Exhibit 1.1
Shares
SKINMEDICA, INC.
Common Stock
UNDERWRITING
AGREEMENT
, 2005
SG COWEN & CO., LLC
PIPER JAFFRAY & CO.
THOMAS WEISEL PARTNERS LLC
C.E. UNTERBERG, TOWBIN, LLC
As Representatives of
the several Underwriters
c/o SG Cowen & Co., LLC
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. I NTRODUCTORY . SkinMedica, Inc., a Delaware corporation (the
“Company”), proposes to sell, pursuant to the terms of
this Agreement, to the several underwriters named in Schedule A
hereto (the “Underwriters,” or, each, an
“Underwriter”), an aggregate of
shares of Common Stock, $0.001 par value (the “Common
Stock”) of the Company. The aggregate of
shares so proposed to be sold is hereinafter referred to as the
“Firm Stock”. The Company also proposes to sell to the
Underwriters, upon the terms and conditions set forth in Section 3
hereof, up to an additional
shares of Common Stock (the “Optional Stock”). The Firm
Stock and the Optional Stock are hereinafter collectively referred
to as the “Stock”. SG Cowen & Co., LLC (“SG
Cowen”) and Piper Jaffray & Co., Thomas Weisel Partners
LLC and C.E. Unterberg, Towbin, LLC are acting as representatives
of the several Underwriters and in such capacity are hereinafter
referred to as the “Representatives.” As part of the
offering contemplated by this Agreement, SG Cowen (the
“Designated Underwriter”) has agreed to reserve out of
the Firm Stock purchased by it under this Agreement, up to
shares, for sale to the Company’s customers and business
partners and friends of the Company’s officers, directors and
employees (collectively, “Participants”), as set forth
in the Prospectus (as defined herein) under the heading
“Underwriting” (the “Directed Share
Program”). The Firm Stock to be sold by the Designated
Underwriter pursuant to the Directed Share Program (the
“Directed Shares”) will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering
price. Any Directed Shares not subscribed for by the end of the
business day on which this Agreement is executed will be offered to
the public by the Underwriters as set forth in the
Prospectus.
2. R EPRESENTATIONS AND W ARRANTIES OF THE C OMPANY . The Company represents and warrants to, and
agrees with, the several Underwriters that:
(a) A registration statement on Form
S-1 (File No. 333-
) (the “Initial Registration Statement”) in respect of
the Stock has been filed with the Securities and Exchange
Commission (the “Commission”); the Initial Registration
Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto,
to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a
“Rule 462(b) Registration Statement”), filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the
“Securities Act”) and the rules and regulations (the
“Rules and Regulations”) of the Commission thereunder,
which became effective upon filing, no other document with respect
to the Initial Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the Rules and Regulations, is
hereinafter called a “Preliminary Prospectus”); the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits
thereto and including
the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act and deemed by virtue of Rule 430A
under the Securities Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statements”; and
such final prospectus, in the form first filed pursuant to Rule
424(b) under the Securities Act, is hereinafter called the
“Prospectus”. No document has been or will be prepared
or distributed in reliance on Rule 434 under the Securities Act. No
order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission.
(b) The Initial Registration
Statement conforms (and the Rule 462(b) Registration Statement, if
any, the Prospectus and any amendments or supplements to either of
the Registration Statements or the Prospectus, when they become
effective or are filed with the Commission, as the case may be,
will conform) in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration
Statements and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or supplement
thereto) 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 not misleading; provided ,
however, that the foregoing representations and warranties shall
not apply to information contained in or omitted from the
Registration Statements or the Prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with,
written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information the parties hereto agree is
limited to the Underwriters’ Information (as defined in
Section 16).
(c) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, is
duly qualified to do business and is in good standing 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 business in which it is
engaged, except where the failure to so qualify 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 or prospects of the Company (a
“Material Adverse Effect”). The Company does not have
any subsidiaries (as defined in Section 14).
(d) This Agreement has been duly
authorized, executed and delivered by the Company.
(e) The Stock to be issued and sold
by the Company to the Underwriters hereunder 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
and will conform to the description thereof contained in the
Prospectus.
(f) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
issued 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
Prospectus. 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 other than those accurately described in the Prospectus.
