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EXHIBIT 1.1
___________ Shares
ASCENT PEDIATRICS, INC.
Common Stock
($.00004 Par Value)
UNDERWRITING AGREEMENT
______ ___, 1997
XXXXX & COMPANY
XXXXX XXXXX XXXXXX & COMPANY LLC
XXXXX, XXXXXXXX & XXXX, INC.
As Representatives of the several Underwriters
x/x Xxxxx & Xxxxxxx
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
1. Introductory. Ascent Pediatrics, Inc., a Delaware corporation (the
"Company"), proposes to sell, pursuant to the terms of this Agreement, to the
several underwriters named in Schedule A hereto (the "Underwriters," or, each,
an "Underwriter"), an aggregate of [ ] shares of Common Stock, $.00004 par value
(the "Common Stock"), of the Company. The aggregate of [ ] shares so proposed to
be sold is hereinafter referred to as the "Firm Stock". The Company also
proposes to sell to the Underwriters, upon the terms and conditions set forth in
Section 3 hereof, up to an additional [ ] shares of Common Stock (the "Optional
Stock"). The Firm Stock and the Optional Stock are hereinafter collectively
referred to as the "Stock". Xxxxx & Company ("Cowen"), Xxxxx Xxxxx Xxxxxx &
Company LLC ("Xxxxx") and Xxxxx, Xxxxxxxx & Xxxx, Inc. ("Xxxxx") are acting as
representatives of the several Underwriters and in such capacity are hereinafter
referred to as the "Representatives".
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-23319)
in the form in which it became or becomes effective and also in such
form as it may be when any post-effective amendment thereto shall
become effective with respect to the Stock, including any preeffective
prospectuses included as part of the registration statement as
originally filed or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), and the
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rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, copies of which
have heretofore been delivered to you, has been prepared by the Company
in conformity in all material respects with the requirements of the
Securities Act and has been filed with the Commission under the
Securities Act; one or more amendments to such registration statement,
including in each case an amended preeffective prospectus, copies of
which amendments have heretofore been delivered to you, have been so
prepared and filed. If it is contemplated, at the time this Agreement
is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the
offering of the Stock may commence, the term "Registration Statement"
as used in this Agreement means the registration statement as amended
by said post-effective amendment. The term "Registration Statement" as
used in this Agreement shall also include any registration statement
relating to the Stock that is filed and declared effective pursuant to
Rule 462(b) under the Securities Act. The term "Prospectus" as used in
this Agreement means the prospectus in the form included in the
Registration Statement, or, (A) if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under
the Securities Act and such information is included in a prospectus
filed with the Commission pursuant to Rule 424(b) under the Securities
Act, the term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement as
supplemented by the addition of the Rule 430A information contained in
the prospectus filed with the Commission pursuant to Rule 424(b) and
(B) if prospectuses that meet the requirements of Section 10(a) of the
Securities Act are delivered pursuant to Rule 434 under the Securities
Act, then (i) the term "Prospectus" as used in this Agreement means the
"prospectus subject to completion" (as such term is defined in Rule
434(g) under the Securities Act) as supplemented by (a) the addition of
Rule 430A information or other information contained in the form of
prospectus delivered pursuant to Rule 434(b)(2) under the Securities
Act or (b) the information contained in the term sheets described in
Rule 434(b)(3) under the Securities Act, and (ii) the date of such
prospectuses shall be deemed to be the date of the term sheets. The
term "Preeffective Prospectus" as used in this Agreement means the
prospectus subject to completion in the form included in the
Registration Statement at the time of the initial filing of the
Registration Statement with the Commission, and as such prospectus
shall have been amended from time to time prior to the date of the
Prospectus.
(b) The Commission has not issued or threatened to issue any
order preventing or suspending the use of any Preeffective Prospectus,
and, at its date of issue, each Preeffective Prospectus conformed in
all material respects with the requirements of the Securities Act and
did not include any 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 light of the circumstances under which
they were made, not misleading; and, when the Registration Statement
became or becomes effective and at all times subsequent thereto up to
and including each of the Closing Dates (as defined herein), the
Registration Statement and the Prospectus and any amendments or
supplements thereto contained and will contain all material statements
and information required to be included therein by the Securities Act
and conformed and will conform in all
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material respects to the requirements of the Securities Act, and
neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, included or will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations,
warranties and agreements shall not apply to information contained in
or omitted from any Preeffective Prospectus or the Registration
Statement or the Prospectus or any such amendment or supplement thereto
in reliance upon, and in conformity with, written information relating
to any Underwriter or to the distribution furnished to the Company by
or on behalf of any Underwriter, directly or through you, specifically
for use in the preparation thereof; there is no franchise, lease,
contract, agreement or document required to be described in the
Registration Statement or Prospectus or to be filed as an exhibit to
the Registration Statement which is not described therein or filed as
required; and all descriptions of any such franchises, leases,
contracts, agreements or documents contained in the Registration
Statement are accurate and complete descriptions of such documents in
all material respects.
(c) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
set forth or contemplated in the Prospectus, (i) the Company has not
incurred any material liabilities or obligations, direct or contingent,
nor entered into any material transactions not in the ordinary course
of business, and (ii) except for the incurrence of continued losses
from operations in the ordinary course of business, there has not been
any material adverse change in the condition (financial or otherwise),
properties, business, prospects, net worth or results of operations of
the Company, or any change in the capital stock (other than as the
result of stock option or warrant exercises permitted under Section
4(k), short-term or long-term debt of the Company.
