Exhibit 1.1
DYAX CORP.
5,500,000 Shares
Common Stock
($0.01 par value per Share)
UNDERWRITING AGREEMENT
September 30, 2009
UNDERWRITING AGREEMENT
September 30, 2009
Jefferies &
Company, Inc.
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Dyax Corp., a Delaware corporation
(the “ Company ”), proposes to issue and sell to
the underwriter named in Schedule A annexed hereto (the
“ Underwriter ”), an aggregate of 5,500,000
shares (the “ Firm Shares ”) of common stock,
$0.01 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 825,000 shares of Common Stock (the “
Additional Shares ”). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred
to as the “ Shares .” The Shares are
described in the Prospectus which is referred to below.
The Company has prepared and filed,
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder
(collectively, the “ Act ”), with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement on Form S-3 (File No. 333-148317)
under the Act (the “ registration statement ”),
including a prospectus, which registration statement incorporates
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 ”). Such
registration statement has become effective under the
Act.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, as amended at the time of
such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
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 statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of
Shares pursuant to Rule 462(b) under the Act.
Except where the context otherwise
requires, “ Basic Prospectus ,” as used herein,
means any such basic prospectus and any basic prospectus furnished
to you by the Company and attached to or used with the Prospectus
Supplement (as defined below).
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be
required under the Act), in the form
furnished by the Company to you for use by the
Underwriter and by dealers in connection with the offering of the
Shares.
Except where the context otherwise
requires, “ Prospectus ,” as used herein, means
the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule B attached hereto and each “road
show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a
“written communication” (as defined in Rule 405
under the Act). The Underwriter has not offered or sold and
will not offer or sell, without the Company’s prior written
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 any 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, any 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 ” or words of similar
effect, with respect to the Registration Statement, any 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 such 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 the number of Firm Shares set forth opposite the name of
the Underwriter in Schedule A attached hereto at a purchase
price of $3.74 per Share. The Company is advised that you
intend (i) to make a public offering of the Firm Shares as
soon after the effectiveness of this Agreement as in your
judgment
2
is advisable and
(ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. You may from time to time increase
or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Company hereby
grants to the 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 Jefferies & Company, Inc. (“
Jefferies ”) 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 you through the facilities of The Depository
Trust Company (“ DTC ”) for the account of the
Underwriter. Such payment and delivery shall be made at
10:00 A.M., New York City time, on October 5, 2009
(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 & LeBoeuf
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:
(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
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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 any 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; each 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 such Basic Prospectus and the date
such Basic Prospectus was filed with the Commission and ends at the
time of purchase did or will any 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 any 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, 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,
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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
or on behalf of the Underwriter through you to the Company
expressly for use in the Registration Statement, the Prospectus or
such Permitted Free Writing Prospectus; each Incorporated Document,
at the time such document was filed, 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
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
5
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 5110(b)(7)(C)(i) of the Financial Institution
Regulatory Authority (the “ FINRA ”), 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 sections of the Registration
Statement, the Basic Prospectus and the Prospectus entitled
“Capitalization” and “Description of capital
stock” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), 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 sections of the Registration
Statement, the Basic Prospectus and the Prospectus entitled
“Capitalization” and “Description of capital
stock” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus) (subject, in
each case, to the issuance of 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 a material adverse effect on the business,
properties, financial condition, results of operations or prospects
of the Company and its subsidiaries (as defined under the
Act)
6
(each, a “
Subsidiary ”) 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) or (iii) being herein
referred to as a “ Material Adverse Effect
”);
(h)
each of the
Subsidiaries 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; none of the Subsidiaries own any patent or patent
application that is, individually or in the aggregate, material to
the Company; the Company owns, directly or indirectly, all of the
issued and outstanding capital stock of each of the Subsidiaries;
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 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;
(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 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 of the Subsidiaries 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
(B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or
7
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, with respect to clauses (B), (C),
(D) and (E) above, such breaches, violations or defaults
that would not 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 of the Company or any of the Subsidiaries, 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 of the Subsidiaries 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 of the Subsidiaries or any
of their respective properties, except, with respect to clause (B),
such breaches, violations or defaults that would not have a
Material Adverse Effect;
