4,200,000 Shares of Common
Stock
Pharmacyclics, Inc.
(a Delaware corporation)
Common Stock, par value $0.0001 per
share
EQUITY UNDERWRITING
AGREEMENT
RBC Capital
Markets Corporation
Thomas Weisel Partners LLC
As the Representatives of the
several underwriters named in
Schedule I hereto
c/o RBC Capital Markets
One Liberty Plaza, 165 Broadway
New York, NY 10006-1404
Pharmacyclics,
Inc., a Delaware corporation (the “ Company ”),
proposes to issue and sell to the underwriters named in
Schedule I hereto (the “ Underwriters
”) an aggregate of 4,200,000 shares of Common Stock,
$0.0001 par value per share (the “ Common Stock
”), of the Company (the “ Firm Shares ”).
The respective amounts of the Firm Shares to be so purchased by the
several Underwriters are set forth opposite their names in
Schedule I hereto. In addition, solely for the purpose
of covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to an
additional 630,000 shares of Common Stock (the “
Option Shares ”).
As
the Representatives, you have advised the Company (a) that you
are authorized to enter into this Underwriting Agreement on behalf
of the several Underwriters, and (b) that the several
Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Shares set forth opposite their
respective names in Schedule I , plus their pro rata
portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the
several Underwriters. The Firm Shares and the Option Shares (to the
extent the aforementioned option is exercised) are herein
collectively referred to as the “ Offered Securities
.”
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, each of the Underwriters as set forth
below in this Section.
(a) A
registration statement on Form S-3 (No. 333-112632)
relating to the Offered Securities, including a form of prospectus
(the “ initial registration statement ”), has
been filed with the Securities and Exchange Commission (the “
Commission ”) and was declared effective on
February 18, 2004 (the “ Initial Registration
Statement Effective Date ”). As used in this
Underwriting
Agreement, “ Registration Statement ” as of any
time means such registration statement in the form then filed with
the Commission, including any amendment thereto, any document
incorporated by reference therein and any information in a
prospectus or prospectus supplement deemed or retroactively deemed
to be a part thereof pursuant to Rule 430B (“
Rule 430B ”) or 430C (“
Rule 430C ”) under the Securities Act of 1933
(“ Securities Act ”) that has not been
superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of
the time of the first contract of sale for the Offered Securities,
which time shall be considered the “ Effective Date
” of the Registration Statement relating to the Offered
Securities. For purposes of this definition, information contained
in a form of prospectus or prospectus supplement that is deemed
retroactively to be a part of the Registration Statement pursuant
to Rule 430B shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
For purposes of this Underwriting Agreement, “ Applicable
Time ” means 11:45 p.m. Pacific Daylight Time on
November 7, 2006.
“
Statutory Prospectus ” as of any time means the
prospectus relating to the Offered Securities that is included in
the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any
basic prospectus or prospectus supplement deemed to be a part
thereof pursuant to Rule 430B or 430C that has not been
superseded or modified. For purposes of this definition,
information contained in a form of prospectus (including a
prospectus supplement) that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Statutory Prospectus only as of
the actual time that form of prospectus (including a prospectus
supplement) is filed with the Commission pursuant to Rule 424(b)
(“ Rule 424(b) ”) under the Securities Act.
“ Prospectus ” means the Statutory Prospectus
that discloses the public offering price and other final terms of
the Offered Securities and otherwise satisfies Section 10(a) of the
Securities Act.
“
Issuer Free Writing Prospectus ” means any
“issuer free writing prospectus,” as defined in
Rule 433 (“ Rule 433 ”) under the
Securities Act, relating to the Offered Securities in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g). “ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in
Schedule III . “ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
(b) On
the Initial Registration Statement Effectiveness Date, at the time
of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether by
post-effective amendment, incorporated report or form of
prospectus) and on the Effective Date, the Registration Statement
complied and will comply in all material respects with the
requirements of the Securities Act and the rules and regulations of
the Commission (the “ Rules and Regulations ”)
and did not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made (with respect to the
Prospectus and any supplement or amendment thereto) not misleading.