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 Prospectus
accurately and fairly present the information required to be shown
with respect to such plans, arrangements, options and
rights.
(g) The execution, delivery and
performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby 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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the
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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 or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or
assets.
(h) Except for the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and applicable state securities laws,
the National Association of Securities Dealers, Inc. and the Nasdaq
National Market in connection with the purchase and distribution of
the Stock by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(i) Ernst & Young LLP, who have
expressed their opinions on the audited financial statements
together with the related notes included in the Registration
Statements and the Prospectus, is an independent registered public
accounting firm as required by the Securities Act and the Rules and
Regulations.
(j) The financial statements,
together with the related notes and supporting schedules, included
in the Prospectus and in each Registration Statement fairly present
the financial position and the results of operations and changes in
financial position of the Company at the respective dates or for
the respective periods therein specified. Such statements and
related notes and supporting schedules have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis except as may be set forth in the Prospectus;
provided, however, that statements that are unaudited are subject
to year-end adjustments and do not contain footnotes required under
generally accepted accounting principles. The financial statements,
together with the related notes and supporting schedules, included
in the Prospectus comply in all material respects with the
Securities Act and the Rules and Regulations thereunder. No other
financial statements or supporting schedules or exhibits are
required by the Securities Act or the Rules and Regulations
thereunder to be included in the Prospectus.
(k) The Company has not sustained,
since the date of the latest audited financial statements included
in the Prospectus, any material loss or interference 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 Prospectus; and, since such date, except for
the exercise of stock options in the ordinary course of business
and for the exercise of warrants or the conversion of preferred
stock, there has not been any change in the capital stock or
long-term debt of the Company or any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the business, general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company, otherwise than as set forth or contemplated in the
Prospectus.
(l) Except as set forth in the
Prospectus, 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
Registration Statement or the Prospectus and is not described
therein, or which, singularly or in the aggregate, if determined
adversely to the Company, would have a Material Adverse Effect or
would prevent or adversely affect the ability of the Company to
perform its obligations under this Agreement; and to the best of
the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others.
(m) The Company is not (i) in
violation of its charter or by-laws, (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
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement 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 law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject except any violations or defaults
under clauses (ii) or (iii) which, singularly or in the aggregate,
would not have a Material Adverse Effect.
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(n) The Company possesses all
licenses, certificates, authorizations and permits issued by, and
has made all declarations and filings with, the appropriate state,
federal or foreign regulatory agencies or bodies which are
necessary or desirable for the ownership of its properties or the
conduct of its business as presently conducted as described in the
Prospectus except where any failures to possess or make the same,
singularly or in the aggregate, would not have a Material Adverse
Effect, and the Company has not received notification of any
revocation or modification of any such license, authorization or
permit and has no reason to believe that any such license,
certificate, authorization or permit will not be
renewed.
(o) The Company is not, and after
giving effect to the offering of the Stock and the application of
the proceeds thereof as described in the Prospectus will not
become, an “investment company” within the meaning of
the Investment Company Act of 1940, as amended and the rules and
regulations of the Commission thereunder.
(p) Neither the Company nor any of
its officers, directors or, to the Company’s knowledge, other
affiliates has taken or will take, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of
any security of the Company, or which caused or resulted in, or
which would in the future reasonably be expected to cause or result
in, stabilization or manipulation of the price of any security of
the Company.
(q) The Company owns or possesses
the right to use all patents, trademarks, trademark registrations,
service marks, service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights described in the
Prospectus as being owned or possessed by the Company for the
conduct of its business (collectively, the “Company
Intellectual Property”), and except for the patent
re-examination proceeding described in the Prospectus, the Company
is not aware of any claim to the contrary or any challenge by any
other person to the rights of the Company with respect to the
foregoing. To the best of the Company’s knowledge, none of
the patents owned or licensed by the Company are unenforceable or
invalid, and none of the patent applications owned or licensed by
the Company would be unenforceable or invalid if issued as patents.
The Company is not obligated to pay a royalty, grant a license or
provide other material consideration to any third party in
connection with the Company Intellectual Property other than as
described in the Prospectus. To the best of the Company’s
knowledge, the Company’s business as now conducted and as
proposed to be conducted does not and will not infringe or conflict
with any patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other intellectual property
or franchise right of any person. No currently pending claim has
been made against the Company alleging the infringement by the
Company of any patent, trademark, service mark, trade name,
copyright, trade secret, license in or other intellectual property
right or franchise right of any person.