(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
FINRA;
(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
8
interests in the
Company, (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 and (iv) 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, except for such
rights that have been waived;
(p)
each of the
Company and the 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 any failure to obtain any of the foregoing
would not have a Material Adverse Effect; neither the Company nor
any of the Subsidiaries 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 of the Subsidiaries, 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 of the Subsidiaries or any of their
respective directors or officers is or would be a party or of which
any of their respective properties is or would be subject at law or
in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, 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)
PricewaterhouseCoopers LLP,
whose report on the consolidated financial statements of the
Company and the Subsidiaries 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 and the Subsidiaries 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
9
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; the Company and
the Subsidiaries do not have 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)
except as disclosed in the Registration Statement (excluding the
exhibits thereto), the Basic Prospectus and the Prospectus, each
stock option granted under any stock option plan of the Company or
any Subsidiary (each, a “ Stock Plan ”) was
granted with a per share exercise price no less than the fair
market value per share of Common Stock on the grant date of such
option, and no such grant involved any “back-dating”or
similar practice with respect to the effective date of such grant;
except as would not, individually or in the aggregate, have a
Material Adverse Effect, each such option (i) was granted in
compliance with applicable law and with the applicable Stock
Plan(s), (ii) was duly approved by the board of directors (or
a duly authorized committee thereof) of the Company or such
Subsidiary, as applicable, and (iii) has been properly
accounted for in the Company’s financial statements in
accordance with U.S. generally accepted accounting principles and
disclosed in the Company’s filings with the
Commission;
(u)
subsequent to the respective dates as of which information is given
in the Registration Statement, the Basic Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, in each case
excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, there has not been (i) any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management,
financial condition or results of operations of the Company and the
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),
10
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 (other than with respect to the issuance of the Shares by the
Company as contemplated by this Agreement) or outstanding
indebtedness of the Company or any Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary;
(v)
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);
(w)
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
”);
(x)
the Company and each of the Subsidiaries 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; 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 a Subsidiary is held thereby under
valid, subsisting and enforceable leases;
(y)
the Company and the Subsidiaries 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 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), except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material
Adverse Effect (collectively, “ Intellectual Property
”); except as 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 as disclosed
in the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus with respect to the ownership
rights of
11
the owners of the
Intellectual Property licensed to the Company or the rights of
parties who have licensed Intellectual Property from the Company;
(ii) to the Company’s knowledge, there is no
infringement by third parties of any Intellectual Property;
(iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s rights in or to any Intellectual
Property, and the Company is unaware of any facts which could form
a reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the validity, 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 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) to the Company’s knowledge,
there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the
Intellectual Property or that challenges the validity,
enforceability or scope of any of the Intellectual Property;
(viii) to the Company’s knowledge, 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 or patent applications
owned by, or exclusively licensed to, the Company or any
Subsidiary;
(z)
neither the Company nor any of the Subsidiaries 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 of the Subsidiaries 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, threatened, (B) no strike,
labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) no union representation dispute
currently existing concerning the employees of the Company or any
of the Subsidiaries, (ii) to the Company’s knowledge, no
union organizing activities are currently taking place concerning
the employees of the Company or any of the Subsidiaries 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
12
Security Act of
1974 (“ ERISA ”) or the rules and
regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries;
(aa)
the Company and the Subsidiaries and their respective properties,
assets and operations are in compliance with, and the Company and
each of the Subsidiaries hold all permits, authorizations and
approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such
permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; there are no past,
present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or 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 of the
Subsidiaries (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);
(bb)
all tax returns required to be filed by the Company or any of the
Subsidiaries have been timely filed, and all taxes and other
assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such
entities have been timely paid, other than those being contested in
good faith and for which adequate reserves have been
provided;
(cc)
the Company and each of the Subsidiaries maintain insurance
covering their respective properties, operations, personnel and
businesses as the Company reasonably deems adequate; such insurance
insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect
the Company and the Subsidiaries and their respective businesses;
all such insurance is fully in force on the date hereof and will be
fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason
to believe that it will not be able to renew any such insurance as
and when such insurance expires;
13
(dd)
