Exhibit 1.1
Execution Copy
ViroPharma
Incorporated
Common Stock, par value $0.002
per share
Underwriting
Agreement
December 6, 2005
Goldman, Sachs & Co.,
Piper Jaffray & Co.,
Lazard Frères & Co.
LLC,
SG Cowen & Co., LLC,
c/o Goldman, Sachs &
Co.,
85 Broad Street,
New York, NY 10004
Ladies and Gentlemen:
From time to time ViroPharma
Incorporated, a Delaware corporation (the “Company”),
proposes to enter into one or more Pricing Agreements (each a
“Pricing Agreement”) in the form of Annex I hereto,
with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement
and the securities specified therein) certain shares of its common
stock, par value $0.002 per share (the “Shares”),
specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the “Firm Shares”). If
specified in such Pricing Agreement, the Company may grant to the
Underwriters the right to purchase at their election an additional
number of shares, specified in such Pricing Agreement as provided
in Section 3 hereof (the “Optional Shares”). The
Firm Shares and the Optional Shares, if any, which the Underwriters
elect to purchase pursuant to Section 3 hereof are herein
collectively called the “Designated Shares”.
The terms and rights of any
particular issuance of Designated Shares shall be as specified in
the Pricing Agreement relating thereto.
1. Particular sales of Designated
Shares may be made from time to time to the Underwriters of such
Shares, for whom the firms designated as representatives of the
Underwriters of such Shares in the Pricing Agreement relating
thereto will act as representatives (the
“Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of
the Company to sell any of the Shares or as an obligation of any of
the Underwriters to purchase any of the Shares. The obligation of
the Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be
evidenced by the Pricing Agreement
with respect to the Designated Shares specified
therein. Each Pricing Agreement shall specify the aggregate number
of the Firm Shares, the maximum number of Optional Shares, if any,
the initial public offering price of such Firm and Optional Shares
or the manner of determining such price, the purchase price to the
Underwriters of such Designated Shares, the names of the
Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters, the number of such Designated
Shares to be purchased by each Underwriter and the commission, if
any, payable to the Underwriters with respect thereto and shall set
forth the date, time and manner of delivery of such Firm and
Optional Shares, if any, and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the
registration statement and prospectus with respect thereto) the
terms of such Designated Shares. A Pricing Agreement shall be in
the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or
any other rapid transmission device designed to produce a written
record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall
be several and not joint.
2. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form
S-3 (File No 333-64482) (the “Initial Registration Statement)
in respect of the Shares has been filed with the Securities and
Exchange Commission (the “Commission”); the Initial
Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in
the prospectus included therein, to the Representatives for each of
the other Underwriters have been declared effective by the
Commission in such form; other than a registration statement, if
any, increasing the size of the offering (a “Rule 462(b)
Registration Statement”), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the “Act”),
which became effective upon filing, no other document with respect
to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed, or transmitted for
filing, with the Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission under
the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or any part thereof or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (the
base prospectus filed as part of the Initial Registration
Statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement
relating to the Shares, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Shares filed
with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits
thereto and including any prospectus supplement relating to the
Shares that is filed with the Commission and deemed by virtue of
Rule 430B under the Act to be part of the Initial Registration
Statement, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 2(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus
relating
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to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 6(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated
therein, in each case after the date of the Basic Prospectus, such
Preliminary Prospectus or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Shares is hereinafter called an
“Issuer Free Writing Prospectus”);
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing hereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not 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, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein.
(c) For the purposes of this
Agreement, the “Applicable Time” is 7:00 pm (Eastern
time) on the date of the Pricing Agreement; the Pricing Prospectus
as of the Applicable Time did not include any untrue statement of a
material fact or omit 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; and each Issuer Free
Writing Prospectus listed on Schedule I(a) hereto does not conflict
with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, did not include any untrue statement of a
material fact or omit 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; provided, however, that
this representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein.
