6,200,000 Shares of Common
Stock
Dynavax Technologies Corporation
(a Delaware corporation)
Common Stock, par value $0.001 per
share
Pacific Growth
Equities, LLC
One Bush Street, Suite 1700
San Francisco, California 94104
Dynavax
Technologies Corporation, a Delaware corporation (the “
Company ”), proposes to issue and sell to the
Underwriters named in Schedule I annexed hereto (the
“ Underwriters ”) an aggregate of 6,200,000
shares of Common Stock, $0.001 par value per share (the “
Common Stock ”), of the Company (the “ Firm
Shares ”). 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 930,000 shares of Common Stock (the “ Option
Shares ”). The Firm Shares and the Option Shares (to the
extent the aforementioned option is exercised) are herein
collectively referred to as the “ Offered Securities
.”
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, the Underwriters as set forth below
in this Section.
(a)
A registration statement on
Form S-3 (No. 333-137608) relating to the Offered
Securities, including a form of prospectus (the “ initial
registration statement ”), has been filed with the
Securities and Exchange Commission (the “ Commission
”) and was declared effective on October 3, 2006 (the
“ Initial Registration Statement Effective Date
”). As used in this Underwriting Agreement, " Registration
Statement ” as of any time means such registration
statement in the form then filed with the Commission, including any
amendment thereto, any document incorporated by reference therein
and any information in a prospectus or prospectus supplement deemed
or retroactively deemed to be a part thereof pursuant to
Rule 430B (“ Rule 430B ”) or 430C
(“ Rule 430C ”) under the Securities Act of
1933 (“ Securities Act ”) that has not been
superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of
the time of the first contract of sale for the Offered Securities,
which time shall be considered the “ Effective Date
” of the Registration Statement relating to the Offered
Securities. For purposes of this definition, information contained
in a form of prospectus or prospectus supplement that is deemed
retroactively to be a part of the Registration Statement pursuant
to Rule 430B shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
For purposes of this Underwriting Agreement, “ Applicable
Time ” means 11:45 p.m. Pacific Daylight Time on
October 3, 2006.
“
Statutory Prospectus ” as of any time means the
prospectus relating to the Offered Securities that is included in
the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any
basic prospectus or prospectus supplement deemed to be a part
thereof pursuant to Rule 430B or 430C that has not been
superseded or modified. For purposes of this definition,
information contained in a form of prospectus (including a
prospectus supplement) that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Statutory Prospectus only as of
the actual time that form of prospectus (including a prospectus
supplement) is filed with the Commission pursuant to Rule 424(b)
(“ Rule 424(b) ”) under the Securities Act.
“ Prospectus ” means the Statutory Prospectus
that discloses the public offering price and other final terms of
the Offered Securities and otherwise satisfies Section 10(a) of the
Securities Act.
“
Issuer Free Writing Prospectus ” means any
“issuer free writing prospectus,” as defined in
Rule 433 (“ Rule 433 ”) under the
Securities Act, relating to the Offered Securities in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g). “ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in
Schedule IV . “ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
(b)
On the Initial Registration
Statement Effectiveness Date, at the time of each amendment thereto
for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether by post-effective amendment, incorporated
report or form of prospectus) and on the Effective Date, the
Registration Statement complied and will comply in all material
respects with the requirements of the Securities Act and the rules
and regulations of the Commission (the “ Rules and
Regulations ”) and did not 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 in light of the circumstances under which they
were made (with respect to the Prospectus and any supplement or
amendment thereto) not misleading. At the Applicable Time, the
Registration Statement and the Statutory Prospectus will comply in
all material respects with the requirements of the Securities Act
and the Rules and Regulations, and neither of such documents
contains, or will contain, any untrue statement of a material fact
or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, however , that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished herein
or in writing to the Company by or on behalf of the Underwriters
for inclusion therein, it being understood and agreed that the only
such information is that described in Section 11
hereof.