neither the Company nor any Subsidiary has sent or received any
communication regarding termination of, or intent not to renew, any
of the contracts or agreements referred to or described in the
Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, or referred to or described in, or filed as an exhibit
to, the Registration Statement or any Incorporated Document, and no
such termination or non-renewal has been threatened by the Company
or any Subsidiary or, to the Company’s knowledge, any other
party to any such contract or agreement;
(ee)
the Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(ff)
the Company has established and maintains and evaluates
“disclosure controls and procedures” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such
term is defined in Rule 13a-15 and 15d-15 under the Exchange
Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established; the Company’s independent auditors and the Audit
Committee of the Board of Directors of the Company have been
advised of: (i) all significant deficiencies, if any, in the
design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize
and report financial data; and (ii) all fraud, if any, whether
or not material, that involves management or other employees who
have a role in the Company’s internal controls; all material
weaknesses, if any, in internal controls have been identified to
the Company’s independent auditors; since the date of the
most recent evaluation of such disclosure controls and procedures
and internal controls, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the
principal executive officers (or their equivalents) and principal
financial officers (or their equivalents) of the Company have made
all certifications required by the Sarbanes-Oxley Act of 2002 (the
“ Sarbanes-Oxley Act ”) and any related
rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and
correct; the Company, the Subsidiaries and the Company’s
directors and officers are each in compliance in all material
respects with all applicable effective provisions of the
Sarbanes-Oxley Act and the rules and regulations of the
Commission and the NASDAQ promulgated thereunder;
14
(gg)
each “forward-looking statement” (within the meaning of
Section 27A of the Act or Section 21E of the Exchange
Act) contained or incorporated by reference in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, has been made or reaffirmed with
a reasonable basis and in good faith;
(hh)
all statistical or market-related data included or incorporated by
reference in the Registration Statement, the Basic Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, are
based on or derived from sources that the Company reasonably
believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to
the extent required;
(ii)
neither the Company nor any of the Subsidiaries nor, to the
Company’s knowledge, any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any
law, rule or regulation (including, without limitation, the
Foreign Corrupt Practices Act of 1977), which payment, receipt or
retention of funds is of a character required to be disclosed in
the Registration Statement, the Basic Prospectus or the
Prospectus;
(jj)
no Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from
repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company, except as described in the Registration
Statement (excluding the exhibits thereto), the Basic Prospectus
and the Prospectus;
(kk)
the preclinical tests and clinical trials that are described in, or
the results of which are referred to in, the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, were and, if still pending, are
being conducted in all material respects in accordance with
standard medical and scientific research procedures and, in the
case of clinical trials, with protocols filed with the appropriate
regulatory authorities for each such trial; each description of the
results of such tests and trials contained in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, is accurate and complete in all
material respects and fairly presents the data derived from such
tests and trials, and the Company and the Subsidiaries have no
knowledge of any other studies or tests the results of which call
into question the results described or referred to in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any; except as
described in the Registration Statement (excluding the exhibits
thereto), the Basic Prospectus and the Prospectus, neither the
Company nor any Subsidiaries has received any notices or other
correspondence from the Food and Drug Administration of the U.S.
Department of Health and Human Services (the “FDA”) or
any committee thereof or from any other U.S. or foreign government
or drug or medical
15
device regulatory
agency (collectively, the “ Regulatory Agencies
”) requiring the termination, suspension or modification of
any clinical trials that are described or referred to in the
Registration Statement, the Basic Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any; and the Company
and the Subsidiaries have each operated and currently are in
compliance in all material respects with all applicable rules,
regulations and policies of the Regulatory Agencies;
(ll)
the issuance and sale of the Shares as contemplated hereby will not
cause any holder of any shares of capital stock, securities
convertible into or exchangeable or exercisable for capital stock
or options, warrants or other rights to purchase capital stock or
any other securities of the Company to have any right to acquire
any shares of preferred stock of the Company;
(mm)
the Company has not received any notice from the NASDAQ regarding
the delisting of the Common Stock from the NASDAQ;
(nn)
the Company is not, and has not been, a “United States real
property holding corporation” within the meaning of
Section 897(c)(2) of the Internal Revenue Code of 1986,
as amended (the “ Code ”), during the applicable
period specified in Section 897(c)(1)(A)(ii) of
Code;
(oo)
except pursuant to this Agreement, neither the Company nor any of
the Subsidiaries has incurred any liability for any finder’s
or broker’s fee or agent’s commission in connection
with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby or by the
Registration Statement;
(pp)
neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons
has taken, directly or indirectly, any action designed, or which
has constituted or might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
and
(qq)
to the Company’s knowledge, there are no affiliations or
associations between (i) any member of FINRA and (ii) the
Company or any of the Company’s officers, directors or 5% or
greater security holders or any beneficial owner of the
Company’s unregistered equity securities that were acquired
at any time on or after the 180th day immediately preceding the
date the Registration Statement was initially filed with the
Commission, except as disclosed in the Registration Statement
(excluding the exhibits thereto), the Basic Prospectus and the
Prospectus.