At the Applicable Time, the Registration Statement and the
Statutory Prospectus will comply in all material respects with the
requirements of the Securities Act and the Rules and Regulations,
and neither of such documents contains, or will contain, any untrue
statement of a material fact or omits, or will
2
omit, to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; 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 in reliance upon and in conformity with
information furnished herein or in writing to the Company by or on
behalf of the Underwriters for inclusion therein, it being
understood and agreed that the only such information is that
described in Section 11 hereof.
(c) If,
immediately prior to December 1, 2008 (the “ Shelf
Expiration Date ”), any of the Offered Securities remain
unsold by the Underwriters, the Company, prior to the Shelf
Expiration Date will, if it has not already done so, file a new
shelf registration statement relating to the Offered Securities, in
a form satisfactory to the Underwriters, will use commercially
reasonable efforts to cause such registration statement to be
declared effective within 180 days after the Shelf Expiration
Date, and will take all other action necessary or appropriate to
permit the public offering and sale of the Offered Securities to
continue as contemplated in the expired registration statement
relating to the Offered Securities. References herein to the
Registration Statement shall include such new shelf registration
statement.
(d) As
of the Applicable Time, neither (i) the General Use Issuer
Free Writing Prospectus(es) issued at or prior to the Applicable
Time, the Statutory Prospectus at the Applicable Time and the
information set forth in Schedule III , all considered
together (collectively, the “ General Disclosure
Package ”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by the
Underwriters specifically for use therein, it being understood and
agreed that the information furnished by the Underwriters consists
only of the information described in Section 11
hereto.
(e) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Offered Securities or until any earlier date that the
Company notified or notifies the Underwriters as described in the
next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any
time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(i) the Company has promptly notified or will promptly notify
the Underwriters and (ii) the Company has promptly amended or will
promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by the Underwriters specifically for use therein, it
being
3
understood and
agreed that the information furnished by the Underwriters consists
only of the information described in Section 11 hereto. The
Company has complied with and will comply with Rule 433 under
the Securities Act.
The
Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of Delaware, with full
power and authority (corporate and other) to own, lease and
operate, as the case may be, its properties and conduct its
business as described in the General Disclosure Package; and the
Company is duly qualified to do business as a foreign corporation
in good standing in California, which is the only jurisdiction in
which the conduct of its business requires such qualification,
except where the failure to be so qualified or be in good standing
would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the financial condition,
business, properties, or results of operations of the Company
(“ Material Adverse Effect ”). The Company has
not received a written notification that any proceeding has been
instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification, and, to the Company’s knowledge,
no proceeding has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification where such
proceeding would be expected to have a Material Adverse Effect. The
Company is in possession of and operating in material compliance
with all authorizations, licenses, certificates, consents, orders
and permits from state, federal and other regulatory authorities
that are material to the conduct of its business, all of which are
valid and in full force and effect. The Company is not in violation
of its charter or bylaws. The Company has no subsidiaries within
the meaning of Rule 405 under the Securities Act, and the
Company does not own or control, directly or indirectly, any
corporation, association or other entity.