(c)
The date of this Underwriting
Agreement is not more than three years subsequent to the Initial
Registration Statement Effective Date. If, immediately prior to the
third anniversary of the Initial Registration Statement Effective
Date, any of the Offered Securities remain unsold by the
Underwriters, the Company, prior to that third anniversary will, if
it has not already done so, file a new shelf registration statement
relating to the Offered Securities, in a form satisfactory to the
Underwriters, will use commercially reasonable efforts to cause
such
2
registration
statement to be declared effective within 180 days after that
third anniversary, and will take all other action necessary or
appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the expired registration
statement relating to the Offered Securities. References herein to
the Registration Statement shall include such new shelf
registration statement.
(d)
As of the Applicable Time, neither
(i) the General Use Issuer Free Writing Prospectus(es) issued
at or prior to the Applicable Time, the Statutory Prospectus at the
Applicable Time and the information set forth in
Schedule IV , all considered together (collectively,
the “ General Disclosure Package ”), nor
(ii) any individual Limited Use Issuer Free Writing
Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any prospectus included in
the Registration Statement or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished
to the Company by the Underwriter specifically for use therein, it
being understood and agreed that the information furnished by the
Underwriters consists only of the information described in
Section 11 hereto.
(e)
Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Offered Securities
or until any earlier date that the Company notified or notifies the
Underwriters as described in the next sentence, did not, does not
and will not include any information that conflicted, conflicts or
will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, (i) the Company has
promptly notified or will promptly notify the Underwriters and (ii)
the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission. The foregoing
two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by the
Underwriters specifically for use therein, it being understood and
agreed that the information furnished by the Underwriters consists
only of the information described in Section 11 hereto. The
Company has complied with and will comply with Rule 433 under
the Securities Act.
The Company and
each subsidiary of the Company listed on Schedule III
attached hereto (the “ Subsidiaries ” and each a
“ Subsidiary ”) have been duly incorporated and
are validly existing corporations in good standing under the laws
of their respective jurisdictions of organization, with full power
and authority (corporate and other) to own, lease and operate, as
the case may be, their respective properties and conduct their
respective businesses as described in the General Disclosure
Package; and each of the Company and the Subsidiaries is duly
qualified to do business as a foreign corporation in good standing
in each jurisdiction in which the conduct of its business requires
such qualification, except where the failure to be so
qualified
3
or be in good
standing would not reasonably be expected to have, individually or
in the aggregate, a material adverse effect on the financial
condition, business, properties, or results of operations of the
Company and the Subsidiaries, taken as a whole (“ Material
Adverse Effect ”). Neither the Company nor any of the
Subsidiaries has received a written notification that any
proceeding has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification, and, to the
Company’s knowledge, no proceeding has been instituted in any
such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification
where such proceeding would be expected to have a Material Adverse
Effect. Each of the Company and the Subsidiaries is in possession
of and operating in material compliance with all authorizations,
licenses, certificates, consents, orders and permits from state,
federal and other regulatory authorities that are material to the
conduct of its business, all of which are valid and in full force
and effect. Neither the Company nor any Subsidiary is in violation
of its charter or bylaws. The Subsidiaries are the only
subsidiaries of the Company within the meaning of Rule 405
under the Securities Act, and the Company does not own or control,
directly or indirectly, any corporation, association or other
entity other than the Subsidiaries. Neither of the Company’s
Subsidiaries based in Asia (Dynavax Asia Pte. Ltd and Ryden
Therapeutics KK) are material to the business or operations of the
Company, and both are either in the process of winding down or are
not actively conducting business.