(d) The documents incorporated by
reference in the Pricing Prospectus and Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact
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required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co, expressly for use therein; and no
such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement relating to the
Shares and prior to the execution of this Agreement, except as set
forth on Schedule I(b) hereto;
(e) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Shares through Goldman, Sachs & Co. expressly for use
therein;
(f) The Company has not sustained,
since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus; and, since the respective
dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company, in each case otherwise than
as set forth or contemplated in the Pricing Prospectus;
(g) 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 power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a material adverse effect. VCO Incorporated (the
“Subsidiary”) has no operations and nominal assets and
the Company is in the process of winding down and dissolving the
Subsidiary. The Subsidiary is the only subsidiary of the
Company;
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(h) The Company has an authorized
capitalization as set forth in the Pricing Prospectus, and all of
the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable;
(i) The Shares have been duly and
validly authorized, and, when the Firm Shares are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Shares and, in the case of any Optional
Shares, pursuant to Additional Shares Options (as defined in
Section 3 hereof) with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and fully paid
and non-assessable; the Shares conform to the description thereof
contained in the Registration Statement and the Designated Shares
will conform to the description thereof contained in the
Prospectus;
(j) The issue and sale of the Shares
and the compliance by the Company with all of the provisions of
this Agreement, any Pricing Agreement and each Additional Shares
Option, if any, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
this Agreement or any Pricing Agreement or any Additional Shares
Option, except such as have been, or will have been prior to each
Time of Delivery (as defined in Section 4 hereof), obtained
under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws or by the rules and regulations of the
National Association of Securities Dealers, Inc.
(“NASD”) in connection with the purchase and
distribution of the Shares by the Underwriters;
(k) Other than as set forth in the
Pricing Prospectus, there are no legal or governmental proceedings
pending to which the Company or the Subsidiary is a party or of
which any property of the Company or the Subsidiary is the subject,
which, if determined adversely to the Company or the Subsidiary,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
stockholders’ equity or results of operations of the Company
and the Subsidiary; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) The Company is not (i) in
violation of its Certificate of Incorporation or By-laws or
(ii) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, except for such defaults
that would not, individually or in the aggregate, have a material
adverse effect on the current or future consolidated financial
position, stockholders’ equity or results of operations of
the Company;
(m) The statements set forth in the
Pricing Prospectus under the caption “Description of Common
Stock and Preferred Stock”, insofar as they purport to
constitute a summary of
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the terms of the stock, and under
the caption “Plan of Distribution” and
“Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate and complete descriptions in all material
respects;
(n) The Company is not and, after
giving effect to the offering and sale of the Shares, and the
application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(o) At the earliest time after the
filing of the Initial Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) under the Act) of the Shares, the
Company was not an “ineligible issuer” as defined in
Rule 405 under the Act;
(p) KPMG LLP, who have certified
certain financial statements of the Company and the Subsidiary are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(q) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act) that complies in
all material respects with the requirements of the Exchange Act and
has been designed by the Company’s principal executive
officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. To the Company’s knowledge,
the Company’s internal control over financial reporting is
effective and the Company has no material weaknesses in its
internal control over financial reporting;
(r) Since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting;
(s) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e)
under the Exchange Act) that comply in all material respects with
the applicable requirements of the Exchange Act; such disclosure
controls and procedures have been designed to ensure that material
information relating to the Company and the Subsidiary is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; such
disclosure controls and procedures are effective;
(t) The Company owns, possesses or
has adequate rights to use the Company Intellectual Property (as
defined below). The Company has not received any notice and is not
otherwise aware of any conflict with asserted rights of others with
respect to any Company Intellectual Property or of any facts or
circumstances that would render any Company Intellectual Property
invalid or inadequate to protect the interest of the Company
therein, and which conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a material adverse effect. Except
as disclosed in the Pricing Prospectus or the Prospectus, the
Company is not obligated to pay a royalty, grant a license, or
provide other consideration to any third party in connection with
the
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Company Intellectual Property.
Except as disclosed in the Pricing Prospectus or the Prospectus, to
the Company’s knowledge, the conduct of the business of the
Company in the manner described in the Pricing Prospectus or the
Prospectus does not infringe, interfere or conflict with any
Intellectual Property right of any third party. Except as disclosed
in the Pricing Prospectus or the Prospectus, to the Company’s
knowledge, no third party, including any academic or governmental
organization, possesses or could obtain rights to the Company
Intellectual Property which, if exercised, could enable such party
to develop products competitive to those of the Company.
Intellectual Property means patents, patent rights, patent
applications, licenses, inventions, copyrights, know how (including
trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks,
service marks and trade names. Company Intellectual Property means
Intellectual Property licensed to or held for use by the Company
and necessary or desirable to carry on the business of the Company
as described in the Pricing Prospectus or the
Prospectus;
(u) The Company has used
commercially reasonable efforts to protect and preserve the
confidentiality of all Company Intellectual Property that comprises
trade secrets (“ Confidential Information” ).