(f) The
Company has all requisite corporate power and authority to enter
into this Underwriting Agreement and perform the transactions
contemplated hereby. This Underwriting Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement on the part of the Company, enforceable in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors’ rights generally or
by general equitable principles. The execution, delivery and
performance of this Underwriting Agreement and the consummation of
the transactions herein contemplated will not result in
(A) any violation of the charter or bylaws of the Company or
(B) a breach or violation of any of the terms and provisions
of, or constitute a default under any contract, agreement, license,
understanding, indenture, mortgage, deed of trust, loan agreement,
joint venture, lease (including without limitation any sale and
leaseback arrangement) or bond, debenture, note or other evidence
of indebtedness, to which the Company is a party or by or to which
it or its properties (including without limitation all Company
Intellectual Property (as defined in Section 1(u)) are or may
be bound or subject (each, a “ Contract ”) or to
the Company’s knowledge, any law, order, ruling, rule,
regulation, writ, assessment, injunction, judgment or decree of any
government or governmental court, agency or body, domestic or
foreign, having jurisdiction over the Company or over any of its
properties (including without limitation all Company Intellectual
Property) or Contracts (“ Government Entity ”)
or by or to which they or such of their properties or Contracts are
or may be bound or subject (each, a “ Law ”),
except in the case of this clause (B), such defaults or violations
which would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. No consent, approval,
authorization or order of or qualification with any
Government
4
Entity is
required for the execution and delivery of this Underwriting
Agreement and the consummation by the Company of the transactions
herein contemplated, except such consents (i) that will be
obtained prior to the Closing Date (as defined in Section 2)
and (ii) as may be required under the Securities Act, the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) (if applicable), the Rules and
Regulations, or under state or other securities or blue sky laws,
the NASDAQ Global Market or the National Association of Securities
Dealers, Inc. (the “ NASD ”), all of which
requirements will be satisfied in all material respects at or prior
to the Closing Date.
(g) Except
as disclosed in the General Disclosure Package, there are no
actions, suits, claims, investigations or proceedings pending or,
to the Company’s knowledge, threatened to which the Company
or, to the Company’s knowledge, to which any of its directors
or officers is a party, or of which any of their respective
properties (including without limitation all Company Intellectual
Property) or any Contract is the subject, at law or in equity,
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which, if
adversely decided, would be reasonably likely to result in a
decision, ruling, finding, judgment, decree, order or settlement
having a Material Adverse Effect or to prevent consummation of the
transactions contemplated hereby. There are no Contracts of a
character required to be described or referred to in the General
Disclosure Package, and/or filed as an exhibit to, the Registration
Statement or the Prospectus by the Securities Act, the Exchange Act
or the Rules and Regulations which have not been accurately
described in all material respects in the General Disclosure
Package, and/or filed as an exhibit to, the Registration Statement
or the Statutory Prospectus at the Applicable Time, as applicable.
To the Company’s knowledge, the Contracts described in the
General Disclosure Package are in full force and effect and are
valid agreements, enforceable by the Company, except as the
enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by
general equitable principles. To the Company’s knowledge, no
event has occurred, and no circumstance or condition exists, that
(with or without notice or lapse of time) (A) has resulted or
is reasonably likely to result in a breach, default, violation or
waiver of any Contract or any provision thereof; (B) gives or
is reasonably likely to give any party to any Contract the right to
declare a breach, default or violation of or exercise any remedy
under such Contract; (C) gives or is reasonably likely to give
any party to any Contract the right to cancel, terminate, modify or
be excused from performance of any obligations under such Contract;
or (D) has resulted or is reasonably likely to result in a
violation of any Law or in imposition of any fines, penalties,
damages, injunctions, prohibitions or other sanctions, except in
the cases of clauses (A), (B) and (C), where such breaches,
defaults, violations, waivers, remedies, cancellations,
terminations, modifications, excuses or impositions would not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(h) All
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable,
have been issued in compliance with all federal and state
securities laws, and have not been issued in violation of or
subject to any preemptive rights or other rights to subscribe for
or purchase securities. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Statutory
Prospectus at the Applicable Time and conforms in all material
respects to the statements relating thereto contained in the
General Disclosure Package (and such statements correctly
state
5
the substance
of the instruments defining the capitalization of the Company). The
Offered Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to this Underwriting Agreement and,
when issued and delivered by the Company against payment therefor
in accordance with the terms of this Underwriting Agreement, will
be duly and validly issued and fully paid and nonassessable, and
will be sold free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest. No preemptive right,
co-sale right, registration right, right of first refusal or other
similar right of stockholders exists with respect to any of the
Offered Securities or the issuance and sale thereof, other than
those that have been expressly waived prior to the date hereof,
those that will have been expressly waived prior to the Closing
Date (as defined in Section 2 below), and those that will
automatically expire upon or will not apply to the consummation of
the transactions contemplated on the Closing Date. No further
approval or authorization of any stockholder, the Board of
Directors of the Company or others is required for the issuance and
sale or transfer of the Offered Securities, except as may be
required under state or other securities or blue sky laws, or the
NASD. Except as disclosed in the General Disclosure Package and the
financial statements of the Company, and the related notes thereto,
included or incorporated by reference in the Statutory Prospectus
at the Applicable Time, the Company does not have outstanding any
options to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, registration rights,
convertible securities or obligations. The description of the
Company’s stock option plans, employee stock purchase plans
or similar arrangements, and the options or other rights granted
and exercised thereunder, set forth in the General Disclosure
Package accurately and fairly presents, in all material respects,
the information required to be shown with respect to such plans,
arrangements, options and rights.