(f)
The Company has all requisite
corporate power and authority to enter into this Underwriting
Agreement and perform the transactions contemplated hereby. This
Underwriting Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement on
the part of the Company, enforceable in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors’ rights generally or by general equitable
principles. The execution, delivery and performance of this
Underwriting Agreement and the consummation of the transactions
herein contemplated will not result in (A) any violation of
the charter, bylaws or other organizational documents of the
Company or any Subsidiary or (B) a breach or violation of any
of the terms and provisions of, or constitute a default under any
contract, agreement, license, understanding, indenture, mortgage,
deed of trust, loan agreement, joint venture, lease (including
without limitation any sale and leaseback arrangement) or bond,
debenture, note or other evidence of indebtedness, to which the
Company or any Subsidiary is a party or by or to which it or its
properties (including without limitation all Company Intellectual
Property (as defined in Section 1(v)) are or may be bound or
subject (each, a “ Contract ”) or any law,
order, ruling, rule, regulation, writ, assessment, injunction,
judgment or decree of any government or governmental court, agency
or body, domestic or foreign, having jurisdiction over the Company,
any Subsidiary or over any of their respective properties
(including without limitation all Company Intellectual Property) or
Contracts (“ Government Entity ”) or by or to
which they or such of their properties or Contracts are or may be
bound or subject (each, a “ Law ”), except in
the case of this clause (B), such defaults or violations which
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. No consent, approval,
authorization or order of or qualification with any Government
Entity is required for the execution and delivery of this
Underwriting Agreement and the consummation by the Company of the
transactions herein contemplated, except such consents
(i) that will be obtained prior to the Closing Date (as
defined in Section 2) and (ii) as may be required under
the Securities Act, the
4
Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”) (if applicable), the Rules and Regulations, or under state
or other securities or blue sky laws, the NASDAQ Global Market or
the National Association of Securities Dealers, Inc. (the “
NASD ”), all of which requirements will be satisfied
in all material respects at or prior to the Closing
Date.
(g)
Except as disclosed in the General
Disclosure Package, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s
knowledge, threatened to which the Company or any Subsidiary or, to
the Company’s knowledge, to which any of their respective
directors or officers is a party, or of which any of their
respective properties (including without limitation all Company
Intellectual Property) or any Contract is the subject, at law or in
equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency which, if adversely decided, would be reasonably likely to
result in a decision, ruling, finding, judgment, decree, order or
settlement having a Material Adverse Effect or to prevent
consummation of the transactions contemplated hereby. There are no
Contracts of a character required to be described or referred to in
the General Disclosure Package, and/or filed as an exhibit to, the
Registration Statement or the Prospectus by the Securities Act, the
Exchange Act or the Rules and Regulations which have not been
accurately described in all material respects in the General
Disclosure Package, and/or filed as an exhibit to, the Registration
Statement or the Statutory Prospectus at the Applicable Time, as
applicable. The Contracts described in the General Disclosure
Package are in full force and effect and are valid agreements,
enforceable by the Company, except as the enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors’ rights generally or by general equitable
principles. No event has occurred, and no circumstance or condition
exists, that (with or without notice or lapse of time) (A) has
resulted or is reasonably likely to result in a breach, default,
violation or waiver of any Contract or any provision thereof;
(B) gives or is reasonably likely to give any party to any
Contract the right to declare a breach, default or violation of or
exercise any remedy under such Contract; (C) gives or is
reasonably likely to give any party to any Contract the right to
cancel, terminate, modify or be excused from performance of any
obligations under such Contract; or (D) has resulted or is
reasonably likely to result in a violation of any Law or in
imposition of any fines, penalties, damages, injunctions,
prohibitions or other sanctions, except in the cases of clauses
(A), (B) and (C), where such breaches, defaults, violations,
waivers, remedies, cancellations, terminations, modifications,
excuses or impositions would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect.
(h)
All outstanding shares of capital
stock of the Company and each Subsidiary have been duly authorized
and validly issued and are fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws,
and have not been issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
securities. The Company owns all of the outstanding shares of the
Subsidiaries, except for shares held by employees of certain of the
Subsidiaries. The authorized, issued and outstanding capital stock
of the Company is as set forth in the Statutory Prospectus at the
Applicable Time and conforms in all material respects to the
statements relating thereto contained in the General Disclosure
Package (and such statements correctly state the substance of the
instruments defining the capitalization of the Company). The
Offered Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to this Underwriting Agreement and,
when issued and delivered by the Company against payment therefor
in accordance with the terms of this
5
Underwriting
Agreement, will be duly and validly issued and fully paid and
nonassessable, and will be sold free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest. No
preemptive right, co-sale right, registration right, right of first
refusal or other similar right of stockholders exists with respect
to any of the Offered Securities or the issuance and sale thereof,
other than those that have been expressly waived prior to the date
hereof, those that will have been expressly waived prior to the
Closing Date (as defined in Section 2 below), and those that
will automatically expire upon or will not apply to the
consummation of the transactions contemplated on the Closing Date.
