7,650,000 Shares
Shares of Common Stock
($0.001 par value)
PLACEMENT AGENT AGREEMENT
SG Cowen &
Co., LLC
1221 Avenue of the Americas
New York, New York 10020
GenVec, Inc., a
Delaware corporation (the “ Company ”), pursuant
to the terms of this Placement Agent Agreement (this “
Agreement ”) and the Purchase Agreements in the form
of Exhibit A attached hereto (the “ Purchase
Agreements ”) entered into with the purchasers identified
therein (each a “ Purchaser ” and, collectively,
the “ Purchasers ”), proposes to sell to the
Purchasers an aggregate of 7,650,000 shares of Common Stock, par
value $0.001 per share, together with associated stock purchase
rights (the “ Common Stock ”) of the Company.
The aggregate of 7,650,000 shares of Common Stock so proposed to be
sold by the Company is hereinafter referred to as the “
Stock .” The Company hereby confirms its agreement
with SG Cowen & Co., LLC (“ SG Cowen ” or
the “ Placement Agent ”) as follows (certain
terms herein are defined in Section 13 hereof):
Section 1. Agreement To Act As Placement
Agent . On the basis
of the representations, warranties and agreements of the Company
herein contained, and subject to all the terms and conditions of
this Agreement:
(a) The Company
hereby authorizes SG Cowen to act as its exclusive agent (in such
capacity, the “ Placement Agent ”) to solicit
offers for the purchase of all or part of the Stock from the
Company in connection with the proposed offering of the Stock (the
“ Offering ”). Until the Closing Date, the
Company shall not, without the prior consent of the Placement
Agent, solicit or accept offers to purchase Stock otherwise than
through the Placement Agent.
(b) The Placement
Agent agrees, as agent of the Company, to use its commercially
reasonable efforts to solicit offers to purchase the Stock from the
Company on the terms and subject to the conditions set forth in the
Base Prospectus (as defined below) and the Prospectus Supplement
(as defined below). The Placement Agent shall make commercially
reasonable efforts to assist the Company in obtaining performance
by each Purchaser whose offer to purchase Stock has been solicited
by the Placement Agent and accepted by the Company, but the
Placement Agent shall not, except as otherwise provided in this
Agreement, be obligated to disclose the identity of any potential
purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Under no
circumstances will the Placement Agent be obligated to purchase any
Stock for its own account and, in soliciting purchases of Stock,
the Placement Agent shall act solely as the agent of the Company
and not as principal. Notwithstanding the foregoing and except as
otherwise provided in Section 1(c) , it is understood
and agreed that the Placement Agent (or its affiliates) may, solely
at its discretion and without any obligation to do so, purchase
Stock as principal.
(c) Subject to the
provisions of this Section 1 , offers for the purchase
of Stock may be solicited by the Placement Agent as agent for the
Company at such times and in such amounts as the Placement Agent
deems advisable. The Placement Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase
Stock received by it as agent of the Company. The Company shall
have the right to accept offers to purchase the Stock and may
reject any such offer, in whole or in part. The Placement Agent
shall have the right, in its discretion reasonably exercised,
without notice to the Company, to reject any offer to purchase
Stock received by it, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained
herein.
(d) The purchases
of the Stock by the Purchasers shall be evidenced by the execution
of the Purchase Agreements by each of the parties
thereto.
(e) As
compensation for services rendered, on the Closing Date (as defined
below) the Company shall pay or cause to be paid to the Placement
Agent by wire transfer of immediately available funds to an account
or accounts designated by the Placement Agent, an amount equal to
six percent (6%) of the aggregate gross proceeds received by the
Company from the sale of the Stock on such Closing Date.
(f) No Stock which
the Company shall have agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the
Company, until such Stock shall have been delivered to the
Purchaser thereof against payment therefor by such Purchaser. If
the Company shall default in its obligation to deliver Stock to a
Purchaser whose offer has been accepted, the Company shall
indemnify and hold the Placement Agent harmless against any loss,
claim or damage arising from or as a result of such default by the
Company.