(r) The studies, tests and clinical
trials conducted by or on behalf of the Company that are described
in the Prospectus were and, if still pending, are being conducted
in material compliance with all applicable local, state and federal
laws, rules, regulations and guidance, including, but not limited
to, the Federal Food, Drug and Cosmetic Act and implementing
regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 312. The
descriptions of the results of such studies, tests and trials
contained in the Prospectus are accurate and complete in all
material respects. The Company is not aware of any studies, tests
or trials the results of which reasonably call into question the
clinical trial results described or referred to in the Prospectus
when viewed in the context in which such results are described and
the clinical state of development; and 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 clinical trials conducted by or on behalf of the
Company.
(s) Except as described in the
Prospectus, the Company has good and marketable title in fee simple
to, or have valid rights to lease or otherwise use, all items of
real or personal property which are material to the business of the
Company, in each case free and clear of all liens, encumbrances,
claims and defects that would result in a Material Adverse
Effect.
(t) No labor disturbance by the
employees of the Company exists or, to the best of the
Company’s knowledge, is imminent which would be expected to
have a Material Adverse Effect. The Company is not aware that any
key employee or significant group of employees of the Company plans
to terminate employment with the Company.
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(u) No “prohibited
transaction” (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
(“ERISA”), or Section 4975 of the Internal Revenue Code
of 1986, as amended from time to time (the “Code”)) or
“accumulated funding deficiency” (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan which could have
a Material Adverse Effect; each employee benefit plan is in
compliance in all material respects with applicable law, including
ERISA and the Code; the Company has not incurred and does not
expect to incur liability under Title IV of ERISA with respect to
the termination of, or withdrawal from, any “pension
plan”; and each “pension plan” (as defined in
ERISA) for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could cause the loss
of such qualification.
(v) There has been no storage,
generation, transportation, handling, treatment, disposal,
discharge, emission, or other release of any kind of toxic or other
wastes or other hazardous substances by, due to, or caused by the
Company (or, to the best of the Company’s knowledge, any
other entity for whose acts or omissions the Company is or may be
liable) upon any of the property now or previously owned or leased
by the Company, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree
or permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree
or permit, give rise to any liability, except for any violation or
liability which would not have, singularly or in the aggregate with
all such violations and liabilities, a Material Adverse Effect;
there has been no disposal, discharge, emission or other release of
any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous
substances with respect to which the Company has knowledge, except
for any such disposal, discharge, emission, or other release of any
kind which would not have, singularly or in the aggregate with all
such discharges and other releases, a Material Adverse
Effect.
(w) The Company (i) has filed all
necessary federal, state and foreign income and franchise tax
returns, except where the failure to do so would not have a
Material Adverse Effect, (ii) has paid all federal state, local and
foreign taxes due and payable for which it is liable, except to the
extent such taxes are being contested in good faith, and (iii) does
not have any tax deficiency or claims outstanding or assessed or,
to the best of the Company’s knowledge, proposed against it
which could reasonably be expected to have a Material Adverse
Effect.
(x) The Company carries, or is
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar
businesses in similar industries.
(y) The Company 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 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.
(z) The minute books of the Company
and its predecessor, SkinMedica, Inc., a California corporation
(“SkinMedica California”) have been made available to
the Underwriters and counsel for the Underwriters, and such books
(i) contain a complete summary of all meetings and actions of the
board of directors (including each board committee) and
stockholders of each of the Company and SkinMedica California since
the time of its respective incorporation through the date of the
latest meeting and action, and (ii) accurately in all material
respects reflect all transactions referred to in such
minutes.
(aa) There is no franchise, lease,
contract, agreement or document required by the Securities Act or
by the Rules and Regulations to be described in the Prospectus or
to be filed as an exhibit to the Registration Statements which is
not described or filed therein as required; and all descriptions of
any such franchises,
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leases, contracts, agreements or
documents contained in the Registration Statements are accurate and
complete descriptions of such documents in all material respects.
