Exhibit 1.1
NEOPHARM, INC.
3,500,000 Shares
Common Stock
($0.0002145 par value per Share)
UNDERWRITING AGREEMENT
January 5, 2006
UNDERWRITING AGREEMENT
January 5, 2006
UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
NeoPharm, Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell to the one or more underwriters named in
Schedule A annexed hereto (referred to herein,
regardless of whether there is one or more, as the “
Underwriters ”), for whom you are acting as
representatives, an aggregate of 3,500,000 shares (the “
Firm Shares ”) of common stock, $0.0002145 par value
per share (the “ Common Stock ”), of the
Company. 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 525,000
shares of Common Stock (the “ Additional Shares
”). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the “
Shares .” The Shares 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 ”) a
registration statement on Form S-3 (File
No. 333-109340) under the Act (the “ registration
statement ”). Amendments to such registration
statement, if necessary or appropriate, have been similarly
prepared and filed with the Commission. Such registration
statement, as so amended, has been declared by the Commission to be
effective under the Act. The Company will next file with the
Commission pursuant to Rule 424(b) under the Act a final
prospectus supplement to the basic prospectus, describing the
Shares and the offering thereof, in such form as has been provided
to or discussed with, and approved, by the Underwriters.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, 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 Shares pursuant to
Rule 462(b) under the Act.
Except where the context otherwise
requires, “ Basic Prospectus ,” as used herein,
means the Prospectus, dated December 17, 2003, filed by the
Company with the Commission pursuant to Rule 424(b) under
the Act on January 7, 2004.
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Shares, 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 Shares.
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 Shares contemplated
hereby that is a “written communication” (as defined in
Rule 405 under the Act) (each such road show, a “
Road Show ”).
“ Disclosure Package
,” as used herein, means the Basic Prospectus, together with
any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
Any reference herein to the
registration statement, the Registration Statement, the Basic
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 Statement, the Basic 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 Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the “
Exchange Act ”) on or after the initial effective date
of the Registration Statement, or the date of the Basic 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 herein, “ 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 Firm Shares set forth opposite the name of such
Underwriter in Schedule A attached hereto, at a
purchase price of $9.69 per Share. The Company is advised by
you that the Underwriters intend (i) to make a public offering
of their
2
respective portions of the
Firm Shares as soon after the effectiveness of this Agreement as in
your judgment is advisable and (ii) initially to offer the
Firm Shares 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.
In addition, the Company hereby
grants to the several Underwriters the option to purchase, and upon
the basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same
purchase price per share to be paid by the Underwriters to the
Company for the Firm Shares. This option may be exercised by
UBS Securities LLC (“ UBS ”) on behalf of the
several Underwriters at any time and from time to time on or before
the thirtieth day following the date of the Prospectus Supplement,
by written notice to the Company. Such notice shall set forth
the aggregate number of Additional Shares as to which the option is
being exercised and the date and time when the Additional Shares
are to be delivered (such date and time being herein referred to as
the “ additional time of purchase ”);
provided , however , that the additional time of
purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on
which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been
exercised. The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same proportion to
the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares).
2.
Payment and
Delivery . Payment of the
purchase price for the Firm Shares shall be made to the Company by
Federal Funds wire transfer against delivery of the certificates
for the Firm Shares to you through the facilities of The Depository
Trust Company (“ DTC ”) for the respective
accounts of the Underwriters. Such payment and delivery shall
be made at 10:00 A.M., New York City time, on January 10,
2006 (unless another time shall be agreed to by you and the
Company. The time at which such payment and delivery are to
be made is hereinafter sometimes called “ the time of
purchase .” Electronic transfer of the Firm Shares
shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for
the Additional Shares shall be made at the additional time of
purchase in the same manner and at the same office as the payment
for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in
such names and in such denominations as you shall
specify.
Deliveries of the documents
described in Section 6 hereof with respect to the purchase of
the Shares shall be made at the offices of Dewey Ballantine LLP at
1301 Avenue of the Americas, New York, New York 10019, at
9:00 A.M., New York City time, on the date of the closing of
the purchase of the Firm Shares or the Additional Shares, as the
case may be.
3
3.
