Nastech Pharmaceutical
Company Inc.
Common Stock
($0.006 par value per Share)
UBS Securities
LLC
299 Park Avenue
New York, New York 10171-0026
Nastech
Pharmaceutical Company Inc., a Delaware corporation (the “
Company ”), proposes to issue and sell to UBS
Securities LLC (the “ Underwriter ,” “
you ” or “ UBS ”), an aggregate of
3,250,000 shares (the “ Firm Shares ”) of common
stock, $0.006 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
Underwriter the option to purchase from the Company up to an
additional 487,500 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. 333-111324) under the Act (the “ first
registration statement ”). In addition, the Company has
prepared and filed with the Commission, in accordance with the
provisions of the Act, another registration statement on Form S-3
(File No. 333-138088) (the “ second registration
statement ” and, collectively with the first registration
statement, the “ registration statements ”). The
registration statements incorporate by reference documents which
the Company has filed, or will file, in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the “
Exchange Act ”). Pursuant to Rule 429 under the
Act, the second registration statement contains a combined
prospectus to be used in connection with both registration
statements. Each registration statement has become effective under
the Act, and, pursuant to Rule 429 under the Act, the second
registration statement, upon its effectiveness under the Act, acted
as a post-effective amendment to the first registration
statement.
Except
where the context otherwise requires, “ Registration
Statement ,” as used herein, means the registration
statements, as amended at the time of such registration
statements’ effectiveness for purposes of Section 11 of
the Act, as such section applies to the Underwriter (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
statements 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, “ 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 you 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.
Except
where the context otherwise requires, “ Basic
Prospectus ,” as used herein, means the basic prospectus
included in the Registration Statement at the time the Registration
Statement became effective under the Act.
“
Permitted Free Writing Prospectuses ,” as used herein,
means the documents listed on Schedule A attached
hereto. The Underwriter has not offered or sold and will not offer
or sell, without the Company’s consent, any Shares by means
of any “free writing prospectus” (as defined in
Rule 405 under the Act) that is required to be filed by the
Underwriter with the Commission pursuant to Rule 433 under the
Act, other than a Permitted Free Writing Prospectus.
“
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 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 in this Agreement, “ business day ” shall
mean a day on which the New York Stock Exchange (the “
NYSE ”) is open for trading. The terms
“herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used
herein, is not exclusive.
The
Company and the Underwriter 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 Underwriter, and
the Underwriter agrees to purchase from the Company, 3,250,000 Firm
Shares,
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at a purchase
price of $12.65 per Share. The Company is advised by the
Underwriter that the Underwriter intends (i) to make a public
offering of the Firm Shares as soon after the effectiveness of this
Agreement as in the Underwriter’s judgment is advisable and
(ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. The Underwriter may from time to time
increase or decrease the public offering price after the initial
public offering to such extent as the Underwriter may
determine.
In
addition, the Company hereby grants to the Underwriter the option
(the “ Over-Allotment Option ”) to purchase, and
upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Underwriter shall
have the right to purchase, from the Company, 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 Underwriter to the
Company for the Firm Shares. The Over-Allotment Option may be
exercised by UBS 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
Over-Allotment Option is being exercised and the date and time when
the Additional Shares are to be delivered (any such date and time
being herein referred to as an “ additional time of
purchase ”); provided , however , that no
additional time of purchase shall be earlier than the “time
of purchase” (as defined below) nor earlier than the second
business day after the date on which the Over-Allotment Option
shall have been exercised nor later than the tenth business day
after the date on which the Over-Allotment Option shall have been
exercised.
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 the Underwriter through the facilities of The Depository Trust
Company (“ DTC ”) for the account(s) of the
Underwriter. Such payment and delivery shall be made at
10:00 A.M., New York City time, on January 23, 2007
(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 and time of day 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,
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.
