<PAGE>
6,500,000 SHARES
OXiGENE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
December 14, 2005
SG COWEN & CO., LLC
LAZARD CAPITAL MARKETS LLC
As Representatives of the
several Underwriters
c/o SG Cowen & Co., LLC
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. INTRODUCTORY. OXiGENE,
Inc., a Delaware corporation (the "Company"),
proposes to sell, pursuant to the terms of
this Underwriting Agreement
("Agreement"), to the several underwriters
named in Schedule A hereto (the
"Underwriters," or, each, an
"Underwriter"), an aggregate of 6,500,000 shares of
common stock, par value $.01 per share (the
"Common Stock"), of the Company. The
aggregate of 6,500,000 shares so proposed
to be sold is hereinafter referred to
as the "Firm Stock". The Company also
proposes to sell to the Underwriters, upon
the terms and conditions set forth in
Section 3 hereof, up to an additional
975,000 shares of Common Stock (the
"Optional Stock"). The Firm Stock and the
Optional Stock are hereinafter collectively
referred to as the "Stock". SG Cowen
& Co., LLC ("SG Cowen") and Lazard
Capital Markets LLC are acting as
representatives of the several Underwriters
and in such capacity are hereinafter
referred to collectively as the
"Representatives".
2. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several
Underwriters that:
(a)
The Company
meets the requirements for use of Form S-3 in connection
with the
sale of the Stock and has filed with the Securities and
Exchange
Commission
(the "Commission") a registration statement on Form S-3 (No.
333-128528), including a prospectus relating to the Stock, for
the
registration of such securities under the Securities Act of 1933,
as
amended
(the "Securities Act"), and the rules and regulations (the
"Rules
and
Regulations") of the Commission thereunder; a prospectus
supplement
reflecting
the terms of the Stock, the terms of the offering thereof and
the other
matters set forth therein has been prepared or will be prepared
and will
be filed pursuant to Rule 424(b) under the Securities Act (such
prospectus
supplement, in the form first filed after the date hereof
pursuant
to Rule 424(b), is herein referred to as the "Prospectus
Supplement"); such registration statement, as amended at the date
hereof,
including
all documents incorporated or deemed to be incorporated by
reference
therein and the exhibits thereto, in the form in which it was
declared
effective by the Commission under the Securities Act is herein
referred
to as the "Initial Registration Statement" and the base
prospectus
dated October 6, 2005, included therein and relating to all
offerings
of securities under the Initial Registration Statement, as
supplemented by the Prospectus Supplement, is herein referred to as
the
"Prospectus," except that if such base prospectus is amended or
supplemented on or prior to the date on which the Prospectus
Supplement is
first
filed pursuant to Rule 424(b), then the term "Prospectus" shall
refer to
the base prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including
the
documents
filed by the Company with the Commission pursuant to the
Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act"), that
are
incorporated by reference therein; the Initial Registration
Statement and
any
post-effective amendment thereto, each in the form heretofore
delivered
to you, and, excluding exhibits thereto but including all
documents
incorporated by reference in the prospectus contained therein,
in the
form delivered to you for each of the other Underwriters, has
been
declared
effective by the Commission in such form; other than the
Preliminary Prospectus Supplement (defined below) the
Prospectus
Supplement
and a registration statement, if any, increasing the size of
the
offering (a "Rule 462(b) Registration Statement"), filed pursuant
to
Rule
462(b) under the Securities Act and the Rules and Regulations,
which
became
effective
<PAGE>
2
upon
filing, no other document with respect to the Initial
Registration
Statement
or document incorporated by reference therein has heretofore
been filed
with the Commission; and no stop order suspending the
effectiveness of the
Initial Registration Statement, any post-effective
amendment
thereto or the Rule 462(b) Registration Statement, if any, has
been
issued and no proceeding for that purpose has been initiated or,
to
the
Company's knowledge, threatened by the Commission (any
preliminary
prospectus
included in the Initial Registration Statement or filed with
the
Commission pursuant to Rule 424(a) of the Rules and Regulations
and
the
preliminary prospectus supplement dated December 1, 2005 filed
with
the
Commission pursuant to Rule 424(b) of the Rules and Regulations
(the
"Preliminary Prospectus Supplement"), is hereinafter called a
"Preliminary
Prospectus"); the various parts of the Initial Registration
Statement and
the Rule
462(b) Registration Statement, if any, including all exhibits
thereto
and including (i) the information contained in the Prospectus
and
(ii) the
documents incorporated by reference in the Prospectus, are
hereinafter collectively called the "Registration Statements"; and
any
reference
herein to any Preliminary Prospectus or the Prospectus shall be
deemed to
refer to and include the documents incorporated by reference
therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of
the date
of such Preliminary Prospectus or Prospectus, as the case may
be;
any
reference to any amendment or supplement to any Preliminary
Prospectus
or the
Prospectus shall be deemed to refer to and include any
documents
filed
after the date of such Preliminary Prospectus or Prospectus, as
the
case may
be, under the Exchange Act and incorporated by reference in
such
Preliminary Prospectus or Prospectus, as the case may be; and
any
reference
to any amendment to the Registration Statements shall be deemed
to refer
to and include any annual report of the Company filed pursuant
to
Section
13(a) or 15(d) of the Exchange Act after the effective date of
the
Initial
Registration Statement that is incorporated by reference in the
Registration Statements. No document has been or will be prepared
or
distributed in reliance on Rule 434 under the Securities Act. No
order
preventing
or suspending the use of any Preliminary Prospectus has been
issued by
the Commission.