(d) The financial statements, together with the related notes
thereto set forth in the Prospectus, fairly present, on the basis
stated in the Registration Statement, the financial position and the
results of operations and changes in financial position of the Company
at the respective dates or for the respective periods therein
specified. Such statements and related notes thereto have been prepared
in accordance with generally accepted accounting principles applied on
a consistent basis except as may be set forth in the Prospectus. The
selected financial data set forth in the Prospectus under the caption
"Summary Financial Data" fairly present, on the basis stated in the
Registration Statement, the information set forth therein.
(e) Coopers and Xxxxxxx LLP, who have expressed their opinions
on the audited financial statements and related schedules included in
the Registration Statement and the Prospectus, are independent public
accountants within the meaning of the Securities Act and the Rules and
Regulations.
(f) The Company has been duly organized and is validly
existing and in good standing as a corporation under the laws of
Delaware, with corporate power and authority to own or lease its
properties and to conduct its business as described in the
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Prospectus; the Company is in possession of and operating in compliance
with all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates, orders, approvals, registrations and
qualifications required to own, lease and operate its properties and
for the conduct of its business as now being conducted and as described
in the Registration Statement and the Prospectus, except to the extent
that the failure to be in possession of or operate in compliance with
any such franchises, grants, authorizataions, licenses, permits,
easements, consents, certificates, orders, approvals, registrations or
qualifications would not have a material adverse effect on the
condition (financial or otherwise), properties, business, prospects,
net worth or results of operations of the Company; and no such
franchise, grant, authorization, license, permit, easement, consent,
certificate, order, approval, registration or qualification contains a
materially burdensome restriction not adequately disclosed in the
Registration Statement and the Prospectus, all of which are valid and
in full force and effect in all material respects, except where the
failure to be in possession of or operate in compliance with such
franchises, grants, authorizations, licenses, permits, easements,
consents, certificates, orders, approvals, registrations and
qualifications would not have a material adverse effect on the
condition (financial or otherwise), properties, business, prospects,
net worth or results of operations of the Company; and the Company is
duly qualified or registered to do business and in good standing as a
foreign corporation in all other jurisdictions where its ownership or
leasing of properties or the conduct of its business requires such
qualification or registration. The Company has made all necessary
filings required under any federal, state or foreign law, rule or
regulation necessary to own or lease its properties and assets and to
conduct its business, except where the failure to so file or obtain
such franchises, grants, authorizations, licenses, permits, easements,
consents, certificates, orders, approvals, registrations or
qualifications would not have a material adverse effect on the
condition (financial or otherwise), properties, business, prospects,
net worth or results of operations of the Company. The Company has not
received any notice of proceedings relating to the revocation,
cancellation or modification of any such franchise, grant,
authorization, license, permit, easement, consent, certificate, order,
approval, registration or qualification which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling, finding
or cancellation, would have a material adverse effect on the business
or financial condition of the Company, taken as a whole.
(g) The Company has no subsidiaries. The Company does not,
directly or indirectly, control any other corporation, association or
entity.
(h) The Company's authorized and outstanding capital stock is
on the date hereof, and, other than as a result of changes caused by
warrant or option exercises permitted under Section 4(k), will be on
the applicable Closing Date, as set forth under the heading
"Capitalization" in the Prospectus; the outstanding shares of common
stock of the Company conform to the description thereof in the
Prospectus and have been duly authorized and validly issued and are
fully paid and nonassessable and have been issued in compliance with
all federal and state securities laws and were not issued in violation
of, and are not subject to, any preemptive rights or similar rights to
subscribe
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for or purchase securities. Except as disclosed in and or contemplated
by the Prospectus and the financial statements of the Company and
related notes thereto included in the Prospectus, the Company does not
have outstanding any options or warrants to purchase, or any preemptive
rights or other rights to subscribe for or to purchase any securities
or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations, except for options granted
subsequent to the date of information provided in the Prospectus
pursuant to the Company's employee and stock option and equity plans as
disclosed in the Prospectus. The description of the Company's stock
option and other stock plans or arrangements, and the options or other
rights granted or exercised thereunder, as set forth in the Prospectus,
accurately presents in all material respects the information required
to be shown with respect to such plans, arrangements, options and
rights.
(i) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and nonassessable and free of
any preemptive or similar rights and will conform to the description
thereof in the Prospectus.
(j) Except as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company is a party or
of which any property of the Company is subject, which, if determined
adversely to the Company, might individually or in the aggregate (i)
prevent or adversely affect the transactions contemplated by this
Agreement, (ii) suspend the effectiveness of the Registration
Statement, (iii) prevent or suspend the use of the Preeffective
Prospectus in any jurisdiction or (iv) result in a material adverse
change in the condition (financial or otherwise), properties, business,
prospects, net worth or results of operations of the Company; and to
the best of the Company's knowledge no such proceedings are threatened
or contemplated against the Company by governmental authorities or
others. The Company is not a party nor subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory body or
other governmental agency or body required to be described in the
Prospectus that is not so described therein. The Company is not a party
to any litigation required to be described in the Prospectus that is
not so described therein.
(k) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated will not
(with or without notice or lapse of time) 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, note agreement or other
agreement or instrument to which the Company is a party or by which it
or any of its properties is or may be bound, except where the breach or
violation of, or default under any such agreements would not have a
material adverse effect on the condition (financial or otherwise),
properties, business, prospects, net worth or results of operations of
the Company; or the Certificate of Incorporation, By-laws or other
organizational documents of the Company, or any law, order, rule or
regulation of any
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court or governmental agency or body having jurisdiction over the
Company or any of its properties or will result in the creation of a
lien.