The Company has a policy requiring each of its employees and
contractors to execute proprietary information and confidentiality
agreements substantially in the Company’s standard forms and
all current and former employees and contractors of the Company
have executed such agreements. To the best of the Company’s
knowledge, all use, disclosure or appropriation of Confidential
Information owned by the Company by or to a third party has been
pursuant to the terms of a written agreement between Company and
such third party protecting the confidentiality thereof. All use,
disclosure or appropriation by the Company of Confidential
Information not owned by the Company has been pursuant to the terms
of a written agreement between the Company and the owner of such
Confidential Information protecting the confidentiality thereof, or
is otherwise lawful;
(v) The Company and, to the
Company’s knowledge, its licensors have duly and properly
filed or caused to be filed with the PTO and applicable foreign and
international patent authorities all patent applications owned by
the Company (the “Company Patent Applications”). The
Company and, to the Company’s knowledge, its licensors have
complied in all material respects with the PTO’s duty of
candor and disclosure for the Company Patent Applications and have
made no material misrepresentation in the Company Patent
Applications. To the knowledge of the Company, the Company has
complied with the duty of candor and disclosure for the Company
Patent Applications pending in countries outside the United States.
The Company has no knowledge of any information which would
preclude the Company from having clear title to or exclusive use of
the Company Patent Applications;
(w) The human clinical trials,
animal studies and other preclinical tests conducted by the Company
or in which the Company has participated and that relate to
clinical development programs described in the Pricing Prospectus
or the Prospectus or the results of which are referred to in the
Pricing Prospectus or the Prospectus, and such studies and tests
conducted on behalf of the Company or that the Company intends to
rely on in support of regulatory approval by the United States Food
and Drug Administration (the “ FDA ”) or foreign
regulatory agencies, were and, if still pending, are being
conducted in accordance with experimental protocols, procedures and
controls generally used by qualified experts in the preclinical or
clinical study of new drugs or diagnostics as applied to comparable
products to those being
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developed by the Company; the
descriptions of the results of such studies, test and trials
contained in the Pricing Prospectus or the Prospectus are accurate
and complete in all material respects, and except as set forth in
the Pricing Prospectus or the Prospectus, the Company has no
knowledge of any other trials, studies or tests, the results of
which the Company believes reasonably call into question the
clinical trial results described or referred to in the Pricing
Prospectus or the Prospectus when viewed in the context in which
such results are described and the clinical state of development;
and the Company has not received any notices or correspondence from
the FDA or any other domestic or foreign governmental agency
requiring the termination, suspension or modification (other than
such modifications as are normal when performing clinical trials in
support of a regulatory approval, any such modifications which are
material have been disclosed to you) of any animal studies,
preclinical tests or clinical trials conducted by or on behalf of
the Company or in which the Company has participated that are
described in the Pricing Prospectus or the Prospectus or the
results of which are referred to in the Pricing Prospectus or the
Prospectus;
(x) The Company possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the
appropriate federal, state or local regulatory agencies or bodies
necessary to conduct the business of the Company as described in
the Pricing Prospectus or the Prospectus, including without
limitation, all approved New Drug Applications and approved
supplements thereto required by the FDA for marketing of a drug,
Investigational New Drug Applications (“INDs”) required
by the FDA or any other federal or state agencies or bodies engaged
in the regulation of clinical trials of pharmaceuticals, except
where the failure so to possess would not, singly or in the
aggregate, result in a material adverse effect; the Company is in
compliance with the requirements of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, result in a material adverse effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not, singly or in the aggregate, result in a material
adverse effect; and the Company has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a material adverse effect. The Company has not failed to file
with the FDA any IND for a clinical trial it is conducting or
sponsoring; all such filings were in compliance with applicable
laws when filed and no deficiencies have been asserted by the FDA
with respect to any such filings or submissions;
(y) The Company is insured against
such losses and risks and in such amounts which, in the
Company’s reasonable judgment, are prudent and customary in
the business in which they are engaged, including but not limited
to risks relating to the conduct of clinical trials; 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;
(z) Except as would not, singly or
in the aggregate, reasonably be expected to result in a material
adverse effect, (A) neither the Company nor the Subsidiary is
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater,
8
land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) there
are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or the Subsidiary and
(C) there are no events or circumstances that would reasonably
be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or
the Subsidiary relating to Hazardous Materials or any Environmental
Laws;
(aa) The Company has not received
and is not aware of any claims concerning or relating to any
federal or state government funded health care program that
involves, relates to or alleges: (i) any violation of any
applicable rule, regulation, policy or requirement of any such
program or any irregularity with respect to any activity, practice
or policy of the Company; or (ii) any violation of any
applicable rule, regulation, policy or requirement of any such
program or any irregularity with respect to any claim for payment
or reimbursement made by the Company or any payment or
reimbursement paid to the Company. The Company is not currently
subject to any outstanding audit by any such government agency,
intermediary or carrier;
(bb) The Company has not knowingly
or willfully solicited, received, paid or offered to pay any
remuneration, directly or indirectly, overtly or covertly, in cash
or kind for the purpose of making or receiving any referral which
violated, in any material respect, any applicable anti-kickback
law, including without limitation the Federal Health Care Program
Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) (known as
the “Anti-Kickback Statute”), or any applicable state
anti-kickback law; and
(cc) The Company has not knowingly
or willfully submitted any claim for payment to any payment program
in material violation of any laws relating to false claim or fraud,
including without limitation the Federal False Claim Act, 31 U.S.C.