Representations and
Warranties of the Company . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a)
the Registration
Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the
offer and sale of Shares 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
Shares; no stop order of the Commission preventing or suspending
the use of the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, 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
Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of
purchase, each additional time of purchase, if any, 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 Shares, 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 Shares as
contemplated hereby have been satisfied; the Registration Statement
meets, and the offering and sale of the Shares as contemplated
hereby complies with, the requirements of Rule 415 under the
Act; the Registration Statement did not, as of the 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 Basic Prospectus
complied or will comply, at the time it was filed with the
Commission, complies as of the date hereof and, at the time of
purchase, each additional time of purchase, if any, 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 Shares, will comply, in all material respects, with the
requirements of the Act; at no time during the period that begins
at 4:00 P.M., New York City time, on January 4, 2006 and
ends at the time of purchase did or will the 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 the 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, each
additional time of purchase, if any, 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 Shares, in all
material respects, with the requirements of the Act (in the case of
the Prospectus, including,
4
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, the
latest additional time of purchase, if any, 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 Shares 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 with respect to any statement contained
in the Registration Statement, 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 Statement, the Prospectus or
such Permitted Free Writing Prospectus; each Incorporated Document,
at the time such document was filed with the Commission or at the
time such document became effective, as applicable, complied, in
all material respects, with the requirements of the Exchange Act
and did not 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 Shares 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 Shares, other than 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 accompanied or preceded by the Basic Prospectus or
the Prospectus, as the case may be, and that such Permitted Free
Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and 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 or
Rule 433 (without reliance on subsections (b), (c) and
(d) of Rule 164); the Basic Prospectus is 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,
including a price range where required by rule; 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
Shares, “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
5
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 Shares contemplated by the Registration Statement; 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 Shares contemplated hereby is
solely the property of the Company;
(d)
as of the date of
this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the financial statements contained
in the Company’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 2005 (the “10-Q”),
which financial statements are incorporated by reference in the
Registration Statement, the Basic Prospectus and the Prospectus,
and in the sections of the Registration Statement and the
Prospectus entitled “Capitalization” and
“Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free
Writing Prospectus); as of the time of purchase and any additional
time of purchase, as the case may be, the Company shall have an
authorized and outstanding capitalization as set forth in the 10-Q
and in the sections of the Registration Statement and the
Prospectus entitled “Capitalization” and
“Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free
Writing Prospectus) (subject, in each case, to the issuance of the
Shares, the issuance of shares of Common Stock upon exercise of
stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), the Basic
Prospectus and the Prospectus and the grant of options under
existing stock option plans described in the Registration Statement
(excluding the exhibits thereto), the Basic Prospectus and the
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
Shares are duly listed, and admitted and authorized for trading,
subject to official notice of issuance, on the Nasdaq National
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 Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein;
(f)
the Company is
duly qualified to do business as a foreign corporation and is in
good standing in the State of Illinois, and there is no other
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to so qualify would not have a material adverse
effect on the business, operations, prospects, properties,
condition (financial or otherwise) or results of operations of the
Company and the Subsidiary (as defined below) taken as a whole (a
“Material Adverse Effect”);
(g)
the Company has
no subsidiaries (as defined under the Act) other
6
than NeoPharm EU
Limited (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 or
long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or
other entity; complete and correct copies of the charter and the
bylaws of the Company and the Subsidiary and all amendments thereto
have been delivered to you; the Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus; 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, 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; and 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;
(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;
(i)
the capital stock
of the Company, including the Shares, conforms to the description
thereof, if any, contained in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus; and the certificates for the Shares are in due and
proper form, and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(j)
this Agreement
has been duly authorized, executed and delivered by the
Company;
(k)
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 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) (i) its charter or bylaws, or
(ii) 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 either of them or
any of their respective properties may be bound or affected other
than,
7
in the case of
clause (ii) for those breaches, violations or defaults that
would not, individually or in the aggregate, have a Material
Adverse Effect, and the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares 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 or 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) (x) the charter or bylaws of the Company or the
Subsidiary, (y) 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 either of them
or any of their respective properties may be bound or affected, or
(z) any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the
Company or the Subsidiary, other than, in the case of clause (y)
