Exhibit 1.1
La Jolla
Pharmaceutical Company
15,614,834 shares of Common Stock
($0.01 par value per share)
Warrants to purchase
3,903,708 shares of Common Stock
($0.01 par value per share)
Underwriting
Agreement
May 6,
2008
Underwriting
Agreement
May 6,
2008
UBS
Securities LLC
Canaccord Adams Inc.
as Managing Underwriters
c/o UBS
Securities LLC
299 Park Avenue
New York, New York 10171-0026
c/o
Canaccord Adams Inc.
99 High Street, 11 th Floor
Boston, Massachusetts 02110
Ladies
and Gentlemen:
La
Jolla Pharmaceutical Company, a Delaware corporation (the “
Company ”), proposes to issue and sell to the
underwriters named in Schedule A annexed hereto (the
“ Underwriters ”), for whom you are acting as
representatives, an aggregate of (i) 15,614,834 shares (the “
Shares ”) of common stock, $0.01 par value per share
(the “ Common Stock ”), of the Company, and
(ii) warrants in the form of Exhibit C attached
hereto to purchase 3,903,708 shares of Common Stock (the
“ Warrants ” and, together with the Shares, the
“ Securities ”). The shares of Common Stock
issuable upon exercise of the Warrants are hereinafter referred to
as the Warrant Shares. The Securities are described in the
Prospectus which is referred to below.
The
Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the “ Act
”), with the Securities and Exchange Commission (the “
Commission ”) two registration statements: a
registration statement on Form S-3, File No. 333-101499 (the
“ first registration statement ”), and another
registration statement on Form S-3, File No. 333-145009 (the
“ second registration statement ” and,
collectively with the first registration statement, the “
registration statements ”). The registration
statements each include a prospectus. The registration statements
incorporate by reference documents which the Company has filed, or
will file, in accordance
with the
provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the “
Exchange Act ”). Amendments to such registration
statements, if necessary or appropriate, have been similarly
prepared and filed with the Commission in accordance with the Act.
Such registration statements, as so amended, have become effective
under the Act.
Except
where the context otherwise requires, “ Registration
Statements ,” as used herein, means the registration
statements, each as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of
the Act, as such section applies to the respective Underwriters
(the “ Effective Time ”), including (i) all
documents filed as a part thereof or incorporated or deemed to be
incorporated by reference therein, (ii) any information
contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent
such information is deemed, pursuant to Rule 430B or
Rule 430C under the Act, to be part of the registration
statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of Securities
pursuant to Rule 462(b) under the Act.
The
Company has furnished to you, for use by the Underwriters and by
dealers in connection with the offering of the Securities, copies
of one or more preliminary prospectus supplements and the documents
incorporated by reference therein, relating to the Securities.
Except where the context otherwise requires, “ Pre-Pricing
Prospectus ,” as used herein, means the preliminary
prospectus supplement dated May 6, 2008, in the form so
furnished, including each basic prospectus (whether or not in
preliminary form) furnished to you by the Company and attached to
or used with such preliminary prospectus supplement. Except where
the context otherwise requires, “ Basic Prospectuses
,” as used herein, means the basic prospectuses (whether or
not in preliminary form) included in the Registration Statements
and any basic prospectus furnished to you by the Company and
attached to or used with the Prospectus Supplement (as defined
below).
Except
where the context otherwise requires, “ Prospectus
Supplement ,” as used herein, means the final prospectus
supplement, relating to the Securities, filed by the Company with
the Commission pursuant to Rule 424(b) under the Act on or before
the second business day after the date hereof (or such earlier time
as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in
connection with the offering of the Securities.
Except
where the context otherwise requires, “ Prospectus
,” as used herein, means the Prospectus Supplement together
with the Basic Prospectus attached to or used with the Prospectus
Supplement.
“
Permitted Free Writing Prospectuses ,” as used herein,
means the documents listed on Schedule B attached
hereto and each “road show” (as defined in
Rule 433 under the Act), if any, related to the offering of
the Securities contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act).
The Underwriters have not offered or sold and will not offer or
sell, without the Company’s consent, any Securities by means
of any “free writing prospectus” (as defined in
Rule 405 under the Act) that is required to be filed by
the
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Underwriters with the Commission pursuant to Rule 433 under
the Act, other than a Permitted Free Writing Prospectus.