Representations and Warranties of the Company . The Company
represents and warrants to and agrees with the Underwriter
that:
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(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 (including,
without limitation, Rule 415(a)(5) 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, as of its date and the date it was or will be filed
with the Commission, complies as of the date hereof (if filed with
the Commission on or prior to the date hereof) and, at the time of
purchase, 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
on the earlier of the date of the Basic Prospectus and the date the
Basic Prospectus was filed with the Commission 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,
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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 in this
Section 3(b) 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 the Underwriter and furnished in writing by
the Underwriter 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, or will be filed, with the Commission or at the
time such document became or becomes effective, as applicable,
complied or will comply, in all material respects, with the
requirements of the Exchange Act and did not or will not, as
applicable, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(c) prior to the
execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any 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, in each case other
than the Basic Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rules 164 and 433 under the Act; assuming
that such Permitted Free Writing Prospectus is so sent or given
after 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 the Underwriter, of any Permitted Free
Writing Prospectus will satisfy the provisions of Rule 164 and
Rule 433 (without reliance on subsections (b), (c) and
(d) of Rule 164); the conditions set forth in one or more
of subclauses (i) through (iv), inclusive, of
Rule 433(b)(1) under the Act are satisfied, and the
registration statement relating to the offering of the Shares
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the Underwriter
is 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
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prospectuses” (as defined in Rule 405
under the Act) pursuant to Rules 164 and 433 under the Act;
the Company is not an “ineligible issuer” (as defined
in Rule 405 under the Act) as of the eligibility determination
date for purposes of Rules 164 and 433 under the Act with
respect to the offering of the Shares contemplated by the
Registration Statement, without taking into account any
determination by the Commission pursuant to Rule 405 under the
Act that it is not necessary under the circumstances that the
Company be considered an “ineligible issuer”; the
parties hereto agree and understand that the content of any and all
“road shows” (as defined in Rule 433 under the
Act) related to the offering of the Shares contemplated hereby is
solely the property of the Company;
(d) in accordance
with Rule 2710(b)(7)(C)(i) of the National Association of
Securities Dealers, Inc. (the “ NASD ”), the
Shares have been registered with the Commission on Form S-3 under
the Act pursuant to the standards for such Form S-3 in effect prior
to October 21, 1992;
(e) as of the date
of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the section of the Prospectus
entitled “Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus or Incorporated Document), and, 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 section of the Prospectus entitled
“Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus) (subject, in each case, to 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 Global Market
(the “ NASDAQ ”);
(f) 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 and
the Permitted Free Writing Prospectuses, if any, to execute and
deliver this Agreement and to issue, sell and deliver the Shares as
contemplated herein;
(g) the Company is
duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, either
(i) have
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a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and the
Subsidiaries (as defined below) taken as a whole, (ii) prevent
or materially interfere with consummation of the transactions
contemplated hereby or (iii) result in the delisting of shares
of Common Stock from the NASDAQ (the occurrence of any such effect
or any such prevention or interference or any such result described
in the foregoing clauses (i), (ii) and (iii) being herein
referred to as a “ Material Adverse Effect
”);
(h) the Company
has no subsidiaries (as defined under the Act) other than Atossa
HealthCare Inc., Nastech Holdings I, LLC and Nastech Holdings II,
LLC (the “ Subsidiaries ”); the Company owns all
of the issued and outstanding capital stock of each Subsidiary;
other than the capital stock of the Subsidiaries, the Company does
not own, directly or indirectly, any shares of stock or any other
equity interests or long-term debt securities of any corporation,
firm, partnership, joint venture, association or other entity;
complete and correct copies of the charters and the bylaws of the
Company and each Subsidiary and all amendments thereto have been
delivered to you, and no changes therein will be made on or after
the date hereof through and including the time of purchase or, if
later, any additional time of purchase; each Subsidiary has been
duly incorporated or organized, as the case may be, and is validly
existing as a corporation or limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement, the Basic Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any;
each Subsidiary is duly qualified to do business as a foreign
corporation or limited liability company, as the case may be, 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 or other equity interests, as the case may be, of each
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 any Subsidiary are outstanding;
each of Nastech Holdings I, LLC and Nastech Holdings II, LLC does
not own or possess any property or assets, or have any obligations
or liabilities, or possess any rights (by contract, franchise,
permit or otherwise) or engage in any operations that are,
individually or in the aggregate, material to the business,
properties, financial condition, results of operations or prospects
of the Company and the Subsidiaries taken as a whole;
(i) the Shares
have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights
of first refusal and similar rights; the Shares, when issued
and
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delivered
against payment therefor as provided herein, will be free of any
restriction upon the voting or transfer thereof pursuant to the
Delaware General Corporation Law or the Company’s charter or
bylaws or any agreement or other instrument to which the Company is
a party;
(j) the capital
stock of the Company, including the Shares, conforms in all
material respects to each description thereof, if any, contained or
incorporated by reference in the Registration Statement, the Basic
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any; and the certificates for the Shares are in
due and proper form;
(k) this Agreement
has been duly authorized, executed and delivered by the
Company;
(l) neither the
Company nor any 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) (A) its charter or bylaws (or, in the
case of a limited liability company, other equivalent documents),
or (B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound or
affected, or (C) any federal, state, local or foreign law,
regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations
of the NASDAQ), or (E) any decree, judgment or order applicable to
it or any of its properties, except, in the case of clauses
(B) and (E), for any breaches or violations that would not,
individually or in the aggregate, have a Material Adverse
Effect;
(m) the execution,
delivery and performance of this Agreement, the issuance and sale
of the 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, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (or result in the creation or
imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (A) the
charter or bylaws (or other equivalent documents) of the Company or
any Subsidiary, or (B) any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or
any license, lease, contract or other agreement or instrument to
which the Company or any Subsidiary is a party or by which any of
them or any of their respective properties may be bound or
affected, or (C) any federal, state, local or foreign law,
regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations
of the NASDAQ), or (E) any decree, judgment or order
applicable to the Company or any Subsidiary or any of their
respective properties;
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(n) no approval,
authorization, consent or order of or filing with any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority or agency, or of or with any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the
stockholders of the Company, is required in connection with the
issuance and sale of the 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 (or, with respect to any registration statement to be
filed hereunder pursuant to Rule 462(b) under the Act, will be
effected in accordance herewith), (ii) any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriter or (iii) under the Conduct Rules of the
NASD;
(o) 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; 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;
(p) each of the
Company and Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any applicable law, regulation or rule, and
has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct their respective
businesses, except where the failure to make such filings or to
obtain such licenses, authorizations, consents or approvals would
not, individually or in the aggregate, have a Material Adverse
Effect; neither the Company nor any Subsidiary is in violation of,
or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any Subsidiary, except where such
violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect;
(q) there are no
actions, suits, claims, investigations or proceedings pending or,
to the Company’s knowledge, threatened or contemplated to
which the Company or any 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
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or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NASDAQ), except any
such action, suit, claim, investigation or proceeding which, if
resolved adversely to the Company or any Subsidiary, would not,
individually or in the aggregate, have a Material Adverse
Effect;
(r) KPMG LLP,
whose report on the consolidated financial statements of the
Company is included or incorporated by reference in the
Registration Statement, the Basic Prospectus and the Prospectus,
are independent registered public accountants as required by the
Act and by the rules of the Public Company Accounting Oversight
Board;
(s) the financial
statements included or incorporated by reference in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any, together with the
related notes and schedules, present fairly the consolidated
financial position of the Company as of the dates indicated and the
consolidated results of operations, cash flows and changes in
stockholders’ equity of the Company 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; all pro forma financial statements or data
included or incorporated by reference in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, comply with the requirements of
the Act 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 or
incorporated by reference in the Registration Statement, the Basic
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are accurately and fairly presented and
prepared on a basis consistent with the financial statements and
books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, the Basic
Prospectus or the Prospectus that are not included or incorporated
by reference as required; neither the Company nor any Subsidiary
has any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not described in the
Registration Statement (excluding the exhibits thereto), the Basic
Prospectus and the Prospectus; and all disclosures contained or
incorporated by reference in the Registration Statement, the Basic
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act,
to the extent applicable;
(t) subsequent to
the respective dates as of which information is given in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free
- 10 -
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 Subsidiaries taken as
a whole, (ii) any transaction which is material to the Company
and the Subsidiaries taken as a whole, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, which is
material to the Company and the Subsidiaries taken as a whole,
(iv) any change in the capital stock or outstanding