No further approval or authorization of any stockholder, the Board
of Directors of the Company or others is required for the issuance
and sale or transfer of the Offered Securities, except as may be
required under state or other securities or blue sky laws, or the
NASD. Except as disclosed in the General Disclosure Package and the
financial statements of the Company, and the related notes thereto,
included or incorporated by reference in the Statutory Prospectus
at the Applicable Time, the Company does not have outstanding any
options to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, registration rights,
convertible securities or obligations. The description of the
Company’s stock option plans, employee stock purchase plans
or similar arrangements, and the options or other rights granted
and exercised thereunder, set forth in the General Disclosure
Package accurately and fairly presents, in all material respects,
the information required to be shown with respect to such plans,
arrangements, options and rights. Each stock option granted by the
Company (i) was granted in accordance with the terms of the
Company’s stock option plans, and (ii) was granted with
an exercise price at least equal to the fair market value of the
Common Stock on the date such option would be considered granted
under generally accepted accounting principles in the United States
and applicable law (that is, no option has been
backdated).
(i)
The Company meets the eligibility
requirements for the use of Commission Form S-3 to register a
primary offering of securities. When filed with the Commission, all
of the Company’s Exchange Act reports incorporated by
reference into the Statutory Prospectus at the Applicable Time
conformed, to the extent applicable, in all material respects to
the requirements of the Exchange Act and the Rules and
Regulations.
(j)
Ernst & Young LLP, whose report
on the financial statements of the Company is filed with the
Commission and is incorporated by reference in the Registration
Statement, the Statutory Prospectus at the Applicable Time and the
Prospectus, are independent registered public accountants as
required by the Securities Act and the Rules and Regulations.
Except as described in the General Disclosure Package and as
pre-approved in accordance with the requirements set forth in
Section 10A of the Exchange Act, to the Company’s
knowledge, Ernst & Young LLP has not engaged in any
“prohibited activities” (as defined in Section 10A
of the Exchange Act) on behalf of the Company.
(k)
The financial statements of the
Company, together with the related schedules and notes, included in
or incorporated by reference in the Registration Statement and
included in the General Disclosure Package: (i) present
fairly, in all material respects, the financial position of the
Company as of the dates indicated and the results of operations and
cash flows of the Company for the periods specified; (ii) have
been prepared in compliance with requirements of the Securities Act
and the Rules and Regulations and in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis during the periods
6
presented and
the schedules included in the Registration Statement present
fairly, in all material respects, the information required to be
stated therein ( provided, however , that the statements
that are unaudited are subject to normal year-end adjustments and
do not contain certain footnotes required by generally accepted
accounting principles); (iii) comply with the antifraud
provisions of the Federal securities laws; and (iv) describe
accurately, in all material respects, the controlling principles
used to form the basis for their presentation. There are no
financial statements (historical or pro forma) and/or related
schedules and notes that are required to be included in the
Registration Statement, the Statutory Prospectus at the Applicable
Time and the Prospectus that are not included as required by the
Securities Act, the Exchange Act and/or the Rules and
Regulations.