“
Covered Free Writing Prospectuses ,” as used herein,
means (i) each “issuer free writing prospectus”
(as defined in Rule 433(h)(1) under the Act), if any, relating
to the Securities, which is not a Permitted Free Writing Prospectus
and (ii) each Permitted Free Writing Prospectus.
“
Disclosure Package ,” as used herein, means the
Pre-Pricing Prospectus together with the Permitted Free Writing
Prospectuses, if any.
Any
reference herein to the registration statements, the Registration
Statements, any Basic Prospectus, the Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the documents,
if any, incorporated by reference, or deemed to be incorporated by
reference, therein (the “ Incorporated Documents
”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “ amend
,” “ amendment ” or “
supplement ” with respect to the Registration
Statements, any Basic Prospectus, the Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act on or after the initial
effective date of the first registration statement, or the date of
such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing
Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
As used
in this Agreement, “ business day ” shall mean a
day on which the New York Stock Exchange (the “ NYSE
”) is open for trading. The terms “herein,”
“hereof,” “hereto,”
“hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used
herein, is not exclusive.
The
Company and the Underwriters agree as follows:
1. Sale and Purchase .
Upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company the number of Securities set forth opposite the name of
such Underwriter in Schedule A attached hereto, subject
to adjustment in accordance with Section 8 hereof, in each case at
a purchase price per unit of $1.805975. As used herein, a
“unit” shall be one Share and a Warrant to purchase
0.25 shares of Common Stock. The Company is advised by you
that the Underwriters intend (i) to make a public offering of
their respective portions of the Securities as soon after the
effectiveness of this Agreement as in your judgment is advisable
and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus. You may from time to time increase or
decrease the public offering price after the initial public
offering to such extent as you may determine.
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2. Payment and Delivery
. Payment of the purchase price for the Securities 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 ”) and physical
delivery of the Warrants to you for the respective accounts of the
Underwriters or any other person or entity you so designate. Such
payment and delivery shall be made at 10:00 A.M., New York City
time, on May 12, 2008 (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 to be made is hereinafter sometimes called the “
time of purchase .” Electronic transfer of the Shares
shall be made to you at the time of purchase in such names and in
such denominations as you shall specify. Physical delivery of the
Warrants shall be made to such persons or entities you specify and
in such denominations as you shall specify at the time of
purchase.
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Deliveries
of the documents described in Section 6 hereof with respect to the
purchase of the Securities shall be made at the offices of Dewey
& LeBoeuf LLP at 1301 Avenue of the Americas, at 9:00 A.M., New
York City time, on the date of the closing of the purchase of the
Securities.
3. Representations and
Warranties of the Company . The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statements have
heretofore become effective under the Act or, with respect to any
registration statement to be filed to register the offer and sale
of Securities pursuant to Rule 462(b) under the Act, will be filed
with the Commission and become effective under the Act no later
than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Securities; no
stop order of the Commission preventing or suspending the use of
any Basic Prospectus, the Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statements,
has been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are contemplated
by the Commission;
(b) the Registration Statements
complied when they became effective, comply as of the date hereof
and, as amended or supplemented, at the time of purchase and at all
times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Securities, will comply, in all material respects, with
the requirements of the Act; the conditions to the use of Form S-3
in connection with the offering and sale of the Securities as
contemplated hereby have been satisfied; the Registration
Statements meet, and the offering and sale of the Securities as
contemplated hereby complies with, the requirements of
Rule 415 under the Act; the Registration Statements did not,
as of each Effective Time, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the Pre-Pricing Prospectus complied, at the time it was
filed with the Commission, and complies as of the date hereof, in
all material respects with the requirements of the Act; at no time
during the period that begins on the earlier of the date of such
Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was
filed with the Commission and ends at the time of purchase did or
will the Pre-Pricing Prospectus, as then amended or supplemented,
include an 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, and at no time during such period did or will the
Pre-Pricing Prospectus, as then amended or supplemented, together
with any combination of one or more of the then issued Permitted
Free Writing Prospectuses, if any, include an 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; each Basic Prospectus
complied or will comply, as of its date and the date it
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was or will be
filed with the Commission, complies as of the date hereof (if filed
with the Commission on or prior to the date hereof) and, at the
time of purchase and at all times during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Securities, will comply, in all