No such franchise, lease, contract or agreement has been suspended
or terminated for convenience or default by the Company or any of
the other parties thereto, and the Company has not received notice
nor does it have any other knowledge of any such pending or
threatened suspension or termination, except for such pending or
threatened suspensions or terminations that would not reasonably be
expected to, singularly or in the aggregate, have a Material
Adverse Effect.
(bb) 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 to be described in
the Prospectus and which is not so described.
(cc) No person or entity has the
right to require registration of shares of Common Stock or other
securities of the Company because of the filing or effectiveness of
the Registration Statements or otherwise, except for persons and
entities who have expressly waived such right.
(dd) The Company does not own any
“margin securities” as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve
System (the “Federal Reserve Board”), and none of the
proceeds of the sale of the Stock will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin
security or for any other purpose which would cause any of the
Stock to be considered a “purpose credit” within the
meanings of Regulation T, U or X of the Federal Reserve
Board.
(ee) Other than this Agreement, the
Company is not a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the
Company or the Underwriters for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Stock.
(ff) No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Prospectus has
been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(gg) The Stock has been approved for
quotation subject to notice of issuance on the NASDAQ Stock
Market’s National Market (the
“Nasdaq”).
(hh) The Company has taken all
necessary actions to ensure that, upon and at all times after the
effectiveness of the Registration Statement, it will be in
compliance with all applicable provisions of the Sarbanes-Oxley Act
of 2002 and all rules and regulations promulgated thereunder or
implementing the provisions thereof (the “Sarbanes-Oxley
Act”) that are then in effect and is actively taking steps to
ensure that it will be in compliance with other applicable
provisions of the Sarbanes-Oxley Act not currently in effect upon
and at all times after the effectiveness of such
provisions.
(ii) The Company has taken all
necessary actions to ensure that, upon and at all times after the
Nasdaq shall have approved the Stock for inclusion, it will be in
compliance with all applicable corporate governance requirements
set forth in the Nasdaq Marketplace Rules that are then in effect
and is actively taking steps to ensure that it will be in
compliance with other applicable corporate governance requirements
set forth in the Nasdaq Marketplace Rules not currently in effect
upon and all times after the effectiveness of such
requirements.
(jj) The Company has not made, and
to the best of the Company’s knowledge, no employee or agent
of the Company has made, any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office
in violation of any law or of the character required to be
disclosed in the Prospectus.
(kk) There are no transactions,
arrangements or other relationships between and/or among the
Company, any of its affiliates (as such term is defined in Rule 405
of the Securities Act) and any unconsolidated entity, including,
but not limited to, any structure finance, special purpose or
limited purpose entity that
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could reasonably be expected to
materially affect the Company’s liquidity or the availability
of or requirements for its capital resources required to be
described in the Prospectus which have not been described as
required.
(ll) There are no outstanding loans,
advances (except normal advances for business expense in the
ordinary course of business) or guarantees of indebtedness by the
Company to or for the benefit of any of the officers or directors
of the Company.
(mm) The Registration Statements,
the Prospectus and the Preliminary Prospectus comply, and any
further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which
they are distributed in connection with the Directed Share Program.
No authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities laws or regulations of any foreign
jurisdiction in which the Directed Shares are offered outside the
United States.
(nn) The Company has not offered, or
caused the Underwriters to offer, any Firm Stock to any person
pursuant to the Directed Share Program with the specific intent to
unlawfully influence (i) a customer or business partner of the
Company to alter the customer’s or business partner’s
level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
3. P URCHASE , S ALE AND D ELIVERY OF O FFERED S ECURITIES . On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company that number of shares of Firm
Stock (rounded up or down, as determined by SG Cowen in its
discretion, in order to avoid fractions) obtained by multiplying
shares of Firm Stock by a fraction the numerator of which is the
number of shares of Firm Stock set forth opposite the name of such
Underwriter in Schedule A hereto and the denominator of which is
the total number of shares of Firm Stock.
The purchase price per share to be
paid by the Underwriters to the Company for the Stock will be $
per share (the “Purchase Price”).