Section 2. Representations and
Warranties of the Company . The Company represents and warrants to, and
agrees with, the Placement Agent and the Purchasers
that:
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(a) The Company
meets the requirements for use of Form S-3, under the Securities
Act of 1933, as amended (the “ Securities Act
”), and has filed with the Securities and Exchange Commission
(the “ Commission ”) a registration statement on
such Form S-3 (Registration File No. 333-123968), which became
effective as of April 28, 2005 (the “ Registration
Statement ”) for the registration under the Securities
Act of the Stock. The Registration Statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act, and
complies in all material respects with such Rule. The Company will
file with the Commission pursuant to Rule 424(b) under the
Securities Act, and the rules and regulations (the “ Rules
and Regulations ”) of the Commission promulgated
thereunder, supplements to the form of prospectus included in such
registration statement relating to the placement of the Stock and
the plan of distribution thereof and has provided the Placement
Agent with copies of such supplement. The Registration Statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the “ Registration
Statement ”; the prospectus relating to the Stock to be
sold by the Company in the form in which it appears in the
Registration Statement is hereinafter called the “ Base
Prospectus ”; and the supplemented form of a prospectus,
in the form in which it will be filed with the Commission pursuant
to Rule 424(b) (including the Base Prospectus, as so supplemented)
is hereinafter called the “ Prospectus Supplement
.” Any reference herein to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to
refer to and include the documents incorporated by reference
therein (the “ Incorporated Documents ”)
pursuant to Item 12 of Form S-3, which were filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), on or before the date of this
Agreement, or the issue dates of the Base Prospectus or the
Prospectus Supplement, 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 or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the
case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included,” “described,” “set
forth” or “stated” in the Registration Statement,
the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus or the Prospectus Supplement, as the
case may be. No stop order suspending the effectiveness of the
Registration Statement or the use of the Base Prospectus or the
Prospectus Supplement has been issued, and no proceeding for any
such purpose is pending or has been initiated or, to the
Company’s knowledge, is threatened by the
Commission.
(b) The
Registration Statement (and any further documents to be filed with
the Commission) contains all exhibits and schedules as required by
the Securities Act. The Registration Statement and any
post-effective amendment thereto, at the time it became effective,
complied in all material respects with the Securities Act and the
Exchange Act and the applicable Rules and Regulations and did not
and, as amended or
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supplemented,
if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The
Base Prospectus and Prospectus Supplement, each as of its
respective date, comply in all material respects with the
Securities Act and the Exchange Act and the applicable Rules and
Regulations. The Base Prospectus and Prospectus Supplement, as
amended or supplemented, did not and will not contain as of the
date thereof any untrue statement of a material fact or omit 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. The Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the applicable Rules and
Regulations, and none of such documents, when they were filed with
the Commission, contained any untrue statement of a material fact
or omitted to state a material fact necessary to make the
statements therein not misleading; and any further documents so
filed and incorporated by reference in the Base Prospectus or
Prospectus Supplement, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and
Regulations, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the Company makes no representations
or warranties as to information, if any, contained in or omitted
from the Prospectus Supplement or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
the Placement Agent specifically for use in the Prospectus
Supplement, which information the parties hereto agree is limited
to the Placement Agent’s Information as defined in
Section 15 . No post-effective amendment to the
Registration Statement reflecting any facts or events arising after
the date thereof which represent, individually or in the aggregate,
a fundamental change in the information set forth therein is
required to be filed with the Commission. There are no documents
required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been filed
as required pursuant to the Securities Act or (y) will not be
filed within the requisite time period. There are no contracts or
other documents required to be described in the Base Prospectus or
Prospectus Supplement, or to be filed as exhibits or schedules to
the Registration Statement, which have not been described or filed
as required.
(c) The Company
has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration
Statement and of each consent and certificate of experts filed as a
part thereof, and conformed copies of the Registration Statement
(without exhibits) and the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at
such places as the Placement Agent reasonably requests. Neither the
Company nor any of its directors and officers has distributed and
none of them will distribute, prior to the completion of the
distribution of Stock, any offering material in connection with the
offering and sale of the Stock other than the Base Prospectus, the
Prospectus Supplement, the Registration Statement, copies of the
documents incorporated by reference therein and any other materials
permitted by the Securities Act.
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(d) The Company
has been duly organized and is validly existing as a corporation in
good standing (or the equivalent thereof, if any) under the laws of
its jurisdiction of incorporation, is duly qualified to do business
and is in good standing (or the equivalent thereof, if any) as a
foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or
hold its properties and to conduct the businesses in which it is
engaged, except where the failure to be so qualified and in good
standing or have such power or authority would not have, singularly
or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, business,
properties or prospects of the Company taken as a whole (a “
Material Adverse Effect ”).