(i) The
Company meets the eligibility requirements for the use of
Commission Form S-3 to register a primary offering of securities.
When filed with the Commission, all of the Company’s Exchange
Act reports incorporated by reference into the Statutory Prospectus
at the Applicable Time conformed, to the extent applicable, in all
material respects to the requirements of the Exchange Act and the
Rules and Regulations.
(j) PricewaterhouseCoopers
LLP, whose report on the financial statements of the Company is
filed with the Commission and is incorporated by reference in the
Registration Statement, the Statutory Prospectus at the Applicable
Time and the Prospectus, are independent registered public
accountants as required by the Securities Act and the Rules and
Regulations. Except as described in the General Disclosure Package
and as pre-approved in accordance with the requirements set forth
in Section 10A of the Exchange Act, to the Company’s
knowledge, PricewaterhouseCoopers LLP has not engaged in any
“prohibited activities” (as defined in Section 10A
of the Exchange Act) on behalf of the Company.
(k) The
financial statements of the Company, together with the related
schedules and notes, included in or incorporated by reference in
the Registration Statement and included in the General Disclosure
Package: (i) present fairly, in all material respects, the
financial position of the Company as of the dates indicated and the
results of operations and cash flows of the Company for the periods
specified; (ii) have been prepared in compliance with
requirements of the Securities Act and the Rules and Regulations
and in conformity with generally accepted accounting principles in
the United States applied on a consistent basis during the periods
presented and the schedules included in the Registration Statement
present fairly, in all material
6
respects, the
information required to be stated therein ( provided,
however , that the statements that are unaudited are subject to
normal year-end adjustments and do not contain certain footnotes
required by generally accepted accounting principles);
(iii) comply with the antifraud provisions of the Federal
securities laws; and (iv) describe accurately, in all material
respects, the controlling principles used to form the basis for
their presentation. There are no financial statements (historical
or pro forma) and/or related schedules and notes that are required
to be included in the Registration Statement, the Statutory
Prospectus at the Applicable Time and the Prospectus that are not
included as required by the Securities Act, the Exchange Act and/or
the Rules and Regulations.
(l) Subsequent
to the date as of which information is given in the General
Disclosure Package there has not been (i) any change,
development or event that might reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect,
(ii) any transaction that is material to the Company,
(iii) any material obligation, direct or contingent, incurred
by the Company, (iv) any change in the capital stock or
outstanding indebtedness of the Company that is material to the
Company, (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or
(vi) any loss or damage (whether or not insured) to the
property of the Company that has been sustained or will have been
sustained that could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(m) Except
as set forth in the General Disclosure Package: (i) the
Company (A) has good and marketable title to all properties
and assets described in the General Disclosure Package as owned by
it and (B) owns or possesses adequate licenses or other rights
of use to all patents, patent applications, patent rights,
inventions, trade secrets, know-how, trademarks, service marks,
trade names, domain names, copyrights and other proprietary rights
and technology (collectively, “ Intellectual Property
”) that is or would be necessary or used by it to conduct its
business as it is or may in the future be conducted, as such
business or potential future business is described in the General
Disclosure Package, such Intellectual Property is free and clear of
any pledge, lien, security interest, encumbrance, or other adverse
interest, whether imposed by agreement, contract, understanding,
law, equity or otherwise, except where any failure to have good and
marketable title to such properties and assets or own or possess
such adequate licenses or other rights of use to such Intellectual
Property, individually or in the aggregate, would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect; and (ii) the Company has valid and enforceable
leases, including without limitation any leases that are the
subject of any sale and leaseback arrangement, for all properties
described in the General Disclosure Package as leased by it, except
as the enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by
general equitable principles. Except as set forth in the General
Disclosure Package, the Company owns or leases all such properties
as are necessary to its operations as now conducted or as proposed
to be conducted.