In addition, any certificate signed
by any officer of the Company or any of the Subsidiaries and
delivered to the Underwriter or counsel for the Underwriter in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered
thereby, to the Underwriter.
4.
Certain Covenants of the Company . The Company hereby
agrees:
16
(a)
to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions
as you may designate and to maintain such qualifications in effect
so long as you may request for the distribution of the Shares;
provided , however , that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Shares for offer or sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose;
(b)
to make available to the Underwriter in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter
from time to time to furnish to the Underwriter, as many copies of
the Prospectus (or of the Prospectus as amended or supplemented if
the Company shall have made any amendments or supplements thereto
after the effective date of the Registration Statement) as the
Underwriter may request for the purposes contemplated by the Act;
in case the Underwriter is required to deliver (whether physically
or through compliance with Rule 172 under the Act or any
similar rule), in connection with the sale of the Shares, a
prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act, or after the time a
post-effective amendment to the Registration Statement is required
pursuant to Item 512(a) of Regulation S-K under the Act, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act or Item
512(a) of Regulation S-K under the Act, as the case may
be;
(c)
if, at the time this Agreement is executed and delivered, it is
necessary or appropriate for a post-effective amendment to the
Registration Statement, or a Registration Statement under
Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Shares may be sold, the
Company will use its best efforts to cause such post-effective
amendment or such Registration Statement to be filed and become
effective, and will pay any applicable fees in accordance with the
Act, as soon as possible; and the Company will advise you promptly
and, if requested by you, will confirm such advice in writing,
(i) when such post-effective amendment or such Registration
Statement has become effective, and (ii) if Rule 430A
under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which
the Company agrees to file in a timely manner in accordance with
such Rules);
(d)
if, at any time during the period when 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, the Registration Statement shall cease to
comply with the requirements of the Act with respect to eligibility
for the use of the form on which the Registration Statement was
filed with the Commission, to (i) promptly notify you,
(ii) promptly file with the Commission a new
registration
17
statement under
the Act, relating to the Shares, or a post-effective amendment to
the Registration Statement, which new registration statement or
post-effective amendment shall comply with the requirements of the
Act and shall be in a form reasonably satisfactory to you,
(iii) use its best efforts to cause such new registration
statement or post-effective amendment to become effective under the
Act as soon as practicable, (iv) promptly notify you of such
effectiveness and (v) take all other action necessary or
appropriate to permit the public offering and sale of the Shares to
continue as contemplated in the Prospectus; all references herein
to the Registration Statement shall be deemed to include each such
new registration statement or post-effective amendment, if
any;
(e)
if the third anniversary of the initial effective date of the
Registration Statement (within the meaning of
Rule 415(a)(5) under the Act) shall occur at any time
during the period when 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, to (i) file with the Commission, prior to
such third anniversary, a new registration statement under the Act
relating to the Shares, which new registration statement shall
comply with the requirements of the Act (including, without
limitation, Rule 415(a)(6) under the Act) and shall be in
a form satisfactory to you; and (ii) use its best efforts to
cause such new registration statement to become effective under the
Act as soon as practicable, but in any event within 180 days after
such third anniversary and promptly notify you of such
effectiveness; the Company shall take all other action necessary or
appropriate to permit the public offering and sale of the Shares to
continue as contemplated in the Prospectus; all references herein
to the Registration Statement shall be deemed to include each such
new registration statement, if any;
(f)
until 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, to advise you promptly,
confirming such advice in writing, of any request by the Commission
for amendments or supplements to the Registration Statement, the
Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop
order, suspending the effe
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