indebtedness of the Company or any Subsidiary or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary;
(u) the Company
has obtained for the benefit of the Underwriter the agreement (a
“ Lock-Up Agreement ”), in the form set forth as
Exhibit A hereto, of each of its directors and
“officers” (within the meaning of Rule 16a-1(f)
under the Exchange Act);
(v) neither the
Company nor any Subsidiary is, and at no time during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares will either of
them be, and, after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof, neither of them
will be, an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”);
(w) the Company
and the Subsidiaries each have good and marketable title to all
property (real and personal) described the Registration Statement,
the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned by any of them, free and clear
of all liens, claims, security interests or other encumbrances,
except where the failure to have such good and marketable title
free and clear of all such liens, claims, security interests or
other encumbrances 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 and
the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or any Subsidiary is held thereby under
valid, subsisting and enforceable leases, except where the failure
to hold such property under valid, subsisting and enforceable
leases would not, individually or in the aggregate, have a Material
Adverse Effect;
(x) the Company
and the Subsidiaries each 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 and the Permitted
Free Writing Prospectuses, if any, as being owned or licensed by
them or which are necessary for the conduct of their respective
businesses as currently conducted or as proposed to be
- 11 -
conducted
(including the commercialization of products or services described
in the Registration Statement, the Basic Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as under
development) (such inventions, patent applications, patents,
trademarks, tradenames, service names, copyrights, trade secrets
and other proprietary information, collectively, “
Intellectual Property ”), except where the failure to
own, license or have such Intellectual Property would not,
individually or in the aggregate, have a Material Adverse Effect;
except 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, will be able to
establish rights to any Intellectual Property, except for, and to
the extent of, the ownership rights of the owners of the
Intellectual Property which the Registration Statement (excluding
the exhibits thereto), the Basic Prospectus and the Prospectus
disclose is licensed to the Company; (ii) 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, enforceability or scope of any Intellectual Property,
and the Company is unaware of any facts which could form a
reasonable basis for any such action, suit, proceeding or claim;
(v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the
Company or any Subsidiary infringes or otherwise violates, or
would, upon the commercialization of any product or service
described in the Registration Statement, the Basic Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as
under development, infringe or violate, any patent, trademark,
tradename, service name, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any
facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (vi) the Company and the
Subsidiaries each have complied with the terms of each agreement
pursuant to which Intellectual Property has been licensed to the
Company or any Subsidiary, and all such agreements are in full
force and effect; (vii) there is no patent or patent
application that contains claims that interfere with the issued or
pending claims of any of the Intellectual Property or that
challenges the validity, enforceability or scope of any of the
Intellectual Property; (viii) there is no prior art that may render
any patent application within the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office; and (ix) the product candidates described in
the Registration Statement, the Basic Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as under
development by the Company or any Subsidiary fall within the scope
of the claims of one or more patents owned by, or exclusively
licensed to, the Company or any Subsidiary;
(y) neither the
Company nor any Subsidiary is engaged in any unfair labor practice;
except for matters which would not, individually or in the
aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the
Company’s knowledge, threatened against the Company or any
Subsidiary before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the
Company’s knowledge,
- 12 -
threatened,
(B) no strike, labor dispute, slowdown or stoppage pending or,
to the Company’s knowledge, threatened against the Company or
any Subsidiary and (C) no union representation dispute
currently existing concerning the employees of the Company or any
Subsidiary, (ii) to the Company’s knowledge, no union
organizing activities are currently taking place concerning the
employees of the Company or any Subsidiary and (iii) there has
been no violation of any federal, state, local or foreign law
relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 (“
ERISA ”) or the rules and regulations promulgated
thereunder concerning the employees of the Company or any
Subsidiary;
(z) the Company
and each Subsidiary and their respective properties, assets and
operations are in compliance with, and each of the Company and the
Subsidiaries 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; except as 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 any Subsidiary under, or to interfere
with or prevent compliance by the Company or any Subsidiary with,
Environmental Laws; except as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company nor
any Subsidiary (i) is the subject of any investigation,
(ii) has received any notice or claim, (iii) is a party
to or affected by any pending or, to the Company’s knowledge,
threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “ Environmental Law
” means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, 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);
(aa) in the
ordinary course of their business, the Company and the Subsidiaries
conduct periodic reviews of the effect of the Environmental Laws on
their respective businesses, operations and properties, in the
course of which they identify and evaluate associated costs and
liabilities (including, without
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