(l) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such
as may be required by the National Association of Securities Dealers,
Inc. (the "NASD") or under the Securities Act or the securities or
"Blue Sky" laws of any jurisdiction in connection with the purchase and
distribution of the Stock by the Underwriters.
(m) The Company has the full corporate power and authority to
enter into this Agreement and to perform its obligations hereunder
(including to issue, sell and deliver the Stock), and this Agreement
has been duly and validly authorized, executed and delivered by the
Company and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or the public policy
underlying such laws and except for the effect of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating
to or affecting the rights of creditors generally.
(n) The Company is in all respects in compliance with, and
conducts its business in conformity with, all applicable federal,
state, local and foreign laws, rules and regulations or any court or
governmental agency or body including, without limitation, those of the
FDA, except to the extent that the failure to comply with or conduct
its business in conformity with such laws, rules or regulations would
not have a material adverse effect on the condition (financial or
otherwise), properties, business, prospects, net worth or results of
operation of the Company; otherwise than as set forth in the
Registration Statement and the Prospectus, to the knowledge of the
Company no prospective change in any of such federal or state laws,
rules or regulations has been adopted which, when made effective, would
have a material adverse effect on the operations of the Company. Except
as disclosed in the Registration Statement, the Company is in
compliance with all applicable existing federal, state, local and
foreign laws and regulations relating to the protection of human health
or the environment or imposing liability or requiring standards of
conduct concerning any Hazardous Materials ("Environmental Laws"),
except where the failure to so comply would not have a material adverse
effect on the financial condition, properties, business, or operations
of the Company. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act, as
amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl and (v) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law.
(o) The Company has filed all necessary federal, state, local
and foreign income, payroll, franchise and other tax returns and has
paid all taxes shown as due
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thereon or with respect to any of its properties, except to the extent
that the failure to so file or pay would not have a material adverse
effect on the condition (financial or otherwise), business, prospects,
net worth or results of operations of the Company; and there is no tax
deficiency that has been, or to the knowledge of the Company is likely
to be, asserted against the Company or any of its properties or assets
that would materially adversely affect the financial condition,
business or operations of the Company.
(p) No person or entity has the right to require registration
of shares of Common Stock or other securities of the Company because of
the filing or effectiveness of the Registration Statement, except for
persons and entities who have expressly waived such right.
(q) Neither the Company nor any of its officers or directors
has taken or, during the 180 days following the effective date of the
Registration Statement, will take, directly or indirectly, any action
designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might
in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the
Company.
(r) The Company has provided you with all financial statements
since December 31, 1996 through the date hereof that are available to
the officers of the Company.
(s) Except as otherwise described in the Prospectus, the
Company owns or possesses (under licenses, supply arrangements or
otherwise) all patents, trademarks, trademark registrations, service
marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as
being owned or possessed by it or necessary for the conduct of its
business, as now conducted or hereinafter proposed to be conducted as
described in the Prospectus, except to the extent that the failure to
so own or possess would not have a material adverse effect on the
condition (financial or otherwise), properties, business, prospects,
net worth or results of operations of the Company, and the Company is
not aware of any claim to the contrary or any challenge by any other
person to the rights of the Company with respect to the foregoing. To
the Company's knowledge, its business as now conducted and as proposed
to be conducted does not and will not infringe or conflict with in any
material respect patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other intellectual property or
franchise right of any other person or entity. Except as described in
the Prospectus, no claim has been made against the Company alleging the
infringement by the Company of any patent, trademark, service xxxx,
trade name, copyright, trade secret, license in or other intellectual
property right or franchise right of any person or entity. The Company
has duly and properly filed or caused to be filed with the United
States Patent and Trademark Office all United States patent
applications described or referred to in the Prospectus. Except as
otherwise described in the Prospectus, to the knowledge of the
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Company, the Company has clear title to its patents and patent
applications referred to in the Prospectus.
(t) The Company has performed all material obligations
required to be performed by it under all contracts required by Item
601(b)(10) of Regulation S-K under the Securities Act to be filed as
exhibits to the Registration Statement, and neither the Company nor, to
the knowledge of the Company, any other party to such contract is in
default under or in breach of any such obligations, and to the
Company's knowledge, no event has occurred or circumstance exists, that
might (with or without notice or lapse of time) result in any such
default or breach, except to the extent that such failure to perform,
default or breach would not have a material adverse effect on the
condition (financial or otherwise), properties, business, prospects,
net worth or results of operations of the Company. The Company has not
received any notice of such default or breach.
(u) The Company is not involved in any labor dispute nor, to
the Company's knowledge, is any such dispute threatened, except to the
extent that such involvement in or threat of a labor dispute would not
have a material adverse effect on the condition (financial or
otherwise), business, prospects, net worth or results of operations of
the Company. The Company is not aware that (A) any executive officer,
key employee or significant group of employees of the Company plans to
terminate employment with the Company or (B) any such executive or key
employee is subject to any noncompete, nondisclosure, confidentiality,
employment, consulting or similar agreement that would be violated by
the present or proposed business activities of the Company. The Company
has not and does not expect to have any liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company makes or ever has made
a contribution and in which any employee of the Company is or has ever
been a participant. With respect to such plans, the Company is in
compliance in all material respects with all applicable provisions of
ERISA.
(v) The Company has obtained the written agreement described
in Section 8(k) of this Agreement from each of its officers, directors
and holders of Common Stock (including, for the purposes hereof, any
securities convertible into shares of Common Stock) listed on Schedule
B hereto.