The Company will deliver the Firm
Stock to the Representatives for the respective accounts of the
several Underwriters (in the form of definitive certificates,
issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company
given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the First Closing Date (as defined below)
against payment of the aggregate Purchase Price therefor in federal
(same day) funds by wire transfer to an account at a bank
acceptable to SG Cowen, payable to the order of the Company, all at
the offices of Latham & Watkins LLP, 12636 High Bluff Drive,
Suite 300, San Diego, California 92130. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each
Underwriter hereunder. The time and date of the delivery and
closing shall be at 10:00 A.M., New York time, on
, 2005, in accordance with Rule 15c6-1 of the Exchange Act. The
time and date of such payment and delivery are herein referred to
as the “First Closing Date”. The First Closing Date and
the location of delivery of, and the form of payment for, the Firm
Stock may be varied by agreement between the Company and SG
Cowen.
The Company shall make the
certificates for the Firm Stock available to the Representatives
for examination on behalf of the Underwriters in New York, New York
at least twenty-four hours prior to the First Closing
Date.
For the purpose of covering any
over-allotments in connection with the distribution and sale of the
Firm Stock as contemplated by the Prospectus, the Underwriters may
purchase all or less than all of the Optional Stock. The price per
share to be paid for the Optional Stock shall be the Purchase
Price. The Company agrees to sell to the Underwriters the number of
shares of Optional Stock specified in the written notice by SG
Cowen described below and the Underwriters agree, severally and not
jointly, to purchase such shares of Optional Stock. Such shares of
Optional Stock shall be purchased from the Company for the account
of each Underwriter in the same proportion as
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the number of shares of Firm Stock set forth
opposite such Underwriter’s name bears to the total number of
shares of Firm Stock (subject to adjustment by SG Cowen to
eliminate fractions). The option granted hereby may be exercised as
to all or any part of the Optional Stock at any time, and from time
to time, not more than thirty (30) days subsequent to the date of
this Agreement. No Optional Stock shall be sold and delivered
unless the Firm Stock previously has been, or simultaneously is,
sold and delivered. The right to purchase the Optional Stock or any
portion thereof may be surrendered and terminated at any time upon
notice by SG Cowen to the Company.
The option granted hereby may be
exercised by written notice being given to the Company by SG Cowen
setting forth the number of shares of the Optional Stock to be
purchased by the Underwriters and the date and time for delivery of
and payment for the Optional Stock. Each date and time for delivery
of and payment for the Optional Stock (which may be the First
Closing Date, but not earlier) is herein called the “Option
Closing Date” and shall in no event be earlier than two (2)
business days nor later than five (5) business days after written
notice is given. (The Option Closing Date and the First Closing
Date are herein called the “Closing Dates”.)
The Company will deliver the
Optional Stock to the Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company
given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the Option Closing Date against payment of
the aggregate Purchase Price therefor in federal (same day) funds
by wire transfer to an account at a bank acceptable to SG Cowen
payable to the order of the Company all at the offices of Latham
& Watkins LLP, 12636 High Bluff Drive, Suite 300, San Diego,
California 92130. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. The
Company shall make the certificates for the Optional Stock
available to the Representatives for examination on behalf of the
Underwriters in New York, New York not later than 10:00 A.M., New
York Time, on the business day preceding the Option Closing Date.
The Option Closing Date and the location of delivery of, and the
form of payment for, the Optional Stock may be varied by agreement
between the Company and SG Cowen.
The several Underwriters propose to
offer the Stock for sale upon the terms and conditions set forth in
the Prospectus.
(4) F URTHER A GREEMENTS OF THE C OMPANY . The Company agrees with the several
Underwriters that:
(a) The Company will prepare the
Rule 462(b) Registration Statement, if necessary, in a form
approved by the Representatives and file such Rule 462(b)
Registration Statement with the Commission on the date hereof;
prepare the Prospectus in a form approved by the Representatives
and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the second business day following the
execution and delivery of this Agreement; make no further amendment
or any supplement to the Registration Statements or to the
Prospectus to which the Representatives shall reasonably object by
notice to the Company after a reasonable period (but in no event
longer than 48 hours) to review; advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to either Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the
Representatives with copies thereof; advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus,
of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statements or the Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, use promptly
its best efforts to obtain its withdrawal.
(b) If at any time prior to the
expiration of nine months after the effective date of the Initial
Registration Statement when a prospectus relating to the Stock is
required to be delivered any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly noti