(l)
Subsequent to the respective dates
as of which information is given in the Registration Statement and
the General Disclosure Package there has not been (i) any
change, development or event that might reasonably be expected to
result, individually or in the aggregate, in a Material Adverse
Effect, (ii) any transaction that is material to the Company,
(iii) any obligation, direct or contingent, that is material
to the Company, incurred by the Company or any Subsidiary,
(iv) any change in the capital stock or outstanding
indebtedness of the Company that is material to the Company,
(v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company or (vi) any loss or
damage (whether or not insured) to the property of the Company that
has been sustained or will have been sustained that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(m)
Except as set forth in the General
Disclosure Package: (i) each of the Company and the
Subsidiaries (A) has good and marketable title to all
properties and assets described in the General Disclosure Package
as owned by it and (B) owns or possesses adequate licenses or
other rights of use to all patents, patent applications (for the
purpose of this sentence, a patent application shall be considered
to be the patent that would issue from such patent application as
currently pending), patent rights, inventions, trade secrets,
know-how, trademarks, service marks, trade names, domain names,
copyrights and other information (collectively, “
Intellectual Property ”) that is necessary or
reasonably useful to conduct its business as it is or may in the
future be conducted, as such business or potential future business
is described in the General Disclosure Package, in the case of
clauses (A) and (B) free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest,
whether imposed by agreement, contract, understanding, law, equity
or otherwise, except where any failure to have good and marketable
title to such properties and assets or own or possess such adequate
licenses or other rights of use to such Intellectual Property,
individually or in the aggregate, would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse
Effect; and (ii) each of the Company and the Subsidiaries has
valid and enforceable leases, including without limitation any
leases that are the subject of any sale and leaseback arrangement,
for all properties described in the General Disclosure Package as
leased by it, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors’ rights
generally or by general equitable principles. Except as set forth
in the General Disclosure Package, the Company owns or leases all
such properties as are necessary to its operations as now conducted
or as proposed to be conducted.
(n)
Each of the Company and the
Subsidiaries has received timely extensions for filing or timely
filed all Federal, state and foreign income and franchise tax
returns required to be
7
filed by it on
or prior to the date hereof, and has paid all taxes shown thereon
as due, and there is no tax deficiency that has been or, to the
Company’s knowledge, might be asserted against the Company or
any Subsidiary that might reasonably be expected to have a Material
Adverse Effect. All tax liabilities are adequately provided for on
the books of the Company.
(o)
The Company has established and
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that: (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles in the United States 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.
(p)
Except as described in the General
Disclosure Package, the Company’s Board of Directors has
validly appointed an Audit Committee whose composition satisfies
the requirements of Rule 4350(d)(2) of the Rules of the National
Association of Securities Dealers, Inc. (the “ NASD
Rules ”) and the Board of Directors and/or the Audit
Committee has adopted a charter that satisfies the requirements of
Rule 4350(d)(1) of the NASD Rules. The Audit Committee has
reviewed the adequacy of its charter within the past
12 months.
(q)
The Company has established and
maintains “disclosure controls and procedures” (as such
term is defined in Rules 13a-15 and 15d-15 under the Exchange
Act). Since the date of the most recent evaluation of such
disclosure controls and procedures, except as described in the
General Disclosure Package, 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
Company is in compliance in all material respects with all
provisions currently in effect and applicable to the Company of the
Sarbanes-Oxley Act of 2002, and all rules and regulations
promulgated thereunder or implementing the provisions
thereof.
(r)
The Company maintains insurance with
insurers of recognized financial responsibility of the types and in
the amounts generally deemed adequate for its business and
consistent with insurance coverage maintained by similar companies
in similar businesses, including, but not limited to, insurance
covering the acts and omissions of directors and officers, real and
personal property owned or leased by the Company against theft,
damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full
force and effect; and the Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not reasonably be expected to have a Material
Adverse Effect.
(s)
Neither the Company nor any
Subsidiary has sustained since the date of the latest financial
statements included in the General Disclosure Package any losses or
interferences 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 General
Disclosure Package or other than any losses or
8
interferences
which would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
(t)
No labor dispute with employees of
the Company exists or, to the Company’s knowledge, is
imminent which might reasonably be expected to have a Material
Adverse Effect. No collective bargaining agreement exists with any
of the Company’s employees and, to the Company’s
knowledge, no such agreement is imminent.