(w) The Company does not own any real property or any interest
in any real property except for the leasehold described under the
caption "Facilities" in the Prospectus. Such leasehold is, and will be
as of the Closing Dates, a valid, subsisting and enforceable lease. The
Company has good title to all personal property owned by it which is
material to the business of the Company. Such leasehold and such
personal property are free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as would
not have a material adverse effect on the Company.
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(x) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in light of its size and the business in which it is engaged
or proposes to engage after giving effect to the transactions described
in the Prospectus; and the Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the Company.
(y) Except as contemplated by this Agreement, there is no
broker, finder or other party that is entitled to receive from the
Company any brokerage or finder's fee or other fee or commission as a
result of the transactions contemplated by this Agreement.
(z) The Company has complied with all provisions of Section
517.075 Florida Statutes (Chapter 92-198; Laws of Florida).
(aa) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with 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.
(bb) To the Company's knowledge, neither the Company nor any
employee or agent of the Company has made any payment of funds of the
Company or received or retained any funds in violation of any law, rule
or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(cc) The Company has listed, subject to official notice of
issuance, on the Nasdaq National Market, the Stock to be issued and
sold by the Company.
(dd) The Company is not 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.
(ee) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company as to the
matters covered thereby.
3. Purchase by, and Sale and Delivery to, Underwriters--Closing Dates.
The Company agrees to sell to the Underwriters the Firm Stock, and on the basis
of the
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representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase the Firm Stock from the Company, the
number of shares of Firm Stock to be purchased by each Underwriter being set
opposite its name in Schedule A, subject to adjustment in accordance with
Section 12 hereof.
The purchase price per share to be paid by the Underwriters to the
Company will be $_____ per share (the "Purchase Price").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, Boston Time, on the second full business day preceding the First
Closing Date (as defined below) or, if no such direction is received, in the
names of the respective Underwriters or in such other names as Cowen may
designate (solely for the purpose of administrative convenience) and in such
denominations as Cowen may determine against payment of the aggregate Purchase
Price therefor by electronic wire transfer in same day funds, all at the offices
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000. The time and date of the delivery and closing shall be at
10:00 A.M., Boston Time, on _______________ 1997, in accordance with Rule 15c6-1
of the Exchange Act. The time and date of such payment and delivery are herein
referred to as the "First Closing Date". The First Closing Date and the location
of delivery of, and the form of payment for, the Firm Stock may be varied by
agreement between the Company and Cowen. The Closing Date may be postponed
pursuant to the provisions of Section 12 hereof.
The Company shall make the certificates for the Firm Stock available to
the Representatives for examination on behalf of the Underwriters not later than
10:00 A.M., Boston Time, on the business day preceding the First Closing Date at
the offices of Xxxxx & Company, Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
It is understood that Cowen, Xxxxx or Xxxxx, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter or Underwriters, for
the Stock to be purchased by such Underwriter or Underwriters. Any such payment
by Cowen, Xxxxx or Xxxxx shall not relieve such Underwriter or Underwriters from
any of its or their other obligations hereunder.
The several Underwriters agree to make an initial public offering of
the Firm Stock at the initial public offering price as soon after the
effectiveness of the Registration Statement as in their judgment is advisable.
The Representatives shall promptly advise the Company of the making of the
initial public offering.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Company hereby grants to the Underwriters an option to purchase, severally and
not jointly, up to __________ additional shares of Common Stock. The price per
share to be paid for the Optional Stock shall be the Purchase Price. The option
granted hereby may be exercised as to all or any part of the
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Optional Stock at any time, and from time to time not more than thirty (30) days
subsequent to the effective date of this Agreement. No Optional Stock shall be
sold and delivered unless the Firm Stock previously has been, or simultaneously
is, sold and delivered. The right to purchase the Optional Stock or any portion
thereof may be surrendered and terminated at any time upon notice by the
Underwriters to the Company.
The option granted hereby may be exercised by the Underwriters by
giving written notice from Cowen to the Company setting forth the number of
shares of the Optional Stock to be purchased by them and the date and time for
delivery of and payment for the Optional Stock. Each date and time for delivery
of and payment for the Optional Stock (which may be the First Closing Date, but
not earlier) is herein called the "Option Closing Date" and shall in no event be
earlier than two (2) business days nor later than ten (10) business days after
written notice is given. (The Option Closing Date and the First Closing Date are
herein called the "Closing Dates".) The Optional Stock shall be purchased for
the account of each Underwriter in the same proportion as the number of shares
of Firm Stock set forth opposite such Underwriter's name in Schedule A hereto
bears to the total number of shares of Firm Stock (subject to adjustment by the
Underwriters to eliminate odd lots). Upon exercise of the option by the
Underwriters, the Company agrees to sell to the Underwriters the number of
shares of Optional Stock set forth in the written notice of exercise and the
Underwriters agree, severally and not jointly and subject to the terms and
conditions herein set forth, to purchase the number of such shares determined as
aforesaid.
The Company will deliver the Optional Stock to the Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Representatives may direct by notice in writing to the Company given at
or prior to 12:00 Noon, Boston Time, on the second full business day preceding
the Option Closing Date or, if no such direction is received, in the names of
the respective Underwriters or in such other names as Cowen may designate
(solely for the purpose of administrative convenience) and in such denominations
as Cowen may determine against payment of the aggregate Purchase Price therefor
by electronic wire transfer in same day funds, all at the offices of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. The Company shall make the certificates for the Optional
Stock available to the Underwriters for examination not later than 10:00 A.M.,
Boston Time, on the business day preceding the Option Closing Date at the
offices of Xxxxx & Company, Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
Option Closing Date and the location of delivery of, and the form of payment
for, the Optional Stock may be varied by agreement between the Company and
Cowen. The Option Closing Date may be postponed pursuant to the provisions of
Section 12 hereof.