material respects, with the requirements of the Act; at no time
during the period that begins on the earlier of the date of such
Basic Prospectus and the date such Basic Prospectus was filed with
the Commission and ends at the time of purchase did or will any
Basic Prospectus, as then amended or supplemented, include an
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, and at no time during such period did or will any Basic
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, include an 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; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase and at all times during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Securities, in
all material respects, with the requirements of the Act (in the
case of the Prospectus, including, without limitation, Section
10(a) of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the
later of the time of purchase and the end of the period during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Securities did
or will any Prospectus Supplement or the Prospectus, as then
amended or supplemented, include an 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; at no time during the period
that begins on the date of such Permitted Free Writing Prospectus
and ends at the time of purchase did or will any Permitted Free
Writing Prospectus include an 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 representation or warranty in this
Section 3(b) with respect to any statement contained in the
Registration Statements, any Basic Prospectus, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning an
Underwriter and furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed, or will be filed,
with the Commission or at the time such document became or becomes
effective, as applicable, complied or will comply, in all material
respects, with the requirements of the Exchange Act and did not or
will not,
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as applicable,
include an 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;
(c) prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any Securities by means of any “prospectus”
(within the meaning of the Act) or used any
“prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Securities, in each case
other than the Pre-Pricing Prospectus and the Permitted Free
Writing Prospectuses, if any; the Company has not, directly or
indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rules 164 and 433
under the Act; assuming that such Permitted Free Writing Prospectus
is so sent or given after such Permitted Free Writing Prospectus
was, if required pursuant to Rule 433(d) under the Act, filed with
the Commission, the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of
Rule 164 and Rule 433 (without reliance on subsections (b),
(c) and (d) of Rule 164); the conditions set forth
in one or more of subclauses (i) through (iv), inclusive, of
Rule 433(b)(1) under the Act are satisfied, and the registration
statements, as initially filed with the Commission, each includes a
prospectus that, other than by reason of Rule 433 or
Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or
(g) of Rule 164 under the Act, from using, in connection with
the offer and sale of the Securities, “free writing
prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405
under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to
the offering of the Securities contemplated by the Registration
Statements, without taking into account any determination by the
Commission pursuant to Rule 405 under the Act that it is not
necessary under the circumstances that the Company be considered an
“ineligible issuer”; the parties hereto agree and
understand that the content of any and all “road shows”
(as defined in Rule 433 under the Act) related to the offering
of the Securities contemplated hereby is solely the property of the
Company;
(d) as of the date of this Agreement,
the Company has an authorized capitalization as set forth in the
sections of the Pre-Pricing Prospectus and the Prospectus entitled
“Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free
Writing Prospectus) and issued and outstanding capital stock as set
forth in the sections of the Pre-Pricing Prospectus and the
Prospectus entitled “The offering,” and, as of the time
of purchase, the Company shall have an authorized capitalization as
set forth in the sections of the Pre-Pricing Prospectus and the
Prospectus entitled “Description of capital stock” (and
any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus) and issued and outstanding
capital stock as set forth in the sections of the Pre-Pricing
Prospectus and the Prospectus entitled “The offering”
(subject, in each case, to the issuance of shares of Common Stock
upon exercise of Warrants or upon the exercise of stock options and
warrants disclosed as outstanding in the Registration Statements
(excluding the exhibits thereto), the Pre-Pricing Prospectus and
the
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Prospectus; all
of the issued and outstanding shares of capital stock, including
the Common Stock, of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, have been
issued in compliance with all applicable securities laws and were
not issued in violation of any preemptive right, resale right,
right of first refusal or similar right; the Securities are duly
listed, and admitted and authorized for trading, subject to
official notice of issuance, on The NASDAQ Global Market (the
“ NASDAQ ”);
(e) the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, to execute and
deliver this Agreement and to issue, sell and deliver the
Securities as contemplated herein;
(f) the Company is duly qualified to
do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, (i) have a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and the
Subsidiary (as defined below) taken as a whole, (ii) prevent
or materially interfere with consummation of the transactions