for those breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse
Effect;
(l)
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 the National
Association of Securities Dealers Automated Quotation National
Market System (“ NASDAQ ”), or approval of the
stockholders of the Company, is required in connection with the
issuance and sale of the Shares or the consummation by the Company
of the transactions contemplated hereby other than
(i) registration of the Shares under the Act, which has been
effected, (ii) filings with the Commission pursuant to
Rule 424(b) under the Act, (iii) filings with the
Commission on Form 8-K with respect to the Underwriting
Agreement, and (iv) any necessary qualification under
the securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters or under the
rules and regulations of the National Association of
Securities Dealers, Inc. (“ NASD ”)
(including any listing applications, and consents to be received
thereunder, and any notices required by the Nasdaq National Market
in the ordinary course of the offering of the Shares);
(m)
except as
described in the Registration Statement (excluding the exhibits
thereto), the Basic 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, (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 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 Shares, in the
case of each of the foregoing clauses (i), (ii) and (iii),
whether as a result of the filing or effectiveness of the
Registration Statement of the sale of the Shares as contemplated
thereby or otherwise; 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 Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale
8
of the Shares as
contemplated thereby or otherwise;
(n)
each of the
Company and the Subsidiary has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order
to conduct its business; except for such licenses, authorizations,
consents and approvals the failure of which to obtain 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 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;
(o)
all legal or
governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related
to, and the existence of, “variable interest entities”
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), contracts, licenses, agreements,
leases or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or
filed as required;
(p)
except as
described in the Registration Statement, the Basic Prospectus and
the Prospectus, there are no actions, suits, claims, investigations
or proceedings pending or threatened or, to the Company’s
knowledge after due inquiry, contemplated to which the Company or
the Subsidiary or any of their respective directors or officers 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, except any such
action, suit, claim, investigation or proceeding which would not
result in a judgment, decree or order having, individually or in
the aggregate, a Material Adverse Effect or preventing consummation
of the transactions contemplated hereby;
(q)
KPMG LLP, whose
report on the consolidated financial statements of the Company is
included in the Registration Statement, the Basic Prospectus and
the Prospectus, are independent public accountants as required by
the Act and by Rule 3600T of the Public Company Accounting
Oversight Board (the “ PCAOB ”);
(r)
the financial
statements included in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, 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;
9
all pro forma
financial statements or data included in the Registration
Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus comply with the applicable accounting
requirements of Regulation S-X of the Act including, without
limitation, Article 11 thereof and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have
been properly applied to the historical amounts in the compilation
of those statements and data; the other financial and statistical
data contained in the Registration Statement, the Basic Prospectus,
the Prospectus or any Permitted Free Writing Prospectus 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 in the Registration Statement, the
Basic Prospectus or the Prospectus that are not included as
required; neither the Company nor the Subsidiary has any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in the Registration
Statement, the Basic Prospectus and the Prospectus; and all
disclosures contained in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
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;
(s)
subsequent to the
respective dates as of which information is given in the
Registration Statement, the Basic 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, 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;
(t)
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
executive officers;
(u)
the Company is
not 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 Shares will it be, and, after giving effect to the
offering and sale of the Shares, it will not 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
”);
10
(v)
each of the
Company and the Subsidiary has good and marketable title to all
property (real and personal) described the Registration Statement,
the Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as being owned by it, free and clear of all liens,
claims, security interests or other encumbrances other than those
liens, claims, security interests or other encumbrances that would
not, individually or in the aggregate have a Material Adverse
Effect; all the property described in the Registration Statement,
the Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as being held under lease by the Company or the
Subsidiary is held thereby under valid, subsisting and enforceable
leases other than as would not, individually or in the aggregate,
have a Material Adverse Effect;
(w)
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,
service names, copyrights, trade secrets and other proprietary
information described in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
as being owned or licensed by it or which are necessary for the
conduct of its business, 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 ”); except as described in the
Registration Statement (excluding the exhibits thereto), the Basic
Prospectus or the Prospectus or as would not, individually or in
the aggregate, have a Material Adverse Effect, (i) there are
no third parties who have or, to the Company’s knowledge
after due inquiry, will be able to establish rights to any
Intellectual Property, except for the ownership rights of the
owners of the Intellectual Property which is licensed to the
Company; (ii) to the Company’s knowledge, there is no
infringement by third parties of any Intellectual Property;
(iii) 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) there is no pending, or to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the validity 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
commercialization of any of the products described in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, infringe or otherwise 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) 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; (vii) to the
Company’s knowledge, there is no prior art that may render
any patent application owned by the Company of the Intellectual
Property unpatentable that has not been disclosed to the U.S.