§ 3729, or any applicable state false claim or fraud
law.
3. Upon the execution of the Pricing
Agreement applicable to any Designated Shares and authorization by
the Representatives of the release of the Firm Shares, the several
Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the
Pricing Agreement applicable to any Designated Shares that the
Company thereby grants to the Underwriters the right (an
“Additional Shares Option”) to purchase at their
election up to the number of Optional Shares set forth in such
Pricing Agreement, on the terms set forth in the Prospectus
(provided that the purchase price per Optional Share shall be
reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm
Shares but not payable on the Optional Shares), for the sole
purpose of covering sales of shares in excess of the number of Firm
Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the
Company, given
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within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be
delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless the Representatives and the
Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Shares to be
added to the number of Firm Shares to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement
applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided
that, if the Company has not been so advised, the number of
Optional Shares to be so added shall be, in each case, that
proportion of Optional Shares which the number of Firm Shares to be
purchased by such Underwriter under such Pricing Agreement bears to
the aggregate number of Firm Shares (rounded as the Representatives
may determine to the nearest 100 shares). The total number of
Designated Shares to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate number of Firm
Shares set forth in Schedule I to such Pricing Agreement plus the
aggregate number of Optional Shares which the Underwriters elect to
purchase.
4. Certificates for the Firm Shares
and the Optional Shares to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives
may request upon at least forty-eight hours’ prior notice to
the Company, shall be delivered by or on behalf of the Company to
the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Goldman, Sachs & Co.
at least forty-eight hours in advance as specified in such Pricing
Agreement, (i) with respect to the Firm Shares, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such
time and date being herein called the “First Time of
Delivery” and (ii) with respect to the Optional Shares,
if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives
of the Underwriters’ election to purchase such Optional
Shares, or at such other time and date as the Representatives and
the Company may agree upon in writing, such time and date, if not
the First Time of Delivery, herein called the “Second Time of
Delivery”. Each such time and date for delivery is herein
called a “Time of Delivery”.
5. The Company agrees with each of
the Underwriters of any Designated Shares:
(a) To prepare the Prospectus as
amended and supplemented in relation to the applicable Designated
Shares in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Shares or, if applicable,
such earlier time as may be required under the Act; to make no
further amendment or any supplement to the Registration Statement,
the Basic Prospectus or the Prospectus prior to the Time of
Delivery, which shall be disapproved by the Representatives for
such Shares promptly after reasonable notice thereof; to advise the
Representatives promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or become effective or any amendment or supplement to the
Prospectus has been filed and to furnish the Representatives with
copies thereof; to file promptly all material required to be filed
by the
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Company with the Commission pursuant
to Rule 433(d) under the Act; to file promptly all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required in connection with the offering or sale of the Shares;
to advise the Representatives promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus, the Basic Prospectus, the Pricing Prospectus, or the
Prospectus in respect of the Shares, of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus, the Basic Prospectus, the
Pricing Prospectus or the Prospectus relating to the Shares or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify such Shares for offering and sale under the securities laws
of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Shares, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) If by December 1, 2008 (the
“Renewal Deadline”), any of the Shares remain unsold by
the Underwriters, the Company will file, if it has not already done
so and is eligible to do so, a new shelf registration statement
relating to the Shares, in a form satisfactory to you and will use
its best efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The
Company will take all other action necessary or appropriate to
permit the public offering and sale of the Shares to continue as
contemplated in the expired registration statement relating to the
Shares. References herein to the Registration Statement shall
include such new automatic shelf registration statement or such new
shelf registration statement, as the case may be;
(d) Prior to 10:00 a.m., New York
City time, on the New York Business Day next succeeding the date of
this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York
City in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required at
any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act is delivered, not misleading, or,
if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify
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