contemplated hereby or (iii) result in the delisting of shares
of Common Stock from the NASDAQ (the occurrence of any such effect
or any such prevention or interference or any such result described
in the foregoing clauses (i), (ii) and (iii) being herein
referred to as a “ Material Adverse Effect
”);
(g) the Company has no subsidiaries
(as defined under the Act) other than La Jolla Limited a company
limited by shares and organized under the laws of England and Wales
(the “ Subsidiary ”); the Company owns all of
the issued and outstanding capital stock of the Subsidiary; other
than the capital stock of the Subsidiary, the Company does not own,
directly or indirectly, any shares of stock or any other equity
interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; complete
and correct copies of the charters and the bylaws of the Company
and the memorandum of association and articles of association of
the Subsidiary and all amendments thereto have been delivered or
otherwise made available to you (including via EDGAR), and no
changes therein will be made on or after the date hereof through
and including the time of purchase; the Subsidiary has been duly
incorporated and is validly existing as a company in good standing
under the laws of the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any; the Subsidiary
is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in
good standing would not,
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individually or
in the aggregate, have a Material Adverse Effect; all of the
outstanding shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws, were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right and
are owned by the Company subject to no security interest, other
encumbrance or adverse claims; no options, warrants or other rights
to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiary are outstanding; and the
Company has no “significant subsidiary,” as that term
is defined in Rule 1-02(w) of Regulation S-X under the
Act;
(h) the Shares have 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 non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and
similar rights; the Shares, when issued and delivered against
payment therefor as provided herein, will be free of any
restriction upon the voting or transfer thereof pursuant to the
Delaware General Corporation Law or the Company’s charter or
bylaws or any agreement or other instrument to which the Company is
a party;
(i) the Warrants have been duly
authorized by the Company and, when executed and delivered by the
Company will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and general principles of equity;
the Warrant Shares issuable upon exercise of the Warrants have been
duly authorized and validly reserved for issuance upon exercise of
the Warrants in a number sufficient to meet the current exercise
requirements; upon exercise of the Warrants in accordance with
their terms, the Warrant Shares issuable thereupon will be duly and
validly issued and fully paid and nonassessable, free of statutory
and contractual preemptive rights, resale rights, rights of first
refusal and similar rights and free of any voting or transfer
restrictions pursuant to the Company’s charter or bylaws or
any agreement or other instrument to which the Company is a party;
and the certificates for such Warrant Shares will be in due and
proper form;
(j) the terms of the Warrants and the
capital stock of the Company, including the Securities and the
Warrant Shares, conform in all material respects to the description
thereof, if any, contained or incorporated by reference in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any; and the
certificates for the Securities are in due and proper form;
(k) this Agreement has been duly
authorized, executed and delivered by the Company;
(l) neither the Company nor the
Subsidiary is in breach or violation of or in default under (nor
has any event occurred which, with notice, lapse of time or
both,
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would result in
any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (A) its charter or bylaws (or memorandum of association
or articles of association), or (B) any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound or affected, or (C) any federal,
state, local or foreign law, regulation or rule, or (D) any
rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NASDAQ), or
(E) any decree, judgment or order applicable to it or any of
its properties, except, in the case of clause (B) above, for
such breaches, violations or defaults that would not, individually
or in the aggregate, have a Material Adverse Effect;
(m) the execution, delivery and
performance of this Agreement, the issuance and sale of the
Securities, the issuance of the Warrant Shares upon due exercise of
the Warrants in accordance with their terms and the consummation of
the transactions contemplated hereby will not conflict with, result
in any breach or violation of or constitute a default under (nor
constitute any event which, with notice, lapse of time or both,
would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge
or encumbrance on any property or assets of the Company or any
Subsidiary pursuant to) (A) the charter or bylaws of the
Company or the memorandum of association or articles of association
of the Subsidiary, or (B) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or the Subsidiary is a party or by
which any of them or any of their respective properties may be
bound or affected, or (C) any federal, state, local or foreign
law, regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations
of the NASDAQ), or (E) any decree, judgment or order
applicable to the Company or the Subsidiary or any of their
respective properties, except, in the case of clause
(B) above, for such breaches, violations or defaults that
would not, individually or in the aggregate, have a Material
Adverse Effect;
(n) no approval, authorization,
consent or order of or filing with any federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the NASDAQ), or approval of the stockholders of the
