment of the terms hereof
will
conflict with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the LLC
pursuant to, (1) the charter, by-laws or other organizational document of
the
Company or the LLC, (2) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument filed as an exhibit to the Registration
Statement or any document incorporated by reference therein, or (3) any statute,
law, rule or regulation applicable to the Company or the LLC, or any judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the
Company or the LLC or any of the Company’s or the LLC’s properties known to such
counsel to be applicable to the Company or the LLC; and
(ix) no
holders of securities of the Company have rights to the inclusion of such
securities in the offering pursuant to the terms of any agreement filed as
an
exhibit to the Registration Statement or any document incorporated by reference
therein, other than those rights which have been waived.
18
(x) In
addition, such counsel shall state as follows: Such counsel has not undertaken
to determine independently, and therefore does not assume any responsibility
explicitly or implicitly for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and in the Prospectus
(except
to the extent set forth in paragraph (iii) above). Such counsel has participated
in conferences with officers of the Company, representatives of the
Underwriters, representatives of counsel to the Underwriters and representatives
of the Company’s independent auditors during which conferences the contents of
the Registration Statement and the Prospectus were reviewed and discussed.
Based
upon and subject to the foregoing, nothing has come to such counsel’s attention
that causes them to believe that the Registration Statement, at the time
it
became effective, contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, or that the Prospectus, as of its date
or as
of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading (except in each case as to the financial statements and the
notes
thereto and other financial, accounting and statistical data included or
incorporated by reference therein, as to which such counsel need make no
comment).
In
rendering such opinion, such counsel may rely (A) as to matters involving
the
application of laws of any jurisdiction other than the State of New York
or the
Federal laws of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion of other counsel of good standing whom
they
believe to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to
the
Prospectus in this paragraph (b) shall also include any supplements thereto
at
the respective Closing Date.
(c) The
Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, patent counsel
for the Company, to have furnished to the Underwriters their opinion, dated
the
Firm Shares Closing Date and any Additional Shares Closing Date and addressed
to
the Underwriters, to the effect that such counsel is familiar with the
technology used by the Company in its business and has read the portions
of the
Registration Statement and the Prospectus headed “Risk Factors - We are
dependent upon our patents and other intellectual property rights. The validity,
enforceability and commercial value of these rights are highly uncertain,” and
in the 2004 10-K under the headings “Part I - Item 1. Business - Licenses” and
“- Patents and Proprietary Technology” (collectively, the “Technology Portion”),
and that, except to the extent that the following opinions relate to the
methylnaltrexone technology and products of the Company, the ganglioside
conjugate vaccine technology and products of the Company, and the PSMA
technology and product development programs of the Company and the LLC, as
to
which such counsel provides no opinion:
19
(d) such
counsel has no knowledge of any facts that would preclude the Company from
having clear title to the Company’s patents or patent applications referenced in
the Technology Portion. To such counsel’s knowledge, the Company does not lack
and will not be unable to obtain any rights or licenses to use any patent
or
know-how necessary to conduct the business now conducted or proposed to be
conducted by the Company as described in the Prospectus, including but not
limited to the Company’s business relating to HIV receptor technology and
products (except with respect to the Columbia License Agreement and the Columbia
Licensed Patents, as to which such counsel need express no opinion). To such
counsel’s knowledge, the Company has not received any notice of infringement or
of conflict with asserted rights of others insofar as any patents, patent
applications, trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses or know-how, proprietary
techniques, including processes and substances, and other similar rights
and
proprietary knowledge (except with respect to the Columbia License Agreement
and
the Columbia Licensed Patents, as to which such counsel need express no opinion)
which could result in a material adverse effect on the condition (financial
or
otherwise), prospects, earning, business or properties of the Company and
the
LLC, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). Such counsel is not aware of any issued
patents of others (except with respect to the Columbia License Agreement
and the
Columbia Licensed Patents, as to which such counsel need express no opinion)
that are infringed by specific products or processes of the Company, as
described in the Prospectus, in such manner as to materially and adversely
affect the Company;
(i) to
such
counsel’s knowledge, there are no legal or governmental proceedings pending
relating to trade secrets, trademarks, service marks or other proprietary
information or materials of the Company or the LLC (except with respect to
the
Columbia License Agreement and the Columbia Licensed Patents, as to which
such
counsel need express no opinion), other than review of pending applications
for
patents, and to such counsel’s knowledge no such proceedings are threatened or
contemplated by governmental authorities or others;
(ii) such
counsel does not know of any material contracts or other material documents
relating to the Company’s proprietary information (except with respect to the
Columbia License Agreement and the Columbia Licensed Patents, as to which
such
counsel need express no opinion), other than those filed as exhibits to the
Registration Statement, the 2004 10-K; and
20
(iii) the
statements in the Technology Portion (except with respect to those statements
that describe the Columbia License Agreement and the Columbia Licensed Patents,
as to which such counsel need express no opinion), insofar as such statements
constitute a summary of documents referred to therein or matters of law,
are
accurate summaries and fairly and correctly present, in all material respects,
the information called for with respect to such documents and matters, and
such
counsel has no reason to believe that the statements therein are untrue or
that
there is an omission to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading. Such counsel may
rely
on representations of the Company with respect to the factual matters contained
in such statements, provided that such counsel shall state that nothing has
come
to the attention of such counsel that leads them to believe that such
representations are not true and correct in all material respects.