(b)
The Initial
Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus, the Preliminary
Prospectus
Supplement, the Prospectus Supplement and any amendments or
supplements
thereto
when they become effective or are filed with the Commission, as
the case
may be, will conform) in all material respects to the
requirements of the Securities Act and the Rules and Regulations
and do
not and
will not, as of the applicable effective date (as to the
Registration Statements and any amendments thereto) and as of
the
respective
applicable filing dates and the Time of Sale (as to the
Prospectus, the Preliminary Prospectus Supplement, the
Prospectus
Supplement
and any amendment or supplement thereto) contain any untrue
statement
of a material fact or omit to state any material fact required
to be
stated therein or necessary to make the statements therein, in
the
case of
the Prospectus, in light of the circumstances under which they
were made,
not misleading; provided, however, that the foregoing
representations and warranties shall not apply to information
contained in
or omitted
from the Registration Statements or the Prospectus or any such
amendment
or supplement thereto in reliance upon, and in conformity with,
written
information furnished to the Company through the
Representatives
by or on
behalf of any Underwriter specifically for inclusion therein,
which
information the parties hereto agree is limited to the
Underwriters'
Information (as defined in Section 17). For purposes of this
Agreement,
"Time of
Sale" means 9:00 a.m., New York City time, on December 15,
2005.
(c)
The documents
incorporated by reference in the Prospectus or deemed
to be part
of the Registration Statements, when they became effective or
were filed
with the Commission, as the case may be, conformed in all
material
respects to the requirements of the Securities Act or the
Exchange
Act, as applicable, and the rules and regulations of the
Commission
thereunder, and none of such documents contained any untrue
statement of a
material fact or omitted to state any material fact
required
to be stated therein or necessary to make the statements
therein,
in the
case of the Prospectus, in light of the circumstances under
which
they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or deemed to be part of
the
Registration Statement, when such documents become effective or are
filed
with
Commission, as the case may be, will conform in all material
respects
to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and
will not
contain any untrue statement of a material fact or omit to
state
any
material fact required to be stated therein or necessary to make
the
statements
therein not misleading.
<PAGE>
3
(d)
The Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, is
duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease
of
property
or the conduct of its business requires such qualification, and
has all
power and authority necessary to own or hold its properties and
to
conduct
the business in which it is engaged, except where the failure
to
so qualify
or have such power or authority would not have, singularly or
in the
aggregate, a material adverse effect on the condition (financial
or
otherwise), results of operations, business or prospects of the
Company (a
"Material
Adverse Effect").
(e)
This Agreement
has been duly authorized, executed and delivered by
the
Company.
(f)
The Company does
not have any subsidiaries nor, except as disclosed
in the
Prospectus and except for the Company's ownership of
approximately
9.7% of
the issued and outstanding shares of the common stock of
Optigenex,
Inc., does the Company own or hold any equity interests in any
other
entity equal to 1% or more of the outstanding equity interests
of
any such
entity.