(e) The Stock to
be issued and sold by the Company hereunder and under the Purchase
Agreements has been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and nonassessable and free of
any preemptive or similar rights. The Stock conforms in all
materials respects to the description thereof contained in the Base
Prospectus and the Prospectus Supplement.
(f) The Company
has an authorized and outstanding capitalization as set forth in
the Base Prospectus and the Prospectus Supplement, all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable, have been issued in compliance with federal and
state securities laws, and conform to the description thereof
contained in the Base Prospectus and the Prospectus Supplement.
None of the outstanding shares of Common Stock was issued in
violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company
that has been granted by the Company other than those accurately
described in the Base Prospectus and the Prospectus Supplement. The
description of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights
granted thereunder, as described in the Base Prospectus and the
Prospectus Supplement accurately and fairly present the information
required to be shown with respect to such plans, arrangements,
options and rights.
(g) The Company
has the full right, power and authority to enter into this
Agreement, the Purchase Agreements and the Escrow Agreement dated
as of the date herewith by and between the Company and the escrow
agent thereto (the “ Escrow Agreement ”) and to
perform and to discharge its obligations hereunder and thereunder;
and each of this Agreement and the Purchase Agreements has been
duly authorized, executed and delivered by the Company, and
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(h) The execution,
delivery and performance of this Agreement, the Purchase Agreements
and the Escrow Agreement by the Company and the consummation of
the
5
transactions
contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will
such actions result in any violation of, the provisions of the
charter or by-laws of the Company, any statute, law, rule or
regulation applicable to the Company or any judgment, order or
decree of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or
assets.
(i) There is no
franchise, contract, lease, instrument or other document of a
character required by the Securities Act or the Rules and
Regulations to be described in the Base Prospectus and the
Prospectus Supplement, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as
required; and all statements summarizing any such franchises,
contracts, leases, instruments or other documents or legal matters
contained in the Registration Statement are accurate and complete
in all material respects. Other than as described in the Base
Prospectus and the Prospectus Supplement, no material contract has
been suspended or terminated for convenience or default by the
Company or any of the other parties thereto, the Company has not
sent or received any communication regarding intent not to renew
any such material contract, and the Company has not received notice
or any other knowledge of any such pending or threatened
suspension, termination or non-renewal, except for such pending or
threatened suspensions, terminations or non-renewals that would not
reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect.
(j) All existing
minute books of the Company since January 1, 2002, including
all existing records of all meetings and actions of the board of
directors (including, Audit, Compensation, Nomination/Corporate
Governance and other board committees) and stockholders of the
Company through the date of the latest meeting and action
(collectively, the “ Corporate Records ”) have
been made available to the Placement Agent and counsel for the
Placement Agent. All such Corporate Records are complete and
accurately reflect, in all material respects, all transactions
referred to in such Corporate Records. There are no transactions,
agreements or other actions of the Company that are not properly
approved and/or recorded in the Corporate Records.
(k) No consent,
approval, authorization, filing with or order of or registration
with, any court or governmental agency or body is required in
connection with the transactions contemplated herein and in the
Purchase Agreements and the Escrow Agreement, except such as have
been obtained or made under the Securities Act or the Exchange Act
and such as may be required by securities or blue sky laws of any
jurisdiction in connection with the offer and sale of the Stock by
the Company in the manner contemplated herein and in the Base
Prospectus and the Prospectus Supplement.
(l) The Common
Stock is registered pursuant to Section 12(g) of the Exchange Act
and is listed on the Nasdaq National Market, and the Company has
taken no action designed to terminate, or reasonably likely to have
the effect of terminating, the
6
registration of
the Common Stock under the Exchange Act or delisting the Common
Stock from the Nasdaq National Market, and the Company has received
no written notice from Nasdaq relating to the delisting of the
Common Stock on the Nasdaq National Market. The Company has filed,
or promptly following the execution of this Agreement will file, a
Notification Form for Listing of Additional Shares with the Nasdaq
National Market with respect to the Stock.