(n) The
Company has timely filed all Federal, state and foreign income and
franchise tax returns required to be filed by it on or prior to the
date hereof, and has paid all taxes shown thereon as due, and there
is no tax deficiency that has been or, to the Company’s
knowledge, might be asserted against the Company that might
reasonably be expected to have a
7
Material
Adverse Effect. All tax liabilities are adequately provided for on
the books of the Company.
(o) The
Company has established and maintains a system of internal
accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in the United States and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(p) Except
as described in the General Disclosure Package, the Company’s
Board of Directors has validly appointed an Audit Committee whose
composition satisfies the requirements of Rule 4350(d)(2) of the
Rules of the National Association of Securities Dealers, Inc. (the
“ NASD Rules ”) and the Board of Directors
and/or the Audit Committee has adopted a charter that satisfies the
requirements of Rule 4350(d)(1) of the NASD Rules. The Audit
Committee has reviewed the adequacy of its charter within the past
12 months.
(q) The
Company has established and maintains “disclosure controls
and procedures” (as such term is defined in Rules 13a-15
and 15d-15 under the Exchange Act). Since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses. The Company is in compliance
in all material respects with all provisions currently in effect
and applicable to the Company of the Sarbanes-Oxley Act of 2002,
and all rules and regulations promulgated thereunder or
implementing the provisions thereof.
(r) The
Company maintains insurance with insurers of recognized financial
responsibility of the types and in the amounts generally deemed
adequate for its business and consistent with insurance coverage
maintained by similar companies in similar businesses, including,
but not limited to, insurance covering the acts and omissions of
directors and officers, real and personal property owned or leased
by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of
which insurance is in full force and effect; and the Company has no
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 would not reasonably be
expected to have a Material Adverse Effect.
(s) The
Company has not sustained since the date of the latest financial
statements included in the General Disclosure Package any losses or
interferences with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the General
Disclosure Package or other than any losses or interferences which
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
8
(t) No
labor dispute with employees of the Company exists or, to the
Company’s knowledge, is imminent which might reasonably be
expected to have a Material Adverse Effect. No collective
bargaining agreement exists with any of the Company’s
employees and, to the Company’s knowledge, no such agreement
is imminent.