(u)
Except as disclosed in the General
Disclosure Package, neither the Company nor any Subsidiary has
received any notice or has any knowledge of (i) any potential
infringement or misappropriation by others of Intellectual Property
that the Company or any Subsidiary owns or for which the Company or
any Subsidiary possesses licenses or other rights of use (“
Company Intellectual Property ”), (ii) any
Intellectual Property of others that potentially conflicts or
interferes with Company Intellectual Property or (iii) any
potential infringement or misappropriation of Intellectual Property
of others by or on behalf of the Company or any Subsidiary in the
conduct of its business as it is or has been conducted or as it may
in the future be conducted, in each case as such business or
potential future business is described in the General Disclosure
Package, that in each instance of the preceding cases might
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect if the subject of a decision, ruling,
finding, judgment, decree, order or settlement that is in whole or
in part unfavorable to the Company or any Subsidiary. With respect
to all patents, copyrights, trademarks and applications for any of
the foregoing included in Company Intellectual Property, either the
Company or a Subsidiary exclusively holds the first rights to
enforce, protect and defend such Company Intellectual Property and
to protect the subject matter thereof by bringing claims, demands,
suits and actions and proceedings against others for any and all
legal and equitable remedies by reason of past, present and future
infringement of such Company Intellectual Property. Except as
disclosed in the General Disclosure Package, no patent, copyright,
trademark or application for any of the foregoing included in the
Company Intellectual Property is currently the subject of or
subject to any license or sublicense to a third party or the
subject of or subject to any license, contract, agreement or
understanding pursuant to which the Company is or may become
obligated to transfer or grant to others any right, title or
interest in or to any such Company Intellectual Property, except
for such licenses, sublicenses, transfers and grants that would not
reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect. To the Company’s knowledge, no
claim of any patent or patent application (assuming the claims of
patent applications issue as currently pending) included in Company
Intellectual Property is unenforceable or invalid, except for such
unenforceability or invalidity that would not reasonably be
expected to result, individually or in the aggregate, in a Material
Adverse Effect. No action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand has occurred, is
pending, has been made, or, to the knowledge of the Company, is
threatened, that challenges the validity, enforceability, scope,
use, or ownership of, that may result in the Company becoming
obligated to transfer or grant to others any right, title or
interest in or to Company Intellectual Property, or that otherwise
relates to, any Company Intellectual Property anywhere in the
world, nor to the Company’s knowledge is there any reasonable
basis on which a third party could bring any such action, suit,
proceeding, hearing, investigation, charge, complaint, claim or
demand. All patent applications licensed to the Company or the
Subsidiaries for which the Company controlled or controls
prosecution, and all patent applications owned by the Company or
the Subsidiaries (collectively, “ Company
9
Patent
Applications ”), as
well as all patent applications from which unexpired patents
licensed to or owned by the Company or the Subsidiaries
(collectively “ Company Patents ”) issued and
for which the Company or the Subsidiaries controlled or controls
prosecution, were duly and properly filed with the U.S. Patent and
Trademark Office (the “ PTO ”) or with
appropriate foreign and international patent authorities, as
applicable, and were filed and currently are in compliance with
statutory and other legal requirements (including without
limitation payment of filing, prosecution and maintenance fees).
The Company Patent Applications are currently pending with the
applicable authorities and have not been abandoned or finally
disallowed. For each of the U.S. Company Patents and applications
from which they issued, the U.S. Company Patent Applications, the
non-U.S. Company Patents and applications from which they issued,
and the non-U.S. Company Patent Applications, there has been
compliance with any applicable PTO duty of candor and disclosure
and any applicable ex-U.S. duties, responsibilities or obligations
similar or corresponding thereto. Each former and current employee
and independent contractor of the Company and each of the
Subsidiaries has signed and delivered one or more written contracts
with the Company or the Subsidiaries pursuant to which such
employee or independent contractor assigns to the Company or the
Subsidiaries all of his, her or its rights in and to any
inventions, discoveries, improvements, works of authorship,
know-how or information made, conceived, reduced to practice,
authored or discovered in the course of employment by or
performance of services for the Company or the Subsidiaries and any
and all patent rights, copyrights, trademark and other intellectual
property rights therein or thereto.