(m) Except as
described in the Base Prospectus and the Prospectus Supplement,
(i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock
or shares of any other capital stock or other equity interests of
the Company, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock or
other securities of the Company, except persons who have waived
said rights or who have been given timely and proper notice and
have failed to exercise such rights and (iii) except as
provided herein, no person has the right to act as an underwriter,
placement agent or financial advisor to the Company in connection
with and as a result of the offer and sale of the Stock, in the
case of each of the foregoing clauses (i), (ii) and (iii),
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Stock as contemplated
thereby or otherwise. Except as described in the Base Prospectus
and the Prospectus Supplement, no person has the right, contractual
or otherwise, to cause the Company to register under the Securities
Act any shares of Common Stock or shares of any other capital stock
or other securities of the Company, or to include any such shares
or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Stock as contemplated thereby or otherwise, except for persons and
entities who have expressly waived such right or who have been
given timely and proper notice and have failed to exercise such
right within the time or times required under the terms and
conditions of such right, and the Company is not required to file
any registration statement for the registration of any securities
of any person or register any such securities pursuant to any other
registration statement filed by the Company under the Securities
Act for a period of at least 90 days after the date
hereof.
(n) As of the
dates specified, the consolidated financial statements of the
Company, together with related notes and schedules, included or
incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement complied and will comply in
form in all material respects with Regulation S-X promulgated
by the Commission with respect thereto. Such financial statements
and related notes and schedules have been prepared in accordance
with United States generally accepted accounting principles,
consistently applied, during the period involved (except
(i) as may be otherwise indicated in such financial statements
or notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material
respects the consolidated financial position of the Company as of
the dates thereof and its results of operations and cash flows for
the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
7
(o) Except as set
forth in the Base Prospectus and the Prospectus Supplement, there
is no legal or governmental proceeding pending to which the Company
is a party or of which any property or assets of the Company is the
subject which is required to be described in the Base Prospectus or
the Prospectus Supplement and is not described therein, or which,
singularly or in the aggregate, if determined adversely to the
Company would reasonably be expected to have a Material Adverse
Effect or would prevent or materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement; and to the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p) Except as
described in the Registration Statement, the Base Prospectus and
the Prospectus Supplement, the Company has good and marketable
title to all property (real and personal), free and clear of any
claim, lien, encumbrance, security interest, defect or restriction
upon voting or transfer or any other claim of any kind (“
Liens ”), except for those Liens that do not
materially interfere with the use made or proposed to be made of
such property by the Company or that would not have a Material
Adverse Effect.
(q) The Company is
not (i) in violation of any provision of its charter or
bylaws, (ii) in default in any respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term,
covenant, or condition 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 by which it is bound or to which any of its property or
assets is subject, or (iii) in violation in any respect of any
statute, law, rule, regulation, ordinance, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company, or any of its properties, as
applicable, (including, without limitation, those administered by
the Food and Drug Administration of the U.S. Department of Health
and Human Services (the “ FDA ”) or by any
foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the
FDA), except, with respect to clauses (ii) and (iii), any
violations or defaults which, singularly or in the aggregate, would
not have a Material Adverse Effect.
(r) The Company
does not have any employee benefit “plan” as defined in
Section 3(3) of the United States Employee Retirement Income
Security Act of 1974 (“ ERISA ”), that is
subject to Section 302 of ERISA or Title IV of
ERISA.
(s) The Company
carries, or is covered by, insurance in such amounts and covering
such risks as it reasonably believes is adequate for the conduct of
its businesses and the value of its properties and as is customary
for companies engaged in similar businesses in similar
industries.
(t) The Company
has made all filings, applications and submissions required by, and
possesses all approvals, licenses, certificates, certifications,
clearances, consents, exemptions, marks, notifications, orders,
permits and other authorizations issued by, the
8
appropriate
federal, state or foreign regulatory authorities (including,
without limitation, the FDA, and any other foreign, federal, state
or local government or regulatory authorities performing functions
similar to those performed by the FDA) necessary to conduct its
businesses (collectively, “ Permits ”), except
for such Permits which the failure to obtain would not have a
Material Adverse Effect, and the Company has not received any
actual notice of any proceeding relating to revocation or
modification of any such Permit, except as described in the Base
Prospectus and the Prospectus Supplement; and the Company is in
compliance in all material respects with all laws and regulations
relating to the conduct of its business as conducted as of the date
hereof.
(u) KPMG LLP, who
have certified certain financial statements of the Company and
delivered their report with respect to the audited financial
statements and schedules included in the Base Prospectus, the
Prospectus Supplement or the Registration Statement, or
incorporated by reference therein, as the case may be, are
independent registered public accountants with respect to the
Company within the meaning of the Securities Act and the Rules and
Regulations.
