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Underwriting Agreement Essay

4559 words - 19 pages

Underwriting Agreement

|Effective Date: |February 04, 2002 |
|Parties: |Aphton |
|Sectors: |Biotechnology / Pharmaceuticals |
|Law Firms: |Stroock & Stroock & Lavan, White & Case |
|Governing Law:  |New York |

345,000 Shares

Common Stock

($0.001 par value)

UNDERWRITING AGREEMENT

February 4, 2002

UBS Warburg LLC Morgan Keegan & Co., Inc.,
as Underwriters c/o UBS Warburg LLC 677 Washington Blvd. Stamford, ...view middle of the document...

Such registration statement (as so amended, if applicable) has been declared effective by the Commission and is referred to herein as the "Registration Statement." The final prospectus and all applicable amendments or supplements thereto (including any pricing supplements or prospectus supplements relating to the sale of Shares from time to time), in the form first furnished to the Underwriters, are collectively referred to herein as the "Prospectus." All references to the "Registration Statement" and the "Prospectus" also shall be deemed to include all documents incorporated therein by reference pursuant to the 1934 Act; provided, that if the Company files a registration statement with the Commission pursuant to Rule 462(b) under the Act (the "Rule 462(b) Registration Statement"), then, after such filing, all references to the "Registration Statement" also shall be deemed to include the Rule 462(b) Registration Statement. A "preliminary prospectus" shall be deemed to

-1-

refer to any prospectus used before the Registration Statement became effective and any prospectus furnished by the Company after the Registration Statement became effective which omitted information to be included in a form of prospectus filed with the Commission pursuant to Rule 424(b) under the Act. For purposes of this Agreement, all references to the Registration Statement, Prospectus or preliminary prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System ("EDGAR").

The Company and the Underwriters agree as follows:

1. Sale and Purchase. Upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, the Company agrees to sell to the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase from the Company the aggregate number of Shares set forth opposite the name of such Underwriter in Schedule A attached hereto in each case at a purchase price of $11.938 per Share. The Company is advised by you that the Underwriters intend (i) to make a public offering of their respective portions of the Shares as soon after the effective date of the Registration Statement as in your judgment is advisable and (ii) initially to offer the Shares upon the terms set forth in the Prospectus.

2. Payment and Delivery. Payment of the purchase price for the Shares shall be made to the Company by Federal Funds wire transfer against delivery of the certificates for the Shares to you through the facilities of the Depository Trust Company (DTC) for the respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on February 7, 2002 (unless another time shall be agreed to by you and the Company or unless postponed in accordance with the provisions of Section 8 hereof). The time at which such payment and delivery are...

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