4. Covenants and Agreements of the Company. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will (i) if the Company and the
Representatives have determined not to proceed pursuant to Rule 430A,
use its best efforts to cause the Registration Statement to become
effective, (ii) if the Company and the Representatives have determined
to proceed pursuant to Rule 430A, use its best efforts to comply with
the provisions of and make all requisite filings with the Commission
pursuant to Rule
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430A and Rule 424 of the Rules and Regulations and (iii) if the Company
and the Representatives have determined to deliver Prospectuses
pursuant to Rule 434 of the Rules and Regulations, to use its best
efforts to comply with all the applicable provisions thereof. The
Company will advise the Representatives promptly as to the time at
which the Registration Statement becomes effective, will advise the
Representatives promptly of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
the institution of any proceedings for that purpose, and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting thereof, if issued. The Company
will advise the Representatives promptly of the receipt of any comments
of the Commission or any request by the Commission for any amendment of
or supplement to the Registration Statement or the Prospectus or for
additional information and will not at any time file any amendment to
the Registration Statement or supplement to the Prospectus which shall
not previously have been submitted to the Representatives a reasonable
time prior to the proposed filing thereof or to which the
Representatives shall reasonably object prior to the proposed filing in
writing or which is not in compliance with the Securities Act and the
Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any amendments or
supplements to the Registration Statement or the Prospectus which in
the reasonable opinion of the Representatives may be necessary to
enable the several Underwriters to continue the distribution of the
Stock as contemplated hereby and which complies with the Securities Act
and the Rules and Regulations and will use its best efforts to cause
the same to become effective as promptly as possible.
(c) If at any time after the effective date of the
Registration Statement when a prospectus relating to the Stock is
required to be delivered under the Securities Act any event relating to
or affecting the Company occurs as a result of which the Prospectus or
any other prospectus as then in effect would include an untrue
statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at
any time to amend the Prospectus to comply with the Securities Act, the
Company will promptly notify the Representatives thereof and will
prepare an amended or supplemented prospectus which will correct such
statement or omission; and in case any Underwriter is required to
deliver a prospectus relating to the Stock nine (9) months or more
after the effective date of the Registration Statement, the Company
upon the request of the Representatives and at the expense of such
Underwriter will prepare promptly such prospectus or prospectuses as
may be necessary to permit compliance with the requirements of Section
10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or
before the Closing Dates, signed copies of the Registration Statement,
as originally filed with the Commission, and all amendments thereto
including all financial statements and exhibits thereto, and will
deliver to the Representatives such number of copies of the
Registration Statement, including such financial statements but without
exhibits, and all
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amendments thereto, as the Representatives may reasonably request. The
Company will deliver or mail to or upon the order of the
Representatives, from time to time until the effective date of the
Registration Statement, as many copies of the Preeffective Prospectus
as the Representatives may reasonably request. The Company will deliver
or mail to or upon the order of the Representatives on the date of the
initial public offering, and thereafter from time to time during the
period when delivery of a prospectus relating to the Stock is required
under the Securities Act, as many copies of the Prospectus, in final
form or as thereafter amended or supplemented as the Representatives
may reasonably request; provided, however, that the expense of the
preparation and delivery of any prospectus required for use nine (9)
months or more after the effective date of the Registration Statement
shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its
stockholders as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which the effective date of the
Registration Statement occurs (or 90 days if such 12-month period
coincides with the Company's fiscal year), an earnings statement (which
need not be audited) of the Company, covering such 12-month period
which shall satisfy the provisions of Section 11(a) of the Securities
Act or Rule 158 under the Securities Act.
(f) The Company will cooperate with the Representatives to
enable the Stock to be registered or qualified for offering and sale by
the Underwriters and by dealers under the securities laws of such
jurisdictions as the Representatives may designate and at the request
of the Representatives will make such applications and furnish such
consents to service of process or other documents as may be required of
it as the issuer of the Stock for that purpose; provided, however, that
the Company shall not be required to qualify to do business or to file
a general consent (other than that arising out of the offering or sale
of the Stock) to service of process in any such jurisdiction where it
is not now so subject. The Company will, from time to time, prepare and
file such statements and reports as are or may be required of it as the
issuer of the Stock to continue such qualifications in effect for so
long a period as the Representatives may reasonably request for the
distribution of the Stock. The Company will advise the Representatives
promptly after the Company becomes aware of the suspension of the
qualifications or registration of (or any such exception relating to)
the Common Stock of the Company for offering, sale or trading in any
jurisdiction or of any initiation or threat of any proceeding for any
such purpose, and in the event of the issuance of any orders suspending
such qualifications, registration or exception, the Company will, with
the cooperation of the Representatives, use its best efforts to obtain
the withdrawal thereof.
(g) The Company will furnish to its stockholders annual
reports containing financial statements certified by independent public
accountants and with quarterly summary financial information in
reasonable detail which may be unaudited for so long as the Company has
securities registered under the Securities Exchange Act of 1934, as
amended. During the period of five (5) years from the date hereof, the
Company will
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deliver to the Representatives and, upon request, to each of the other
Underwriters, as soon as they are available, copies of each annual
report of the Company and each other report furnished by the Company to
its stockholders and will deliver to the Representatives, (i) as soon
as they are available, copies of any other reports (financial or other)
which the Company shall publish or otherwise make available to any of
its stockholders as such, (ii) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange and (iii) from time to
time such other information concerning the Company as you may
reasonably request.