(g)
The execution,
delivery and performance of this Agreement by the
Company
and the consummation of the transactions contemplated hereby
will
not
conflict with or result in a breach or violation of any of the
terms
or
provisions of, or constitute a default under, any indenture,
mortgage,
deed of
trust, loan agreement or other agreement or instrument to which
the
Company is a party or by which the Company is bound or to which any
of
the
property or assets of the Company is subject, nor will such
actions
result in
any violation of the provisions of the charter or by-laws of
the
Company or
any statute or any rule or regulation or any judgment, order or
decree of
any court or governmental agency or body, specifically naming
the
Company, and having jurisdiction over the Company or any of its
properties
or assets.
(h)
The Stock to be
issued and sold by the Company to the Underwriters
hereunder
has been duly and validly authorized and, when issued and
delivered
against payment therefor as provided herein will be duly and
validly
issued, fully paid and non-assessable, and will conform to the
description thereof contained in the Prospectus and the
Underwriters will
acquire
good and valid title to the Stock, free and clear of all liens,
encumbrances, equities, preemptive rights, subscription rights,
other
rights to
purchase, voting or transfer restrictions and other claims.
(i)
The Company has
the authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company
have been
(and with respect to the Stock will be, as of each date of
issuance
of such Stock) duly and validly authorized and issued, are
fully
paid and
non-assessable, have been issued in compliance with federal and
state
securities laws, and conform to the description thereof contained
in
the
Prospectus. None of the outstanding shares of Common Stock was
issued
in violation of any
preemptive rights, rights of first refusal or other
similar
rights to subscribe for or purchase securities of the Company.
There are
no authorized or outstanding options, warrants, preemptive
rights,
rights of first refusal or other rights to purchase, or equity
or
debt
securities convertible into or exchangeable or exercisable for,
any
capital
stock of the Company other than those accurately described in
the
Prospectus. The description of the Company's stock option, stock
bonus and
other
stock plans or arrangements, and the options or other rights
granted
thereunder, as described in the Prospectus accurately and fairly
present
the
information required to be shown with respect to such plans,
arrangements, options and rights.
(j)
The Company has
delivered, or will as promptly as practicable
deliver,
to the Representatives complete conformed copies of the
Registration Statements and of each consent and certificate of
experts
filed as a
part thereof, and conformed copies of the Registration
Statements
(without exhibits), the Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at
such
places as
the Representatives reasonably request. Neither the Company nor
any of its
directors and officers has distributed and none of them will
distribute, prior to the completion of the distribution of Stock,
any
offering
material in connection with the offering and sale of the Stock
other than
the Prospectus, the Prospectus Supplement, the Registration
Statements, copies of the documents incorporated by reference
therein and
any other
materials permitted by the Securities Act.
<PAGE>
4
(k)
Except for the
registration of the Stock under the Securities Act
and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable
state
securities or "blue sky" laws, the National Association of
Securities
Dealers, Inc. ("NASD"), and the NASDAQ National Market System
("NASDAQ")
in connection with the purchase and distribution of the Stock
by the
Underwriters, no consent, approval, authorization or order of,
or
filing or
registration with, any such court or governmental agency or
body
is
required for the execution, delivery and performance of this
Agreement
by the
Company and the consummation of the transactions contemplated
hereby.
(l)
Ernst &
Young LLP, who have expressed their opinions on the audited
financial
statements and related schedules incorporated by reference in
the
Registration Statements and the Prospectus are, and during the
periods
covered by
their reports, were, registered independent public accountants
with
respect to the Company as required by the Securities Act and
the
Rules and
Regulations. All audit and non-audit services, other than de
minimus
services, provided by Ernst & Young LLP to the Company since
July
30, 2002,
have been pre-approved by the audit committee of the Company's
board of
directors in accordance with Section 10A of the Exchange Act.
(m)
The financial
statements, together with the related notes,
incorporated by reference in the Prospectus and in the
Registration
Statements
fairly present the financial position and the results of
operations
and changes in financial position of the Company at the
respective
dates or for the respective periods therein specified. Such
statements
and related notes have been prepared in accordance with
generally
accepted accounting principles in the United States ("GAAP")
applied on
a consistent basis except as may be set forth in the
Prospectus. The financial statements, together with the related
notes and
schedules,
included or incorporated by reference in the Prospectus comply
in all
material respects with the Securities Act and the Rules and
Regulations thereunder. No other financial statements or
supporting
schedules
or exhibits are required by the Securities Act or the Rules and
Regulations thereunder to be included in the Prospectus or the
Registration Statement.