(e) The
Company shall have requested and caused Wolf, Greenfield & Sacks, P.C.,
special patent counsel for the Company, to have furnished to the Underwriters
their opinion dated the Firm Shares Closing Date and any Additional Shares
Closing Date and addressed to the Underwriters, to the effect that such counsel
is familiar with the Company’s methylnaltrexone technology and products, its
ganglioside conjugate vaccine technology and products, and its joint venture
for
the development of product candidates based on PSMA technology licensed from
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ and has read the Technology Portion, and that, solely with
respect to the Company’s methylnaltrexone technology and products (“MNTX
Products”), its ganglioside conjugate vaccine technology and products (the
“Conjugate Vaccines”), and its joint venture for the development of product
candidates based on PSMA technology licensed from ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇:
(i) to
such
counsel’s knowledge, the Company does not lack and will not be unable to obtain
any rights or licenses to use any patent or know-how necessary to make, use,
import, offer for sale and sell the Company’s MNTX Products or Conjugate
Vaccines described in the Prospectus and as presently used by the Company
or as
proposed to be used and sold by the Company as described in the Prospectus.
To
such counsel’s knowledge, the Company has not received any notice of
infringement or of conflict with asserted rights of others with respect to
any
patents, patent applications, licenses or know-how, proprietary techniques,
including processes and substances, and other similar rights and proprietary
knowledge that could result in a material adverse effect on the condition
(financial or otherwise), prospects, earning, business or properties of the
Company and the LLC, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in
the Prospectus (exclusive of any supplement thereto). Such counsel is not
aware
of any patents of others that are not licensed by the Company and that are
infringed by the Company as a result of the Company’s making, using, importing,
offering for sale or selling its MNTX Products or Conjugate
Vaccines;
21
(ii) to
such
counsel’s knowledge, neither the Company nor the LLC has received any notice of
infringement or of conflict with asserted rights of others with respect to
any
patents, patent applications, licenses or know-how, proprietary techniques,
including processes and substances, and other similar rights and proprietary
knowledge in the field of using PSMA for the treatment of disease that could
result in a material adverse effect on the condition (financial or otherwise),
prospects, earning, business or properties of the Company and the LLC, taken
as
a whole, whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Prospectus (exclusive
of
any supplement thereto);
(iii) to
such
counsel’s knowledge, there are no legal or governmental proceedings pending
relating to proprietary information or materials of the Company, other than
review of pending applications for patents, and to such counsel’s knowledge no
such proceedings are threatened or contemplated by governmental authorities
or
others; and
(iv) the
statements in the Technology Portion, insofar as such statements constitute
a
summary of patents or of law, are accurate summaries and fairly and correctly
present, in all material respects, the information called for with respect
to
such matters and such counsel has no reason to believe that the statements
therein are untrue or that there is an omission to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading; provided, however that such counsel may rely on representations
of
the Company and the LLC with respect to the factual matters contained in
such
statements, provided
that
such counsel shall state that nothing has come to the attention of such counsel
which leads them to believe that such representations are not true and correct
in all material respects.
(f) The
Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
LLP,
counsel for the Underwriters, such opinion or opinions, dated the Firm Shares
Closing Date and any Additional Shares Closing Date and addressed to the
Underwriters, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Underwriters may reasonably require, and
the
Company shall have furnished to such counsel such documents as they request
for
the purpose of enabling them to pass upon such matters.