(h) The Company will use its best efforts to receive an
official notice of issuance, on the Nasdaq National Market, for the
Stock to be issued and sold by the Company and will use its best
efforts to maintain such listing for a period of five (5) years after
the effective date of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar
for its Common Stock.
(j) For a period of 24 months after the effective date of the
Registration Statement, prior to filing its quarterly reports on Form
10-Q, the Company will have its independent auditors perform a limited
quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer,
encumber, contract to sell, grant an option to purchase or otherwise
dispose of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock during the 180 days
following the effective date of the Registration Statement (the
"Lock-up Period"), other than (i) the Company's sale of Common Stock
hereunder, (ii) the Company's issuance of Common Stock upon the
exercise or conversion of convertible securities, warrants and stock
options which are outstanding on the date hereof and described in the
Prospectus, (iii) the issuance by the Company of options to purchase
shares of Common Stock pursuant to employee and director stock plans
described in the Prospectus, (iv) with the prior written consent of
Cowen, the issuance by the Company of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock in
connection with the execution and delivery of any research and
development, licensing, distribution or other similar arrangement, and
(v) with the prior written consent of Cowen, the issuance by the
Company of Common Stock or securities convertible into or exercisable
or exchangeable for Common Stock pursuant to an acquisition by the
Company, provided, however, in the case of issuances by the Company
pursuant to clauses (iv) or (v) above, the holder of such securities
executes and delivers to Cowen a letter in the form of Exhibit IV
covering subsequent transfers by such holder during the Lock-Up Period.
(l) The Company will apply the net proceeds from the sale of
the Stock as set forth in the description under "Use of Proceeds" in
the Prospectus.
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(m) The Company will supply you with copies of all
correspondence to and from, and all documents issued to and by (i) the
Commission in connection with the registration of the Stock under the
Securities Act, and (ii) the Nasdaq National Market, in connection with
the listing of the Stock on the Nasdaq National Market.
(n) Prior to the Closing Dates the Company will furnish to
you, as soon as they have been prepared, copies of any unaudited
interim financial statements of the Company for any periods subsequent
to the periods covered by the financial statements appearing in the
Registration Statement and the Prospectus.
(o) Prior to the Closing Dates the Company will issue no press
release or other communications directly or indirectly and hold no
press conference with respect to the Company, the financial condition,
results of operation, business, prospects, assets or liabilities of the
Company, or the offering of the Stock, without your prior written
consent. For a period of twelve (12) months following the Closing Date,
the Company will use its best efforts to provide to you copies of each
press release or other public communications with respect to the
financial condition, results of operations, business, prospects, assets
or liabilities of the Company contemporaneously with the public
issuance thereof.
5. Payment of Expenses. The Company will pay (directly or by
reimbursement) all costs, fees and expenses incurred in connection with expenses
incident to the performance of its obligations under this Agreement and in
connection with the transactions contemplated hereby, including but not limited
to (i) all expenses and taxes incident to the issuance and delivery of the Stock
to the Representatives; (ii) all expenses incident to the registration of the
Stock under the Securities Act; (iii) the costs of preparing stock certificates
(including printing and engraving costs); (iv) all fees and expenses of the
registrar and transfer agent of the Stock; (v) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Stock to the
Underwriters; (vi) fees and expenses of the Company's counsel and the Company's
independent accountants; (vii) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution of the
Registration Statement, each Preeffective Prospectus and the Prospectus
(including all exhibits and financial statements) and all amendments and
supplements provided for herein, the Blue Sky Memoranda and this Agreement;
(viii) all filing fees, attorneys' fees and expenses incurred by the Company or
the Underwriters in connection with exemptions from the qualifying or
registering (or obtaining qualification or registration of) all or any part of
the Stock for offer and sale and determination of its eligibility for investment
under the Blue Sky or other securities laws of such jurisdictions as the
Representatives may designate; (ix) all fees and expenses paid or incurred in
connection with filings made with the NASD; and (x) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of the Securities Act and the
respective officers, directors, partners, employees, representatives and agents
of each of such Underwriter (collectively, the
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"Underwriter Indemnified Parties" and, each, an "Underwriter Indemnified
Party"), against any losses, claims, damages, liabilities or expenses
(including, unless the Company elects to assume the defense, the reasonable cost
of investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, which may be based upon the
Securities Act, or any other statute or at common law, on the ground or alleged
ground that any Preeffective Prospectus, the Registration Statement or the
Prospectus (or any Preeffective Prospectus, the Registration Statement or the
Prospectus as from time to time amended or supplemented) includes or allegedly
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company by any
Underwriter, directly or through the Representatives, specifically for use in
the preparation thereof; provided, however, that the indemnity agreement
contained in this Section 6(a) with respect to any Preeffective Prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages, liabilities or expenses purchased the Stock which
is the subject thereof (or the benefit of any person controlling such
Underwriter), if at or prior to the written confirmation of the sale of such
Stock a copy of the Prospectus (as from time to time amended and supplemented)
was not sent or delivered to such person and the untrue statement or omission of
a material fact contained in such Preeffective Prospectus was corrected in the
Prospectus (as from time to time amended and supplemented) unless such failure
is the result of noncompliance by the Company with Sections 4(c) or 4(d) hereof;
and provided, further, that in no case is the Company to be liable with respect
to any claims made against any Underwriter Indemnified Party against whom the
action is brought unless such Underwriter Indemnified Party shall have notified
the Company in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon the Underwriter Indemnified Party, but failure to notify such
Company Indemnified Party of such claim shall not relieve it from any liability
which it may have to any Underwriter Indemnified Party otherwise than on account
of its indemnity agreement contained in this paragraph. The Company will be
entitled to participate at its own expense in the defense or, if it so elects,
to assume the defense of any suit brought to enforce any such liability, but if
the Company elects to assume the defense, such defense shall be conducted by
counsel chosen by it. In the event the Company elects to assume the defense of