(n)
The Company has
not sustained, since the date of the latest audited
financial
statements included or incorporated by reference in the
Prospectus, any material loss or interference with its business
from fire,
explosion,
flood or other calamity, whether or not covered by insurance,
or from
any labor dispute or court or governmental action, order or
decree,
otherwise than as set forth or contemplated in the Prospectus;
and, since
such date, (i) there has not been any change in the capital
stock or
long-term debt of the Company or any material adverse change,
or
any
development involving a prospective material adverse change, in
or
affecting
the business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company, in
each case
otherwise
than as set forth or contemplated in the Prospectus and (ii),
except as
disclosed in the Registration Statements, the Prospectus and
the
Prospectus
Supplement, the Company has not (A) issued any securities or
incurred
any liability or obligation, direct or contingent, for borrowed
money,
except such liabilities or obligations incurred in the ordinary
course of
business, (B) entered into any transaction not in the ordinary
course of
business or (C) declared or paid any dividend or made any
distribution on any shares of its capital stock or redeemed,
purchased or
otherwise
acquired or agreed to redeem, purchase or otherwise acquire any
shares of
its capital stock.
(o)
Except as set
forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company is a party or
of
which any
property or assets of the Company are the subject which is
required
to be described in the Registration Statements or the
Prospectus
and is not
described therein, or which, singularly or in the aggregate, if
determined
adversely to the Company could reasonably be expected to have a
Material
Adverse Effect or would prevent or adversely affect the ability
of the
Company to perform its obligations under this Agreement; and to
the
best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(p)
The Company is
not (i) in violation of its charter or by-laws, (ii)
in default
in any respect, and no event has occurred which, with notice or
lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in
any
indenture, mortgage, deed of trust, loan agreement or other
agreement
or
instrument to which it is a party or by which it is bound or to
which
any of its
property or assets is subject or (iii) in violation in any
respect of
any statute, law, ordinance, governmental rule or regulation or
any
judgment, order or decree of any court, regulatory body,
<PAGE>
5
administrative agency, governmental body, arbitrator or other
authority
having
jurisdiction over the Company or its property or assets
(including,
without
limitation, those administered by the Food and Drug
Administration
(the
"FDA") or by any foreign, federal, state or local governmental
or
regulatory
authority performing functions similar to those performed by
the FDA),
except, with respect to clauses (ii) and (iii), any violations
or
defaults which, singularly or in the aggregate, would not have
a
Material
Adverse Effect.
(q)
The Company
possesses all licenses, certificates, authorizations and
permits issued by, and has
made all declarations and filings with, the
appropriate state, federal or foreign regulatory agencies or bodies
which
are
necessary or desirable for the ownership of its properties or
the
conduct of
its business as described in the Prospectus except where any
failures
to possess or make the same, singularly or in the aggregate,
would not
have a Material Adverse Effect, and the Company has not
received
notification of any revocation or modification of any such
license,
certificate, authorization or permit and has no reason to believe
that any
such
license, certificate, authorization or permit will not be
renewed.
(r)
The Company is
not, and after giving effect to the offering of the
Stock and
the application of the proceeds thereof as described in the
Prospectus
will not become, an "investment company" within the meaning of
the
Investment Company Act of 1940, as amended and the rules and
regulations of the Commission thereunder.
(s)
Neither the
Company nor any of its officers, directors or, to the
Company's
knowledge, its affiliates has taken or will take, directly or
indirectly, any action designed or intended to stabilize or
manipulate the
price of
any security of the Company, or which caused or resulted in, or
which
might in the future reasonably be expected to cause or result
in,
stabilization or manipulation of the price of any security of the
Company.