Company, is required in connection with the issuance and sale of
the Securities, the issuance of the Warrant Shares upon due
exercise of the Warrants in accordance with their terms or the
consummation by the Company of the transactions contemplated
hereby, other than (i) registration of the Securities and the
Warrant Shares under the Act, which has been effected (or, with
respect to any registration statement to be filed hereunder
pursuant to Rule 462(b) under the Act, will be effected in
accordance
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herewith),
(ii) any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Securities are
being offered by the Underwriters or (iii) under the Conduct
Rules of the Financial Industry Regulatory Authority, Inc. (“
FINRA ”);
(o) except as described in the
Registration Statements (excluding the exhibits thereto), the
Pre-Pricing Prospectus and the Prospectus, (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 that have
not been waived, (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 of
or other equity interests in the Company that have not been waived
and (iii) no person has the right to act as an underwriter or
as a financial advisor to the Company in connection with the offer
and sale of the Securities; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any
shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company, or to include any such
shares or interests in the Registration Statements or the offering
contemplated thereby;
(p) each of the Company and the
Subsidiary have all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary
licenses, authorizations, consents and approvals from other
persons, in order to conduct their respective businesses, except
for such licenses, authorizations, consents, approvals and filings
the failure to so obtain or the failure to so file would not,
individually or in the aggregate, have a Material Adverse Effect;
neither the Company nor the Subsidiary is in violation of, or in
default under, or has received notice of any proceedings relating
to revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to
the Company or the Subsidiary, except where such violation,
default, revocation or modification would not, individually or in
the aggregate, have a Material Adverse Effect;
(q) except as described in the
Registration Statements, the Pre-Pricing Prospectus and the
Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or, to the Company’s knowledge,
threatened or contemplated to which the Company or the Subsidiary
or any of their respective directors or officers, in their
capacities as such, is or would be a party or of which any of their
respective properties is or would be subject at law or in equity,
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, or before
or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ),
except any such action, suit, claim, investigation or proceeding
which, if resolved adversely to the Company or the Subsidiary,
would not, individually or in the aggregate, have a Material
Adverse Effect;
(r) Ernst & Young LLP, whose
report on the consolidated financial statements of the Company and
the Subsidiary is included or incorporated by reference in
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the
Registration Statements, the Pre-Pricing Prospectus and the
Prospectus, are independent registered public accountants as
required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(s) the financial statements included
or incorporated by reference in the Registration Statements, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any, together with the related notes and
schedules, present fairly the consolidated financial position of
the Company and the Subsidiary as of the dates indicated and the
consolidated results of operations, cash flows and changes in
stockholders’ equity of the Company and the Subsidiary for
the periods specified and have been prepared in compliance with the
requirements of the Act and Exchange Act and in conformity with
U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved, except as otherwise
disclosed in the Registration Statements, the Pre-Pricing
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any; the other financial and statistical data
contained or incorporated by reference in the Registration
Statements, the Pre-Pricing Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses, if any, are accurately and
fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Registration Statements, the Pre-Pricing Prospectus or the
Prospectus that are not included or incorporated by reference as
required; the Company and the Subsidiary do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in the Registration
Statements (excluding the exhibits thereto), the Pre-Pricing
Prospectus and the Prospectus; and all disclosures contained or
incorporated by reference in the Registration Statements, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act,
to the extent applicable;
(t) except as disclosed in the
Registration Statements (excluding the exhibits thereto), the
Pre-Pricing Prospectus and the Prospectus, each stock option
granted under any stock option plan of the Company or the
Subsidiary (each, a “ Stock Plan ”) was granted
with a per share exercise price no less than the fair market value
per share of Common Stock on the grant date of such option, and no
such grant involved any “back-dating,”
“spring-loading” or similar practice with respect to
the effective date of such grant; except as would not, individually
or in the aggregate, have a Material Adverse Effect, each such
option (i) was granted in compliance with applicable law and
with the applicable Stock Plan(s), (ii) was duly approved by
the board of directors (or a duly authorized committee thereof) of
the Company or the Subsidiary, as applicable, and (iii) has
been properly accounted for in all material respects in the
Company’s financial statements in accordance with U.S.