(g) The
Company shall have furnished to the Underwriters a certificate of the Company,
signed by the Chief Executive Officer and the Chief Financial Officer of
the
Company, acting solely in their capacities as such, dated the Firm Shares
Closing Date and any Additional Shares Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any supplements to the Prospectus and this Agreement and
that:
22
(h) the
representations and warranties of the Company in this Agreement are true
and
correct on and as of the Firm Shares Closing Date or the Additional Shares
Closing Date, as the case may be, with the same effect as if made on the
Closing
Date and the Company has complied with all the agreements and satisfied all
the
conditions on its part to be performed or satisfied at or prior to the Firm
Shares Closing Date or the Additional Shares Closing Date, as the case may
be;
(i) no
stop
order suspending the effectiveness of the Registration Statement has been
issued
and no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened;
(ii) since
the
date of the most recent financial statements included or incorporated by
reference in the Prospectus (exclusive of any supplement thereto), there
has
been no material adverse effect on the condition (financial or otherwise),
prospects, results of operations, business or properties of the Company and
the
LLC, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto);
(iii) the
membership interest in the LLC that is held by the Company represents fifty
percent (50%) of the outstanding membership interests of the LLC:
and
(iv) except
as
set forth in the Prospectus, no options, warrant or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(i) The
Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Underwriters, at the Execution Time and the Firm Shares
Closing
Date and any Additional Shares Closing Date, letters in accordance with
Statement on Accounting Standards No. 72, dated respectively as of the Execution
Time and as of the Firm Shares Closing Date and any Additional Shares Closing
Date, in form and substance satisfactory to the Underwriters, to the effect
that:
(i) they
are
independent registered public accountants with respect to the Company within
the
meaning of the Act and the Exchange Act and the respective applicable rules
and
regulations adopted by the Commission thereunder;
(ii) in
their
opinion, the audited financial statements included or incorporated by reference
in the Registration Statement and the Prospectus and reported on by them
comply
as to form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and regulations adopted
by
the Commission;
23
(iii) on
the
basis of procedures (but not an audit in accordance with generally accepted
auditing standards) consisting of:
(1) reading
the minutes of the meetings of the stockholders, directors and executive
and
audit committees of the Company since December 31, 2004 as set forth in the
minute books through a specified date not more than five business days prior
to
the date of delivery of such letter;
(2)
performing the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described
in
Statement on Auditing Standards No. 100, Interim Financial Information, on
the
unaudited interim financial statements of the Company included or incorporated
by references in the Registration Statement and the Prospectus; and
(3) making
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company as to transactions and events
subsequent to December 31, 2004;
nothing
came to their attention which caused them to believe that:
(a) any
unaudited financial statements included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with applicable accounting requirements of the Act and
with
the related rules and regulations adopted by the Commission with respect
to
financial statements included or incorporated by reference in quarterly reports
on Form 10-Q under the Exchange Act;
(b) any
material modifications should be made to said unaudited financial statements
for
them to be in conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus;
(c) with
respect to the period subsequent to June 30, 2005, there were any changes,
at a
specified date not more than five business days prior to the date of delivery
of
such letter, in the capital stock of the Company, or increases in long-term
debt
of the Company as compared with the amounts shown on the June 30, 2005 balance
sheet included or incorporated by reference in the Registration Statement
and
the Prospectus, except in all instances for changes or decreases set forth
in
such letter, in which case the letter shall be accompanied by an explanation
by
the Company as to the significance thereof unless said explanation is not
deemed
necessary by the Underwriters.
24
(iv) Such
letter shall also state that they have performed certain other specified
procedures as a result of which they determined that certain information
of an
accounting, financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general accounting
records
of the Company) set forth in under the captions “Summary Financial Data,”“Risk
Factors,”“Capitalization,” and “Dilution,” in the Prospectus, the information
included or incorporated by reference in Items 1, 6, 7 and 12 of the Company’s
Annual Report on Form 10-K, incorporated by reference in the Registration
Statement and the Prospectus, and the information included in the “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”
included or incorporated by reference in the Company’s Quarterly Report on
Form 10-Q for the period ended June 30, 2005, incorporated by reference
in
the Registration Statement and the Prospectus, agrees with the accounting
records of the Company, excluding any questions of legal interpretation.
References
to the Prospectus in this paragraph (g) include any supplement thereto at
the
date of the letter.
(j) Subsequent
to the Execution Time or, if earlier, the dates as of which information is
given
in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have been
(i)
any change or decrease specified in the letter or letters referred to in
paragraph (g) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or properties of the Company and the LLC,
taken
as a whole, whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Prospectus (exclusive
of
any supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Underwriters, so material
and
adverse as to make it impractical or inadvisable to proceed with the offering
or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(k) Prior
to
each Closing Date, the Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably request.
(l) The
Securities shall have been approved for quotation on the NASDAQ National
Market,
subject only to official notice of issuance, and reasonably satisfactory
evidence of such actions shall have been provided to the
Underwriters.