(t)
Except as
described in the Prospectus, the Company has not sold or
issued any
shares of Common Stock during the six-month period preceding
the date
of the Prospectus Supplement, including any sales pursuant to
Rule 144A
under, or Regulations D or S under, the Securities Act, other
than
shares issued pursuant to employee benefit plans, qualified
stock
options
plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(u)
To the Company's
best knowledge, the Company owns or possesses
adequate
rights to use all patents, patent applications, patent rights,
licenses,
inventions, copyrights, know-how (including trade secrets and
other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, trademark
registrations,
service
marks, service mark registrations, trade names, mask work
rights
and other
intellectual property necessary to carry on the business now
operated
by it or proposed to be operated by it as described in the
Prospectus
with respect to Combretastatin product candidates currently the
subject of
clinical trials, as well as the TRIS salt and disodium salt
formulations of CA4P (the "Business") (collectively,
"Intellectual
Property"), except where the lack of such ownership or rights to
use would
not have a
Material Adverse Effect. Except as disclosed in the Prospectus,
there is
no litigation or other proceeding pending or, to the Company's
knowledge,
threatened and no claims are presently being asserted by any
third
party challenging or questioning the ownership, validity, or
enforceability of the Company's right to use or own any
Intellectual
Property
or asserting that the use of any Intellectual Property by the
Company or
the operation of the Business infringes upon or misappropriates
the
Intellectual Property of any third party, and the Company is
unaware
of any
facts which would form a reasonable basis for any such claim.
Except as
disclosed in the Prospectus, the Company is not otherwise aware
of any
infringement of or conflict with asserted rights of others with
respect to
any of the Company's Intellectual Property or the operation of
the
Business. Except as disclosed in the Prospectus, the Company is
not
otherwise
aware of any facts or circumstances which would render any of
the
Company's Intellectual Property invalid or inadequate to protect
the
interests
of the Company therein, or with respect to the patent
applications contained in the Intellectual Property, unpatentable.
Except
as
disclosed in the Prospectus, or as would not, individually or in
the
aggregate
have a Material Adverse Effect, to the best of the Company's
knowledge,
(i) there is no infringement by third parties engaged in
commercial
activity of any Intellectual Property of the Company relating
to the
Business and (ii) there are no non-commercial activities being
performed
by any third parties which, upon commercialization thereof,
could
reasonably be expected to infringe on the Intellectual Property
of
<PAGE>
6
the
Company. The Company has taken all steps necessary to perfect
its
ownership
of and interest in the Intellectual Property.
(v)
Except as
disclosed in the Prospectus, the Company has or believes
that it
can obtain in the ordinary course of business when required,
all
material
licenses, certificates, permits, consents, orders, approvals
and
authorizations from United States and foreign government
authorities,
including,
without limitation, the FDA and any agency of any foreign
government
and any other foreign regulatory authority exercising authority
comparable
to that of the FDA (including any non-governmental entity whose
approval
or authorization is required under foreign law comparable to
that
administered by the FDA), in each jurisdiction where the Company's
current
product
candidates, as described in the Prospectus, are proposed to be
registered
for sale (each a "Permit") that are necessary to the ownership
of the
Company's property or to the conduct of its business in the
manner
and to the
extent now conducted, with no material restrictions or
qualifications (assuming no material future changes, which are
not
currently
proposed, in applicable regulations governing the process of
obtaining
such licenses, certificates, permits, consents, orders,
approvals
and authorizations). Each issued Permit is currently in full
force and
effect, and no proceeding has been instituted or is pending or,
to the
best of the Company's knowledge, is contemplated or threatened,
which in
any manner adversely affects or draws into question the
validity
or
effectiveness thereof or relates in any way to the revocation
or
modification thereof.
(w)
Each
Investigational New Drug application ("IND") to the FDA or
similar
application to foreign regulatory bodies, and related documents
and
information, has been submitted and maintained in compliance in
all
material
respects with applicable statutes, rules and regulations
administered or promulgated by the FDA or other regulatory body.
The
studies,
tests and preclinical and clinical trials conducted by or on
behalf of
the Company that are described in the Prospectus were and, if
still
pending, are being, conducted, to the best of the Company's
knowledge,
in all material respects in accordance with experimental
protocols,
procedures and controls pursuant to all applicable current Good
Laboratory
and Good Clinical Practices and the drug substances used in the
clinical
trials have been manufactured under current Good Manufacturing
Practices.