generally accepted accounting principles and disclosed in the
Company’s filings with the Commission;
(u) subsequent to the respective
dates as of which information is given in the
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Registration
Statements, the Pre-Pricing Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses, if any, in each case excluding
any amendments or supplements to the foregoing made after the
execution of this Agreement, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management,
financial condition or results of operations of the Company and the
Subsidiary taken as a whole, (ii) any transaction which is
material to the Company and the Subsidiary taken as a whole,
(iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company or the Subsidiary, which is material to the Company and the
Subsidiary taken as a whole, (iv) any change in the capital
stock or outstanding indebtedness of the Company or the Subsidiary
or (v) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company or the
Subsidiary;
(v) the Company has obtained for the
benefit of the Underwriters the agreement (a “ Lock-Up
Agreement ”), in the form set forth as
Exhibit A hereto, of each of its directors and
“officers” (within the meaning of Rule 16a-1(f)
under the Exchange Act), provided that the Company shall not be
liable for the failure of any director or officer to comply with
such Lock-Up Agreement;
(w) neither the Company nor the
Subsidiary is, and at no time during which a prospectus is required
by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Securities will either of them be, and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, neither of them will be,
an “investment company” or an entity
“controlled” by an “investment company, as such
terms are defined in the Investment Company Act of 1940, as amended
(the “ Investment Company Act ”);
(x) except as described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, and except as
would not individually or in the aggregate have a Material Adverse
Effect, the Company and the Subsidiary have good and marketable
title to all property (real and personal) described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being owned
by any of them, free and clear of all liens, claims, security
interests or other encumbrances; all the property described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or a Subsidiary is held thereby under
valid, subsisting and enforceable leases, with such exceptions as
do not, individually or in the aggregate, materially interfere with
the use made, or proposed to be made, of such property by the
Company or the Subsidiary;
(y) to the Company’s knowledge,
the Company and the Subsidiary own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, trademarks (both registered and
unregistered), tradenames,
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service names,
copyrights, trade secrets and other proprietary information
described in the Registration Statements, the Pre-Pricing
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned or licensed by them or which
are necessary for the conduct of their respective businesses as
currently conducted or as proposed to be conducted (including the
commercialization of products or services described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as under
development), except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material
Adverse Effect (collectively, “ Intellectual Property
”); (i) to the Company’s knowledge, there are no
third parties who have or will be able to establish rights to any
Intellectual Property, except for, and to the extent of, the
ownership rights of the owners of the Intellectual Property which
the Registration Statements (excluding the exhibits thereto), the
Pre-Pricing Prospectus and the Prospectus disclose is licensed to
the Company; (ii) to the Company’s knowledge, there is
no infringement by third parties of any Intellectual Property;
(iii) except as described in the Registration Statements, the
Pre-Pricing Prospectus and the Prospectus, 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 Intellectual Property, and the Company is
unaware of any facts which could form a reasonable basis for any
such action, suit, proceeding or claim; (iv) except as
described in the Registration Statements, the Pre-Pricing
Prospectus and the Prospectus, there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity, enforceability or scope
of any Intellectual Property, and the Company is unaware of any
facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company or the Subsidiary infringes or
otherwise violates, or would, upon the commercialization of any
product or service described in the Registration Statements, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any, as under development, infringe or
violate, any patent, trademark, tradename, service name, copyright,
trade secret or other proprietary rights of others, and the Company
is unaware of any facts which could form a reasonable basis for any
such action, suit, proceeding or claim; (vi) the Company and
the Subsidiary have complied with the terms of each agreement
pursuant to which Intellectual Property has been licensed to the
Company or the Subsidiary, except where the failure to so comply
would not, individually or in the aggregate, have a Material
Adverse Effect, and all such agreements are in full force and
effect; (vii) to the Company’s knowledge, there is no
patent or patent application that contains claims that interfere
with the issued or pending claims of any of the Intellectual
Property or that challenges the validity, enforceability or scope
of any of the Intellectual Property; (viii) to the
Company’s knowledge, there is no prior art that may render
any patent application within the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office; and (ix) the product candidates described in the
Registration Statements, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as under
development by the Company or any Subsidiary fall within the scope
of the claims of one or more patents or patent applications owned
by, or exclusively licensed to, the Company or any
Subsidiary;
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(z) neither the Company nor the
Subsidiary is engaged in any unfair labor practice; except for
matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor
practice complaint pending or, to the Company’s knowledge,
threatened against the Company or the Subsidiary before the
National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no
strike, labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or the
Subsidiary and (C) no union representation dispute currently
existing concerning the employees of the Company or the Subsidiary,
(ii) to the Company’s knowledge, no union organizing
activities are currently taking place concerning the employees of
the Company or the Subsidiary and (iii) there has been no
violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder concerning the employees of
the Company or the Subsidiary;
(aa) the Company and the Subsidiary
and their respective properties, assets and operations are in
compliance with, and the Company and the Subsidiary hold all
permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so
comply or to hold such permits, authorizations or approvals would
not, individually or in the aggregate, have a Material Adverse
Effect; there are no past, present or, to the Company’s
knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans
that could reasonably be expected to give rise to any material
costs or liabilities to the Company or the Subsidiary under, or to
interfere with or prevent compliance by the Company or the
Subsidiary with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor the Subsidiary (i) is the subject of
any investigation, (ii) has received any notice or claim,
(iii) is a party to or affected by any pending or, to the
Company’s knowledge, threatened action, suit or proceeding,
(iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release
or threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, “
Environmental Law ” means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, autho
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