any such suit and retain such counsel, any of the Underwriter Indemnified
Parties, defendant or defendants in the suit, may retain additional counsel but
shall bear the fees and expenses of such counsel unless (i) the Company shall
have specifically authorized the retaining of such counsel or (ii) the
Underwriter Indemnified Parties have reasonably determined that there may be a
conflict between the positions of the Company and of the Underwriter Indemnified
Parties in conducting the defense of such action, suit, investigation, inquiry
or proceedings, in which case counsel for the Underwriter Indemnified Parties
shall be entitled to conduct the defense at the expense of the Company to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the Underwriter Indemnified Parties, and the Company may
participate in such defense to the extent that such defense is not being
conducted by such counsel. It is agreed, however, that the Company shall not, in
connection with any suit or proceeding in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (except for any firm
responsible for overall coordination of the matter or
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matters). The Company shall not be liable for the settlement of any claim or
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff for which the Company is
liable to provide indemnification as set forth in this Section 6, the Company
shall indemnify the Underwriter Indemnified Parties from and against any loss or
liability by reason of such settlement or judgment. This indemnity agreement is
not exclusive and will be in addition to any liability which the Company might
otherwise have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each Underwriter Indemnified Party.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively, the "Company
Indemnified Parties") against any losses, claims, damages, liabilities or
expenses (including, unless the Underwriter or Underwriters elect to assume the
defense, the reasonable cost of investigating and defending against any claims
therefor and counsel fees incurred in connection therewith), joint or several,
which arise out of or are based in whole or in part upon the Securities Act, the
Exchange Act or any other federal, state, local or foreign statute or
regulation, or at common law, on the ground or alleged ground that any
Preeffective Prospectus, the Registration Statement or the Prospectus (or any
Preeffective Prospectus, the Registration Statement or the Prospectus, as from
time to time amended and supplemented) includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading, but only insofar as any such statement
or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by such Underwriter, directly or through
the Representatives, specifically for use in the preparation thereof; provided,
however, that in no case is such Underwriter to be liable with respect to any
claims made against any Company Indemnified Party against whom the action is
brought unless such Company Indemnified Party shall have notified such
Underwriter in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon the Company Indemnified Party, but failure to notify such
Underwriter of such claim shall not relieve it from any liability which it may
have to any Company Indemnified Party otherwise than on account of its indemnity
agreement contained in this paragraph. Such Underwriter shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but, if such
Underwriter elects to assume the defense, such defense shall be conducted by
counsel chosen by it. In the event that any Underwriter elects to assume the
defense of any such suit and retain such counsel, the Company Indemnified
Parties and any other Underwriter or Underwriters or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them, respectively, unless the Company
Indemnified Party has reasonably determined that there may be a conflict between
the positions of the Underwriter Indemnified Parties and the Company Indemnified
Party in conducting the defense of such action, suit, investigation, inquiry or
proceedings, in which case counsel for the Company Indemnified Party shall be
entitled to conduct the defense at the expense of the Underwriter to the extent
reasonably determined by such counsel to be necessary to protect the interests
of the Company Indemnified Party, and the Underwriter may participate in such
defense to the extent
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that such defense is not being conducted by such counsel. The Underwriter
against whom indemnity may be sought shall not be liable to indemnify any person
for any settlement of any such claim effected without such Underwriter's
consent. This indemnity agreement is not exclusive and will be in addition to
any liability which such Underwriter might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in equity to
any Company Indemnified Party.
(c) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to herein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Stock. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, defending, settling or compromising any
such claim. Notwithstanding the provisions of this subsection (c), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the shares of the Stock underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Underwriters' obligations to contribute are several in proportion to their
respective underwriting obligations and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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7. Survival of Indemnities, Representations, Warranties, etc. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and shall survive delivery of and payment for the Stock.
8. Conditions of Underwriters' Obligations. The respective obligations
of the several Underwriters hereunder at each Closing Date shall be subject to
the accuracy, at and (except as otherwise stated herein) as of the date hereof
and at and as of such Closing Date, of the representations and warranties made
herein by the Company, to compliance at and as of such Closing Date by the
Company with its covenants and agreements herein contained and other provisions
hereof to be satisfied at or prior to such Closing Date, and to the following
additional conditions:
(a) The Registration Statement shall have become effective and
no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated
or, to the knowledge of the Company or the Representatives, shall be
threatened by the Commission, and any request for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Representatives.
Any filings of the Prospectus, or any supplement thereto, required
pursuant to Rule 424(b) or Rule 434 of the Rules and Regulations, shall
have been made in the manner and within the time periods required by
Rule 424 (b) and Rule 434 of the Rules and Regulations, as the case may
be.
(b) The Representatives shall have been satisfied that there
shall not have occurred any change prior to the Closing Dates in the
condition (financial or otherwise), properties, business, management,
prospects, net worth or results of operations of the Company (other
than the continued incurrence of losses in the ordinary course of
business), or any change in the capital stock (other than issuances of
stock pursuant to the exercise of warrants or options to purchase
shares of Common Stock permitted under Section 4(k)), short-term or
long-term debt of the Company (other than changes contemplated by the
Prospectus), such that (i) the Registration Statement or the
Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact which, in the opinion of the Representatives, is
material, or omits to state a fact which, in the opinion of the
Representatives, is required to be stated therein or is necessary to
make the statements therein not misleading, or (ii) it is unpracticable
in the reasonable judgment of the Representatives to proceed with the
public offering or purchase the Stock as contemplated hereby.