The Company uses all commercially reasonable efforts to review,
from time
to time, the progress and results of the studies, tests and
preclinical and clinical trials and, based upon (i) the
information
provided
to the Company by the third parties conducting such studies,
tests and
preclinical and clinical trials that are described in the
Prospectus
and the Company's review of such information, and (ii) the
Company's
actual knowledge, the Company reasonably believes that the
descriptions of the results of such studies, tests and preclinical
and
clinical
trials are accurate and complete in all material respects. The
Company
has not received any notices or correspondence from the FDA or
any
foreign,
state or local governmental body exercising comparable
authority
requiring
the termination, suspension or material modification of any
studies,
tests or preclinical or clinical trials conducted by or on
behalf
of the
Company. No filing or submission to the FDA or any other
regulatory
body, that
is intended to be the basis for any approval of the Company's
product
candidates, contains any material omission or material false
information.
(x)
The Company has
made available to counsel to the Underwriters FDA
and
regulatory correspondence logs, and such logs contain complete
and
accurate
descriptions, in all material respects, of all material
correspondence between the Company on the one hand and the FDA on
the
other
hand, relating to the clinical trials of the Company's product
candidates
under development being conducted under the two
Company-sponsored INDs.
(y)
The Company has
good and marketable title in fee simple to, or has
valid
rights to lease or otherwise use, all items of real or personal
property
which are material to the business of the Company taken as a
whole, in
each case free and clear of all liens, encumbrances, claims and
defects
that may result in a Material Adverse Effect.
(z)
No organized
labor disturbance by the employees of the Company
exists or,
to the best of the Company's knowledge, is imminent which might
be
expected to have a Material Adverse Effect. The Company is not
aware
that any
key employee or significant group of employees of the Company
plans to
terminate employment with the Company.
<PAGE>
7
(aa)
No "prohibited
transaction" (as defined in Section 406 of the
Employee
Retirement Income Security Act of 1974, as amended, including
the
regulations and published interpretations thereunder ("ERISA"), or
Section
4975 of
the Internal Revenue Code of 1986, as amended from time to time
(the
"Code")), which is not otherwise exempt, or "accumulated
funding
deficiency" (as defined in Section 302 of ERISA) or any of the
events set
forth in
Section 4043(b) of ERISA (other than events with respect to
which
the 30-day
notice requirement under Section 4043 of ERISA has been waived)
has
occurred with respect to any employee benefit plan which could have
a
Material
Adverse Effect; each employee benefit plan is in compliance in
all
material respects with applicable law, including ERISA and the
Code;
the
Company has not incurred, and does not expect to incur, any
liability
under
Title IV of ERISA with respect to the termination of, or
withdrawal
from, any
"pension plan"; and each "pension plan" (as defined in ERISA)
for which
the Company would have any liability that is intended to be
qualified
under Section 401(a) of the Code is so qualified in all
material
respects
and nothing has occurred, whether by action or by failure to
act,
which
could cause the loss of such qualification in such a way as
would
result in
a Material Adverse Effect.
(bb)
There has been no
storage, generation, transportation, handling,
treatment,
disposal, discharge, emission, or other release of any kind of
toxic or
other wastes or other hazardous substances by, due to, or
caused
by the
Company (or, to the best of the Company's knowledge, any other
entity for
whose acts or omissions the Company is or may be liable) upon
any of the
property now or previously owned, controlled or leased by the
Company
(or any of its previously owned or controlled subsidiaries), or
upon any
other property, in violation of any statute or any ordinance,
rule,
regulation, order, judgment, decree or permit or which would,
under
any
statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any
liability
under
laws, rules and regulations relating to the protection of the
environment, except for any violation or liability which would not
have,
singularly
or in the aggregate with all such violations and liabilities, a
Material
Adverse Effect; there has been no disposal, discharge, emission
or other
release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous
substances
with respect to which the Company or any of its subsidiaries
have
knowledge, except for any such disposal, discharge, emission,
or
other
release of any kind which would not have, singularly or in the
aggregate
with all such discharges and other releases, a Material Adverse
Effect.
(cc)
The Company and each
of its subsidiaries (when any such subsidiaries
were in existence) (i)
have filed with all necessary federal, state and
foreign
income and franchise tax returns, (ii) have paid all federal
state,
local and foreign taxes due and payable for which it is liable,
and
(iii) do
not have any tax deficiency or claims outstanding or assessed
or,
to the
best of the Company's knowledge, proposed against it which
could
reasonably
be expected to have a Material Adverse Effect.