25
(m) Prior
to
Firm Shares Closing Date, the Company shall have furnished to the Underwriters
a
letter substantially in the form of Exhibit A hereto (or in such other form
as
approved by UBS Securities LLC and CIBC World Markets Corp.) from each current
officer and director of the Company and from Mr. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, II, Tudor
Investment Corporation, The Tudor BVI Portfolio Ltd., Tudor Arbitrage Partners
L.P., Tudor Proprietary Trading, L.L.C. and Tudor Global Trading LLC addressed
to the Underwriters.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled
when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, any Closing Date by the
Underwriters. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the
office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. Reimbursement
of Underwriters’ Expenses.
If the
sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied, because of any termination pursuant to Section 10 hereof
or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by
reason of a default by any of the Underwriters, the Company will reimburse
the
Underwriters on demand for all out-of-pocket expenses (including reasonable
fees
and disbursements of counsel) that shall have been reasonably incurred by
them
in connection with the proposed purchase and sale of the
Securities.
8. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against
any and all losses, claims, damages or liabilities, joint or several, to
which
they or any of them may become subject under the Act, the Exchange Act or
other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the
registration of the Securities as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information relating
to
the Underwriters furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
26
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of
either
the Act or the Exchange Act, to the same extent as the foregoing indemnity
from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such
Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading “Underwriting,” (i) the list
of Underwriters and their respective participation in the sale of the Securities
and (ii) the fourth, fifth, seventh, twelfth, thirteenth, fourteenth, fifteenth
and sixteenth paragraphs, in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but
the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not
otherwise learn of such action and such failure results in the forfeiture
by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action,
the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs
and expenses of such separate counsel, if (i) the use of counsel chosen by
the
indemnifying party to represent the indemnified party would present such
counsel
with a conflict of interest, (ii) the actual or potential defendants in,
or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel
satisfactory to the indemnified party to represent the indemnified party
within
a reasonable time after notice of the institution of such action or (iv)
the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle
or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include an admission of fault, culpability
or a
failure to act, by or on behalf of such indemnified party.
27
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Section
8 is
unavailable to or insufficient to hold harmless an indemnified party for
any
reason, the Company and the Underwriters severally agree to contribute to
the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same)
(collectively “Losses”) to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters
on the
other from the offering of the Securities; provided, however, that in no
case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any
amount in excess of the underwriting discount or commission applicable to
the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other
in
connection with the statements or omissions which resulted in such Losses
as
well as any other relevant equitable considerations. Benefits received by
the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and
commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission
or
alleged omission to state a material fact relates to information provided
by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were
determined by pro rata allocation or any other method of allocation which
does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who
controls an Underwriter within the meaning of either the Act or the Exchange
Act
and each director, officer, employee and agent of an Underwriter shall have
the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
28
9. Default
by an Underwriter.
If, on
the Firm Shares Closing Date or any Additional Shares Closing Date, as the
case
may be, any one or more Underwriters shall fail to purchase and pay for any
of
the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite
their
names in Schedule I hereto bears to the aggregate amount of Securities set
forth
opposite the names of all the remaining Underwriters) the Securities which
the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which
the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I
hereto,
the remaining Underwriters shall have the right to purchase all, but shall
not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Firm Shares Closing Date or any Additional Shares Closing
Date,
as the case may be, shall be postponed for such period, not exceeding five
Business Days, as the Underwriters shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Underwriters, by notice given to the Company prior to delivery of and payment
for the Securities to be purchased on a Closing Date, if at any time prior
to
such time (i) trading in the Company’s Common Stock shall have been suspended by
the Commission or the NASDAQ National Market, (ii) trading in securities
generally on the New York Stock Exchange or the NASDAQ National Market shall
have been suspended or limited or minimum prices shall have been established
on
such Exchange or the NASDAQ National Market, (iii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iv)
there
shall have occurred any outbreak or escalation of hostilities, declaration
by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Underwriters, impractical or inadvisable to proceed with
the
offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any supplement thereto).
11. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company and its officers and of the Underwriters set forth
in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancelation of this Agreement.
29
12. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Underwriters, will be mailed, delivered or telefaxed to UBS
Securities LLC, Syndicate Department, facsimile number ▇▇▇-▇▇▇-▇▇▇▇ and
confirmed to Legal Department, UBS Securities LLC at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and CIBC World Markets Corp., Equity Capital Markets Department,
facsimile number ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
and
confirmed to Legal Department, facsimile number ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or, if sent to the Company, will be mailed,
delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to it at Progenics
Pharmaceuticals, Inc., ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of the Legal Department.
13. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. Applicable
Law and Jurisdiction.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed within
the
State of New York.
Except
as
set forth below, no Claim may be commenced, prosecuted or continued in any
court
other than the courts of the State of New York located in the City and County
of
New York or in the United States District Court for the Southern District
of New
York, which courts shall have jurisdiction over the adjudication of such
matters, and the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out
of
or in any way relating to this Agreement is brought by any third party against
UBS Securities LLC, CIBC World Markets Corp. or any indemnified party.
Each
of UBS Securities LLC, CIBC World Markets Corp. and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) waives all right to trial by jury in any action, proceeding
or
counterclaim (whether based upon contract, tort or otherwise) in any way
arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court
shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by
suit
upon such judgment.
15. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and
the
same agreement.
16. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
17. Definitions.
The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
30
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Base
Prospectus” shall mean the prospectus contained in the Registration Statement at
the Effective Date.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is
used
prior to filing of the Final Prospectus, together with the Basic Prospectus.
“Prospectus”
shall mean the Base Prospectus and the prospectus supplement relating to
the
Securities that are first filed pursuant to Rule 424(b) after the Execution
Time
or, if no filing pursuant to Rule 424(b) is required, shall mean the form
of
Base Prospectus and final prospectus supplement relating to the Securities
included in the Registration Statement at the Effective Date.
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements, as amended at the Execution
Time (or, if not effective at the Execution Time, in the form in which it
shall
become effective) and, in the event any post-effective amendment thereto
or any
Rule 462(b) Registration Statement becomes effective prior to the Closing
Date,
shall also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be
“Rule
424” and “Rule 462” refer to such rules under the Act.
“Rule
462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the registration statement referred to in Section 1(a) hereof.
31
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and
your
acceptance shall represent a binding agreement among the Company and the
several
Underwriters.
Very
truly yours,
Progenics
Pharmaceuticals, Inc.
By:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer, Vice President,
Finance and Operations
and Treasurer
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
UBS
SECURITIES LLC
CIBC
WORLD MARKETS CORP.
By:
UBS
Securities LLC
By:
▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Associate Director
By:
CIBC
World Markets Corp.
By:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Managing Director
32
[Form
of Lock-Up Agreement]
EXHIBIT
A
[Letterhead
of officer, director or major stockholder]
Progenics
Pharmaceuticals, Inc.
Public
Offering of Common Stock
,
2005
UBS
Securities LLC
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CIBC
World Markets Corp.
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Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), between Progenics Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), and each of you as Underwriters
named therein, relating to an underwritten public offering of Common Stock,
$0.0013 par value (the “Common Stock”), of the Company.
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of
UBS
Securities LLC and CIBC World Markets Corp., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether
by
actual disposition or effective economic disposition due to cash settlement
or
otherwise) by the undersigned or any affiliate of the undersigned or any
person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period
of
60 days after the date of the Underwriting Agreement (the “Lock-Up Period”),
other than shares of Common Stock disposed of as a bona fide gift or to a
trust
for the direct or indirect benefit of the undersigned and/or the immediate
family of the undersigned, provided that the recipient of such gift or such
trust agrees to be bound by the terms of this agreement, and provided further
that you give prior written notice of any such disposition (which notice
shall
include the number of shares being disposed of and the identity of the
recipient) to UBS Securities LLC and CIBC World Markets Corp.
33
If
(x)
during the last 17 days of the Lock-Up Period the Company issues an earnings
release or material news or a material event relating to the Company occurs;
or
(y) prior to the expiration of the Lock-Up Period, the Company announces
that it
will release earnings results during the 16-day period beginning on the last
day
of the 60-day period; the restrictions imposed in this letter shall
continue to apply until the expiration of the 18-day period beginning on
the
issuance of the earnings release or the occurrence of the material news or
material event; provided, however, that this sentence shall not apply if
the
research published or distributed on the Company is compliant under Rule
139 of
the Securities Act and the Company’s securities are actively traded as defined
in Rule 101(c)(1) of Regulation M of the Exchange Act.
The
agreement set forth above shall terminate and be of no further force and
effect
in the event that the Underwriting Agreement has not been entered into on
or
before October 14, 2005. In addition, if for any reason the Underwriting
Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours
very truly,
[Signature
of officer, director or
major
stockholder]
[Name
and
address of officer,
director
or major stockholder]
34
SCHEDULE
I
Number
of
Underwriters Securities
to be Purchased
UBS
Securities LLC
1,250,000
CIBC
World Markets Corp. 1,250,000
Total
2,500,000