(u) Except
as disclosed in the General Disclosure Package, the Company has not
received or sent any notice or has any knowledge of (i) any
actual or alleged infringement or misappropriation by others of
Intellectual Property that the Company owns or for which the
Company possesses licenses or other rights of use (
“Company Intellectual Property” ), (ii) any
Intellectual Property of others that actually or allegedly
conflicts or interferes with Company Intellectual Property or
(iii) any actual or alleged infringement or misappropriation
of Intellectual Property of others by the Company or its agents in
the conduct of its business as it is or has been conducted or as it
may in the future be conducted, in each case as such business or
potential future business is described in the General Disclosure
Package, that in each instance of the preceding cases might
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect if the subject of a decision, ruling,
finding, judgment, decree, order or settlement that is in whole or
in part unfavorable to the Company. With respect to all patents,
copyrights, trademarks and applications for any of the foregoing
included in Company Intellectual Property, the Company exclusively
holds the first rights to enforce, protect and defend such Company
Intellectual Property and to protect the subject matter thereof by
bringing claims, demands, suits and actions and proceedings against
others for any and all legal and equitable remedies by reason of
past, present and future infringement of such Company Intellectual
Property. Except as disclosed in the General Disclosure Package, no
patent, copyright, trademark or application for any of the
foregoing included in the Company Intellectual Property is
currently the subject of or subject to any license or sublicense to
a third party or the subject of or subject to any license,
contract, or agreement pursuant to which the Company is obligated
to transfer or grant to others any right, title or interest in or
to any such Company Intellectual Property under any circumstances,
except for such licenses, sublicenses, transfers and grants that
would not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Effect. To the Company’s
knowledge, no claim of any patent included in Company Intellectual
Property is unenforceable or invalid, except for such
unenforceability or invalidity that would not reasonably be
expected to result, individually or in the aggregate, in a Material
Adverse Effect. To the Company’s knowledge, no action, suit,
proceeding, hearing, investigation, charge, complaint, claim or
demand has occurred, is pending, has been made, or is threatened,
that challenges the validity, enforceability, scope, use, or
ownership of, that may result in the Company becoming obligated to
transfer or grant to others any right, title or interest in or to
Company Intellectual Property, nor to the Company’s knowledge
is there any reasonable basis on which a third party could bring
any such action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand. To the Company’s knowledge, all
patent applications licensed to the Company for which the Company
controlled or controls prosecution, and all patent applications
owned by the Company (collectively, “Company Patent
Applications” ), as well as all patent applications from
which unexpired patents licensed to or owned by the Company
(collectively “Company Patents” ) issued and for
which the Company controlled or controls prosecution, were duly and
properly filed with the U.S. Patent and Trademark Office (the
“ PTO ”) or with appropriate foreign and
international patent authorities, as applicable, and were filed and
currently are in compliance with statutory and other legal
requirements (including without limitation payment of filing,
prosecution and
9
maintenance
fees). To the Company’s knowledge, the Company Patent
Applications are currently pending with the applicable authorities
and have not been abandoned or finally disallowed. For each of the
U.S. Company Patents and applications from which they issued, the
U.S. Company Patent Applications, and, to the Company’s
knowledge, the non-U.S. Company Patents and applications from which
they issued and the non-U.S. Company Patent Applications, there has
been compliance with any applicable PTO duty of candor and
disclosure and any applicable ex-U.S. duties, responsibilities or
obligations similar or corresponding thereto. Each former and
current employee and independent contractor of the Company has
signed and delivered one or more written contracts with the Company
pursuant to which such employee or independent contractor assigns
to the Company all of his, her or its rights in and to any
Intellectual Property made, conceived, reduced to practice,
authored or discovered in the course of employment by or
performance of services for the Company.
(v) The
Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and is listed on the NASDAQ Global Market, and the
Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under
the Exchange Act or delisting the Common Stock from the NASDAQ
Global Market. Except as described in the General Disclosure
Package, the Company has not received any notification that the
Commission or the NASD is contemplating terminating such
registration or listing. The Company has taken all actions
necessary to list the Offered Securities for quotation on the
NASDAQ Global Market.
(w) The
Company is not and, after giving effect to the offering and sale of
the Offered Securities, will not be an “investment
company,” as such term is defined in the Investment Company
Act of 1940, as amended.
(x) The
Company has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the
distribution of the Offered Securities, will not distribute, any
offering materials in connection with the offering and sale of the
Offered Securities other than the Registration Statement, the
Prospectus or, subject to Section 8, any other materials
permitted by the Securities Act and the Rules and
Regulations.
(y) Neither
the Company nor, to its knowledge, any of its affiliates has taken,
directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities. The
Company acknowledges that the Underwriters may engage in passive
market making transactions in the Offered Securities on the NASDAQ
Global Market in accordance with Regulation M under the
Exchange Act.
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