(dd)
The Company carries,
or is covered by, insurance in such amounts and
covering
such risks as it reasonably believes to be adequate for the
conduct of
its business and the value of its properties and as it
reasonably
believes to be customary for companies engaged in similar
businesses
in similar industries.
(ee)
The Company maintains
a system of internal accounting controls
sufficient
to provide reasonable assurances that (i) transactions are
executed
in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to
permit
preparation of financial statements in conformity with GAAP 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; and the chief executive officer and the chief
financial
officer 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 which are applicable
to the
Company, and the statements contained in any such certification
are
complete
and correct.
(ff)
The Company has
established and maintains disclosure controls and
procedures
(as such term is defined in Rule 13a-15 under the Exchange Act)
which (i)
are designed to ensure that material information relating to
the
Company,
including its consolidated subsidiaries, is made known to the
Company's
principal executive officer and its principal financial officer
by others within those
entities, particularly during the
<PAGE>
8
periods in
which the periodic reports required under the Exchange Act are
being
prepared; (ii) provide for the periodic evaluation of the
effectiveness of such disclosure controls and procedures as of the
end of
the period
covered by the Company's most recent annual or quarterly report
filed with
the Commission; and (iii) are effective in all material
respects
to perform the functions for which they were established.
(gg)
Based on the most
recent evaluation of its disclosure controls and
procedures, the Company is not aware of: (i) any significant
deficiency in
the design
or operation of its internal controls which could adversely
affect the
Company's ability to record, process, summarize and report
financial
data; (ii) any material weaknesses in internal controls; or
(iii) any
fraud, whether or not material, that involves management or
other
employees who have a significant role in the Company's internal
controls.
(hh)
Since the date of the
most recent evaluation of such disclosure
controls
and procedures, there has been no change in internal control
over
financial
reporting that occurred during the fiscal quarter ended
September
30, 2005, that has materially affected, or is reasonably likely
to
materially affect, the Company's internal control over
financial
reporting,
including any corrective actions with regard to significant
deficiencies and material weaknesses that would have such a
material
effect.
(ii)
There are no material
off-balance sheet transactions, arrangements,
obligations (including contingent obligations), or any other
relationships
not set
forth in the Prospectus, with unconsolidated entities or other
persons,
that may have a Material Adverse Effect on the Company's
financial
condition, changes in financial condition, results of
operations, liquidity, capital expenditures, capital resources,
or
significant components of revenues or expenses.
(jj)
The minute books of
the Company and each of its subsidiaries (for
such
periods that any such subsidiaries were in existence) have been
made
available
to the Underwriters and counsel for the Underwriters, and such
books (i)
contain a complete summary of all meetings and actions of the
board of
directors (including each board committee) and shareholders of
the
Company and each of its subsidiaries since the time of their
respective
incorporation through the date of the latest meeting and
action,
and (ii) accurately in all material respects reflect all
transactions referred to in such minutes.
(kk)
There is no franchise,
lease, contract, agreement or document
required
by the Securities Act or by the Rules and Regulations to be
described
in the Prospectus or to be filed as an exhibit to the
Registration Statements which is not described or filed therein
as
required;
and all descriptions of any such franchises, leases, contracts,
agreements
or documents contained in, or incorporated by reference to, the
Registration Statements are accurate and complete descriptions of
such
documents
in all material respects. Other than as described in the
Prospectus, no such franchise, lease, contract or agreement has
been
suspended
or terminated for convenience or default by the Company or any
of the
other parties thereto, and the Company has not received notice,
nor
does it
have any other knowledge, of any such pending or threatened
suspension
or termination, except for such pending or threatened
suspensions or terminations that would not reasonably be expected
to,
singularly
or in the aggregate, have a Material Adverse Effect.
(ll)
The statistical and
market-related data included in the Prospectus
and the
Registration Statement are based on or derived from sources
which
the
Company believes to be reliable and accurate.
(mm)
No forward-looking
statement (within the meaning of Section 27A of
the
Securities Act and Section 21E of the Exchange Act) contained in
the
Prospectus
has been made or reaffirmed without a reasonable basis or has
been
disclosed other than in good faith.
(nn)
No relationship,
direct or indirect, exists between or among the
Company on
the one hand, and the directors, officers, stockholders,
customers
or suppliers of the Company on the other hand, which is
required
to be
described in the Prospectus and which is not so described.