Patent and Trademark Office; and (viii) product candidates
described in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as under
development by the Company fall within the scope of the
11
claims of one or
more U.S. patents owned by or exclusively licensed to the
Company;
(x)
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 after due inquiry, 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 threatened,
(B) no strike, labor dispute, slowdown or
stoppage pending or, to the Company’s knowledge after
due inquiry, threatened against the Company or the Subsidiary and
(C) no union representation dispute currently existing
concerning the employees of the Company or the Subsidiary, and
(ii) to the Company’s knowledge (A) no union
organizing activities are currently taking place concerning the
employees of the Company or the Subsidiary and (B) 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 (“
ERISA ”) or the rules and regulations promulgated
thereunder concerning the employees of the Company or the
Subsidiary;
(y)
the Company and
the Subsidiary and their respective properties, assets and
operations are in compliance with, and each of the Company and the
Subsidiary holds 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 in any material respect with,
Environmental Laws; except as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company or
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 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, authorization or other
binding requirement, or common law, relating to health, safety or
the protection, cleanup or restoration of the environment or
natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and “ Hazardous Materials ”
means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is
regulated by or may give rise to liability under any Environmental
Law);
(z)
all tax returns
required to be filed by the Company or the
12
Subsidiary have
been filed, and all taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have been paid, other than
those being contested in good faith and for which adequate reserves
have been provided;
(aa)
each of the
Company and the Subsidiary maintains insurance covering its
properties, operations, personnel and businesses as the Company
deems adequate; such insurance insures against such losses and
risks to an extent which is adequate in accordance with customary
industry practice to protect the Company and the Subsidiary and
their respective businesses; all such insurance is fully in force
on the date hereof and will be fully in force at the time of
purchase and any additional time of purchase;
(bb)
neither the
Company nor the Subsidiary has sustained since the date of the last
audited financial statements included in the Registration Statement
(excluding the exhibits thereto), the Basic Prospectus and the
Prospectus any 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;
(cc)
except as
described in the Registration Statement (excluding the exhibits
thereto), the Basic Prospectus and the Prospectus, neither the
Company nor the Subsidiary has sent or received any communication
regarding termination of, or intent not to renew, any of the
contracts or agreements referred to or described in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus or filed as an exhibit to the
Registration Statement or any Incorporated Document, and no such
termination or non-renewal has been threatened by the Company or
the Subsidiary or, to the Company’s knowledge after due
inquiry, any other party to any such contract or agreement except
for any such agreements the non-renewal or termination of which
would not, individually or in the aggregate, have a Material
Adverse Effect;
(dd)
each of the
Company and the Subsidiary maintains a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific 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;
(ee)
the Company has
established and maintains and evaluates “disclosure controls
and procedures” (as such term is defined in Rule 13a-15
and 15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in
Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls
13
and procedures
are designed to ensure that material information relating to the
Company, including its consolidated subsidiary, is made known to
the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for
which they were established; the Company’s auditors and the
Audit Committee of the Board of Directors of the Company have been
advised of: (i) any significant deficiencies in the design or
operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material,
that involves management or other employees who have a role in the
Company’s internal controls; any material weaknesses in
internal controls have been identified for the Company’s
auditors; and 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; and 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 principal executive officers (or their
equivalents) and principal financial officers (or their
equivalents) of the Company have made all certifications required
by the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley
Act ”) and any related rules and regulations
promulgated by the Commission, and the statements contained in any
such certification are complete and correct; and the Company, the
Subsidiary and the Company’s officers and directors (in their
capacities as such) are each in compliance in all material respects
with all applicable effective provisions of the Sarbanes-Oxley Act
and the rules and regulations of the Commission and the NASDAQ
promulgated thereunder;
(ff)
the Company has
provided you true, correct and complete copies of all documentation
pertaining to any extension of credit in the form of a personal
loan made, directly or indirectly, by the Company or any Subsidiary
to any director or executive officer of the Company, or to any
family member or affiliate of any director or executive officer of
the Company; and on or after July 30, 2002, the Company has
not, directly or indirectly, including through any Subsidiary:
(i) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any
director or executive officer of the Company, or to or for any
family member or affiliate of any director or executive officer of