(v)
The Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on the
NASDAQ Global Market, and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common
Stock from the NASDAQ Global Market. Except as described in the
General Disclosure Package, the Company has not received any
notification that the Commission or the NASD is contemplating
terminating such registration or listing. The Company has taken all
actions necessary to list the Offered Securities for quotation on
the NASDAQ Global Market.
(w)
The Company is not and, after giving
effect to the offering and sale of the Offered Securities, will not
be an “investment company,” as such term is defined in
the Investment Company Act of 1940, as amended;
(x)
The Company has not distributed and,
prior to the later to occur of (i) the Closing Date and
(ii) completion of the distribution of the Offered Securities,
will not distribute, any offering materials in connection with the
offering and sale of the Offered Securities other than the
Registration Statement, the Prospectus or, subject to
Section 8, any other materials permitted by the Securities Act
and the Rules and Regulations.
(y)
Neither the Company nor, to its
knowledge, any of its affiliates has taken, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Offered Securities. The Company acknowledges that the Underwriters
may engage in passive market making transactions in the Offered
Securities on the NASDAQ Global Market in accordance with
Regulation M under the Exchange Act.
10
(z)
Each of the Company and the
Subsidiaries is in compliance in all material respects with all
currently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ ERISA
”), except where a failure to so comply would not reasonably
be expected to have, individually or in the aggregate, a Material
Adverse Effect; to the Company’s knowledge, no unwaivable
“reportable event” (as defined in ERISA) has occurred
with respect to any “pension plan” (as defined in
ERISA) for which the Company would have any liability; the Company
has not incurred and does not expect to incur any material
liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”
or (ii) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company or any
Subsidiary 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 would cause the loss of such
qualification.
(aa)
Except as set forth in the General
Disclosure Package, (i) each of the Company and the
Subsidiaries is in material compliance with all rules, laws and
regulations relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment
(“ Environmental Laws ”) which are applicable to
its business; (ii) neither the Company nor any Subsidiary has
received any notice from any governmental authority or third party
of an asserted claim under Environmental Laws, which claim is
required to be disclosed in the General Disclosure Package; (iii),
to the Company’s knowledge, neither the Company nor any
Subsidiary is currently required to make future material capital
expenditures to comply with Environmental Laws; and (iv) to the
Company’s knowledge, no property that is owned, leased or
occupied by the Company or any Subsidiary has been designated a
Superfund site pursuant to the Comprehensive Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et seq.), or otherwise designated as a contaminated site under
applicable state or local law.
(bb)
The Company has caused each
executive officer and director listed on Schedule II
hereto to furnish to the Underwriters, on or prior to the date of
this Underwriting Agreement, a letter or letters, in form and
substance satisfactory to the Underwriters (the “ Lock-up
Agreements ”), pursuant to which such person shall agree
not to, directly or indirectly, for a period commencing on the date
of this Underwriting Agreement and ending on the close of business
on the 30th day after the date of the Prospectus (the “
Lock-up Period ”), offer, sell, pledge, contract to
sell, grant any option to purchase, grant a security interest in,
hypothecate or otherwise sell or dispose of (collectively, a
“ Disposition ”) any shares of Common Stock
(including without limitation, shares of Common Stock that may be
deemed to be beneficially owned by such person in accordance with
the Rules and Regulations and shares of Common Stock that may be
issued upon the exercise of a stock option or warrant) or any
securities convertible into, derivative of or exchangeable or
exercisable for Common Stock (collectively, “
Securities ”), owned directly by such person or as to
which such person has the power of disposition, in any such case
whether owned as of the date of such letter or acquired thereafter,
except for such Dispositions that are expressly permitted by the
Lock-up Agreements. Notwithstanding the foregoing, if (i) the
Company issues an earnings rel
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