(oo)
No person or entity
has the right to require registration of shares
of Common
Stock or other securities of the Company because of the filing
or
effectiveness of the Registration Statements or otherwise, except
for
persons
and entities who have expressly waived such right or who have
been
given
<PAGE>
9
timely and
proper notice and have failed to exercise such right within the
time or
times required under the terms and conditions of such right.
(pp)
The Company does not
own any "margin securities" as that term is
defined in
Regulation U of the Board of Governors of the Federal Reserve
System
(the "Federal Reserve Board"), and none of the proceeds of the
sale
of the
Stock will be used, directly or indirectly, for the purpose of
purchasing
or carrying any margin security, for the purpose of reducing or
retiring
any indebtedness which was originally incurred to purchase or
carry any
margin security or for any other purpose which might cause the
Stock to
be considered a "purpose credit" within the meanings of
Regulation
T, U or X of the Federal Reserve Board.
(qq)
The Company is not a
party to any contract, agreement or
understanding with any person that would give rise to a valid
claim
against
the Company or the Underwriters for a brokerage commission,
finder's
fee or like payment in connection with the offering and sale of
the Stock
and the Company shall hold the Underwriters harmless from and
against
any such fees.
(rr) The Stock is registered under the
Exchange Act and is duly listed
and
admitted and authorized for trading, subject to official notice
of
issuance,
on the Nasdaq National Market and the Company has taken no
action
that is designed to terminate, or that the Company reasonably
believes
is likely to have the effect of terminating, the registration
of
the Common
Stock under the Exchange Act or delisting or suspending from
trading
the Common Stock from Nasdaq, nor has the Company received any
information from the Commission or the NASD suggesting that it
is
contemplating terminating or suspending such registration or
listing.
(ss)
The Company has taken
all necessary actions to ensure that, upon and
at all times
after Nasdaq shall have approved the Stock for listing, the
Company
will be in compliance with all applicable corporate governance
requirements set forth in the Nasdaq Marketplace Rules that are
then in
effect and
is actively taking steps to ensure that it will be in
compliance
with other applicable corporate governance requirements set
forth in
the Nasdaq Marketplace Rules not currently in effect upon and
all
times
after the effectiveness of such requirements.
(tt)
Neither the Company
nor, to the best of the Company's knowledge, any
employee
or agent of the Company or any subsidiary, has made any
contribution or other payment to any official of, or candidate for,
any
federal,
state or foreign office in violation of any law or of the
character
required to be disclosed in the Prospectus.
(uu)
There are no
transactions, arrangements or other relationships
between
and/or among the Company, any of its affiliates (as such term
is
defined in
Rule 405 under the Securities Act) and any unconsolidated
entity,
including, but not limited to, any structured finance, special
purpose or
limited purpose entity that could reasonably be expected to
materially
affect the Company's liquidity or the availability of or
requirements for its capital resources required to be described in
the
Prospectus
which have not been described as required.
(vv)
There are no
outstanding loans, advances (except normal advances for
business
expenses in the ordinary course of business) or guarantees or
indebtedness by the Company to or for the benefit of any of the
officers
or
directors of the Company, except as disclosed in the
Prospectus.
(ww)
There are no
affiliations with the NASD among the Company's
officers,
directors or, to the best of the knowledge of the Company, any
five
percent (5%) or greater stockholder of the Company, except as
set
forth in
the Registration Statements or the Prospectus or otherwise
disclosed
in writing to the Representatives.
(xx)
No approval of the
shareholders of the Company under the rules and
regulations of any trading market is required for the Company to
issue and
deliver
the Stock to the Underwriters, including such as may be
required
pursuant
to Rule 4350 of the Nasdaq Marketplace Rules.
<PAGE>
10
3. PURCHASE SALE AND
DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements
herein contained, but subject to the
terms and conditions herein set forth, the
Company agrees to sell to each
Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase
from the Company that number of shares of
Firm Stock (rounded up or down, as
determined by SG Cowen in its discretion,
in order to avoid fractions) obtained
by multiplying 6,500,000 shares of Firm
Stock by a fraction the numerator of
which is the number of shares of Firm Stock
set forth opposite the name of such
Underwriter in Schedule A hereto and the
denominator of which is the total
number of shares of Firm Stock.
The
purchase price per share to be paid by the Underwriters to the
Company