the Company; or (ii) made any material modification, including
any renewal thereof, to any term of any personal loan to any
director or executive officer of the Company, or any family member
or affiliate of any director or executive officer, which loan was
outstanding on July 30, 2002;
(gg)
all statistical
or market-related data included in the Registration Statement, the
Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to
the extent required;
(hh)
neither the
Company nor the Subsidiary nor, to the Company’s
14
knowledge after
due inquiry, any employee or agent of the Company or the Subsidiary
has made any payment of funds of the Company or the Subsidiary or
received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the
Registration Statement, the Basic Prospectus or the
Prospectus;
(ii)
except pursuant
to this Agreement, the Company has not incurred any liability for
any finder’s or broker’s fee or agent’s
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated
hereby or by the Prospectus;
(jj)
the clinical,
pre-clinical and other studies and tests conducted by or on behalf
of or sponsored by the Company or in which the Company or the
Subsidiary or products or product candidates have participated that
are described in the Registration Statement, the Basic Prospectus,
the Prospectus or any Permitted Free Writing Prospectus or the
results of which are referred to in the Registration Statement, the
Basic Prospectus, the Prospectus or any Free Writing Prospectus
were and, if still pending, are being conducted in accordance with
standard medical and scientific research procedures; the
descriptions in the Registration Statement, the Basic Prospectus,
the Prospectus or any Permitted Free Writing Prospectus of the
results of such studies and tests are accurate and complete in all
material respects and fairly present the data derived from such
studies and tests, and the Company has no knowledge of any other
studies or tests the results of which are inconsistent with or
otherwise call into question the results described or referred to
in the Registration Statement, the Basic Prospectus, the Prospectus
or any Permitted Free Writing Prospectus; except as described in
the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus, the Company and the Subsidiary
has each operated and currently is in compliance in all material
respects with all applicable rules, regulations and policies of the
U.S. Food and Drug Administration and comparable drug regulatory
agencies outside of the United States (collectively, the “
Regulatory Authorities ”); and except as described in
the Registration Statement, the Basic Prospectus and the
Prospectus, neither the Company nor the Subsidiary has received any
notices or other correspondence from the Regulatory Authorities or
any other governmental agency requiring the termination or
suspension of any clinical or pre-clinical studies or tests that
are described, or the results of which are referred to, in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus;
(kk)
neither the
Company nor the Subsidiary nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or
indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares; and
(ll)
to the
Company’s knowledge after due inquiry, there are no
affiliations or associations between any member of the NASD and any
of the Company’s officers, directors or 5% or greater
securityholders, except as described in the Registration Statement,
the Basic Prospectus and the Prospectus.
15
In addition, any certificate signed
by any officer of the Company or the Subsidiary and delivered to
the Underwriters or counsel for the Underwriters in connection with
the offering of the Shares shall be deemed to be a representation
and warranty by the Company as to matters covered thereby, to each
Underwriter.
4.
Certain
Covenants of the Company . The Company hereby
agrees:
(a)
to furnish such
information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or
blue sky laws of such states or other jurisdictions as you may
designate and to maintain such qualifications in effect so long as
you may request for the distribution of the Shares; provided
, however , that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of
process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the Shares); and
to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Shares for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(b)
to make available
to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from time to time
to furnish to the Underwriters, as many copies of the Prospectus
(or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters
may request for the purposes contemplated by the Act; in case any
Underwriter is required to deliver (whether physically or through
compliance with Rule 172 under the Act or any similar rule),
in connection with the sale of the Shares, a prospectus after the
nine-month period referred to in Section 10(a)(3) of the
Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of
Regulation S-K under the Act, the Company will prepare, at its
expense, promptly upon request such amendment or amendments to the
Registration Statement and the Prospectus as may be necessary to
permit compliance with the requirements of
Section 10(a)(3) of the Act or Item 512(a) of
Regulation S-K under the Act, as the case may be;
(c)
if, at the time
this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement, or a
Registration Statement under Rule 462(b) under the Act,
to be filed with the Commission and become effective before the
Shares may be sold, the Company will endeavor to cause such
post-effective amendment or such Registration Statement to be filed
and become effective as soon as possible, and the Company will
advise you promptly and, if requested by you, will confirm such
advice in writing, (i) when such post-effective amendment or
such Registration Statement has become effective, and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act
(which the Company agrees to file in a timely manner under such
Rules);
(d)
to advise you
promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the
Registration
16
Statement, the
Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop
order, suspending the effectiveness of the Registration Statement
and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement, the Basic Prospectus or the
Prospectus, and to provide you and Underwriters’ counsel
copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such
amendment or supplement to which you shall object in
writing;
(e)
subject to
Section 4(c) hereof, to file promptly all reports and
documents and any preliminary or definitive proxy or information
statement required to be filed by the Company with the Commission
in order to comply with the Exchange Act for so long as 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 Shares; and to
provide you, for your review and comment, with a copy of such
reports and statements and other documents to be filed by the
Company pursuant to Section 13, 14 or 15(d) of the
Exchange Act during such period a reasonable amount of time prior
to any proposed filing, and to file no such report, statement or
document to which you shall have objected in writing; and to
promptly notify you of such filing;
(f)
if necessary or
appropriate, to file a registration statement pursuant to
Rule 462(b) under the Act and pay the applicable fees in
accordance with the Act;
(g)
to advise the
Underwriters promptly of the happening of any event within the time
during which a prospectus relating to the Shares 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 Shares, which event could require the making of any
change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not
misleading, and, during such time, subject to
Section 4(c) hereof, to prepare and furnish, at the
Company’s expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be necessary to
reflect any such change;
(h)
to make generally
available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under
the Act) as soon as is reasonably practicable after the termination
of such twelve-month period but in any case not later than
March 1, 2007;
(i)
to furnish to its
stockholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of
income, shareholders’ equity and cash flow of the Company and
the Subsidiary for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized
17
independent
certified public accountants duly registered with the
PCAOB);
(j)
to furnish to you
five copies of the Registration Statement, as initially filed with
the Commission, and of all amendments thereto (including all
exhibits thereto and documents incorporated by reference) and
sufficient copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other
Underwriters;
(k)
to furnish to you
promptly and, upon request, to each of the other Underwriters for a
period of five years from the date of this Agreement
(i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders or
shall from time to time publish or publicly disseminate,
(ii) copies of all annual, quarterly, transition and current
reports filed with the Commission on Forms 10-K, 10-Q or 8-K, or
such other similar forms as may be designated by the Commission,
(iii) copies of documents or reports filed with any national
securities exchange on which any class of securities of the Company
is listed and (iv) such other information as you may
reasonably request regarding the Company;
(l)
to furnish to you
as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than
two business days prior thereto, a copy of the latest available
unaudited interim and monthly financial statements, if any, of the
Company and the Subsidiary which have been read by the
Company’s independent certified public accountants, as stated
in their letter to be furnished pursuant to
Section 6(e) hereof;
(m)
to apply the net
proceeds from the sale of the Shares in the manner set forth under
the caption “Use of proceeds” in the
Prospectus;
(n)
to pay all costs,
expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof
to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of
the Shares including any stock or transfer taxes and stamp or
similar duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iii) the producing, word
processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof) and the
reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for
investment under state or foreign law as aforesaid (including the
reasonable legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on
any securities exchange or qualification of the Shares for
quotation on the NASDAQ and any registration thereof under the
Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD, including the legal fees and
filing fees and
18
other
disbursements of counsel to the Underwriters, (vii) the fees
and disbursements of any transfer agent or registrar for the
Shares, (viii) the costs and expenses of the Company relating
to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Shares to prospective
investors and the Underwriters’ sales forces, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show and (ix) the performance of the
Company’s other obligations hereunder;
(o)
to comply with
Rule 433(g) under the Act;
(p)
not to sell,
offer to sell, contract or agree to sell, hypothecate, pledge,
grant any option to purchase or otherwise dispose of or agree to
dispose of, directly or indirectly, any Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any
shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock or any other securities of the
Company that are substantially similar to Common Stock for a period
of 90 days after the date hereof (the “ Lock-Up Period
”), without the prior written consent of UBS, except that if
(i) during the period that begins on the date that is 15
calendar days plus three business days before the last day of the
90-day restricted period and ends on the last day of the 90-day
restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs,
or (ii) prior to the expiration of the 90-day restricted
period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 90-day
period, the restrictions imposed by this section shall
continue to apply until the expiration of the date that is 15
calendar days plus three business days after the date on which the
issuance of the earnings release or the material news or material
event occurs, provided however, this prov
|