(v) 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 would not have
a Material Adverse Effect, except as set forth in the Base
Prospectus and the Prospectus Supplement) 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 would not have a
Material Adverse Effect, except as set forth in the Base Prospectus
and the Prospectus Supplement.
(w) The principal
executive officer and principal financial officer of the Company
have made all certifications required by the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the “ Sarbanes-Oxley Act ”), and the
statements contained in any such certification are complete and
correct in all material respects. The Company maintains
“disclosure controls and procedures” (as defined in
Rule 13a-14(c) under the Exchange Act), and such controls and
procedures are designed (i) to ensure that information
required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the
Commission’s rules and forms and (ii) to ensure that
information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is accumulated and
communicated to the Company’s management, including its
principal executive officer and principal financial officer, as
appropriate to allow timely decisions regarding required
disclosure. The Company does not have any material weaknesses in
internal controls, and there has been no fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal controls. The
Company is otherwise in compliance in all material respects with
all applicable effective provisions of the Sarbanes-Oxley Act and
the rules and regulations promulgated by the Commission with
respect thereto.
9
(x) 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
accountability of assets; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(y) The Company
(i) is in compliance in all material respects 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) has received and is in compliance with all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) has not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated by the Base Prospectus and the Prospectus
Supplement.
(z) Except as
described in the Base Prospectus and the Prospectus Supplement, the
Company owns, is licensed to use or otherwise possesses adequate
right to use the patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights and know-how,
including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems, processes or
procedures (collectively, the “ Intellectual Property
”) reasonably necessary to carry on the business conducted by
it, except to the extent that the failure to own, be licensed to
use or otherwise possess adequate rights to use such Intellectual
Property would not reasonably be expected to have a Material
Adverse Effect; except as described in the Base Prospectus and the
Prospectus Supplement, the Company has not received any notice of
infringement of or conflict with, and the Company has no knowledge
of any infringement of or conflict with, asserted rights of others
with respect to its Intellectual Property which could reasonably be
expected to result in a Material Adverse Effect; except as
described in the Base Prospectus and the Prospectus Supplement, the
discoveries, inventions, products or processes of the Company
referred to in the Base Prospectus and the Prospectus Supplement do
not, to the knowledge of the Company, infringe or conflict with any
right or patent of any third party, or any discovery, invention,
product or process which is the subject of a patent application
filed by any third party, which infringement or conflict could
reasonably be expected to have a Material Adverse Effect; except as
described in the Base Prospectus and the Prospectus Supplement, the
Company is not obligated to pay a royalty, grant a license or
provide other consideration to any third party in connection with
its patents, patent rights, licenses, inventions, trademarks,
service
10
marks, trade
names, copyrights and know-how; and no third party, including any
academic or governmental organization, possesses rights to the
Intellectual Property which, if exercised would reasonably be
expected to have a Material Adverse Effect.
(aa) Since the
respective dates as of which information is given in the Base
Prospectus and the Prospectus Supplement, the studies, tests and
preclinical and clinical trials conducted by or on behalf of the
Company that are described in the Base Prospectus and the
Prospectus Supplement were and, if still pending, are being
conducted in all material respects in accordance with experimental
protocols, procedures and controls pursuant to, where applicable,
accepted professional scientific standards; the descriptions of the
results of such studies, tests and trials contained in the Base
Prospectus and the Prospectus Supplement are accurate in all
material respects; except as described in the Base Prospectus and
the Prospectus Supplement, the Company has not received any notices
or correspondence from the FDA or any foreign, state or local
governmental body exercising comparable authority requiring the
termination, suspension or material modification of any studies,
tests or preclinical or clinical trials conducted by or on behalf
of the Company which termination, suspension or material
modification would reasonably be expected to have a Material
Adverse Effect.
(bb) The Company
has not failed to file with the applicable regulatory authorities
(including, without limitation, the FDA or any foreign, federal,
state or local governmental or regulatory authority performing
functions similar to those performed by the FDA) any filing,
declaration, listing, registration, report or submission; all such
filings, declarations, listings, registrations, reports or
submissions were in compliance with applicable laws when filed and
no deficiencies have been asserted by any applicable regulatory
authority (including, without limitation, the FDA or any foreign,
federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA) with
respect to any such filings, declarations, listings, registrations,
reports or submissions.
(cc) No
relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required by the Securities Act to be described in the Base
Prospectus and the Prospectus Supplement which is not so
described.
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