(c) The Representatives shall be satisfied that no legal or
governmental action, suit or proceeding affecting the Company which is
material and adverse to the Company or which affects or may affect the
Company's ability to perform its obligations under this Agreement shall
have been instituted or threatened, and there
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shall have occurred no material adverse development in any existing
such action, suit or proceeding.
(d) At the time of execution of this Agreement, the
Representatives shall have received from Coopers & Xxxxxxx LLP,
independent certified public accountants, a letter, dated the date
hereof, in form and substance satisfactory to the Underwriters.
(e) The Representatives shall have received from Coopers &
Xxxxxxx LLP, a letter, dated as of such Closing Date, to the effect
that such accountants reaffirm, as of such Closing Date, and as though
made on such Closing Date, the statements made in the letter furnished
by such accountants pursuant to paragraph (d) of this Section 8.
(f) The Representatives shall have received from Xxxx and Xxxx
LLP, counsel for the Company, an opinion dated as of such Closing Date,
to the effect set forth in Exhibit I hereto.
(g) The Representatives shall have received from Welsh & Xxxx,
Ltd., patent counsel for the Company, and Xxxx and Xxxx LLP, as counsel
for the Company, an opinion dated as of such Closing Date, to the
effect set forth in Exhibit II hereto.
(h) The Representatives shall have received from Xxxxxxxxx &
Xxxxxxx, regulatory counsel for the Company, an opinion dated as of
such Closing Date, to the effect set forth in Exhibit III hereto.
(i) The Representatives shall have received from Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, an
opinion dated as of such Closing Date, as to customary matters with
respect to the incorporation of the Company, the validity of the Stock,
the Registration Statement and the Prospectus and such other related
customary matters as it may reasonably request, and the Company shall
have furnished to such counsel such documents as they may request for
the purpose of enabling them to pass upon such matters.
(j) The Representatives shall have received a certificate,
dated as of such Closing Date, of the chief executive officer and the
chief financial or accounting officer of the Company on behalf of the
Company to the effect that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best of
the knowledge of the signers, no proceedings for that purpose
have been instituted or are pending or contemplated under the
Securities Act;
(ii) Neither any Preeffective Prospectus, as of its
date, nor the Registration Statement nor the Prospectus, nor
any amendment or supplement thereto, as of the time when the
Registration Statement became effective and at all times
subsequent thereto up to the delivery of such certificate,
included any untrue statement of a material fact or omitted to
state any material fact required
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to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, and except as set forth or contemplated in the
Prospectus, the Company has not incurred any material
liabilities or obligations, direct or contingent, nor entered
into any material transactions not in the ordinary course of
business, there has not been any material adverse change in
the condition (financial or otherwise), properties, business,
prospects, net worth or results of operations of the Company
(other than the continued incurrence of losses in the ordinary
course of business), or any change in the capital stock (other
than issuances of stock pursuant to the exercise of warrants
or options to purchase shares of Common Stock permitted under
Section 4(k)), short-term or long-term debt of the Company,
nor has the Company repurchased or otherwise acquired any of
the Company's capital stock;
(iv) The representations and warranties of the
Company in this Agreement are true and correct at and as of
such Closing Date, and the Company has complied with all the
agreements and performed or satisfied all the conditions on
its part to be performed or satisfied at or prior to such
Closing Date; and
(v) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, and except as disclosed in or contemplated by the
Prospectus, (A) the business and operations conducted by the
Company have not sustained a loss by strike, fire, flood,
accident or other calamity (whether or not insured) of such a
character as to interfere materially and adversely with the
conduct of the business and operations of the Company; (B) no
legal or governmental action, suit or proceeding affecting the
Company which is material and adverse to the Company or which
affects or may affect the Company's ability to perform its
obligations under this Agreement has been instituted or
threatened, and no material adverse development in any
existing such action, suit or proceeding has occurred; and (C)
the Company has not declared or paid any dividend, or made any
other distribution, upon its outstanding capital stock payable
to stockholders of record on a date prior to such Closing
Date.
(k) The Company shall have furnished to the Representatives
such additional certificates as the Representatives may have reasonably
requested, including, without limitation, certificates as to the
accuracy, at and as of the Closing Date, of the representations and
warranties made herein by it and as to compliance at and as of the
Closing Dates by it with its covenants and agreements herein contained
and other provisions hereof to be satisfied at or prior to the Closing
Dates, and as to satisfaction of the other conditions to the
obligations of the Underwriters hereunder.
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(l) Cowen shall have received a letter in the form attached
hereto as Exhibit IV from the officers, directors, holders of
convertible notes, holders of convertible stock and holders of Common
Stock listed in Schedule B.
All opinions, certificates, letters and other documents will
be in compliance with the provisions hereunder only if they are
reasonably satisfactory in form and substance to the Representatives.
The Company will furnish to the Representatives conformed copies of
such opinions, certificates, letters and other documents as the
Representatives shall reasonably request. If any of the conditions
hereinabove provided for in this Section shall not have been satisfied
when and as required by this Agreement, this Agreement may be
terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date,
but Cowen shall be entitled to waive any of such conditions.
9. Effective Date. This Agreement shall become effective immediately as
to Sections 5, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 17 hereof and, as to all
other provisions, at 11:00 am. Boston Time on the first full business day
following the effectiveness of the Registration Statement or at such earlier
time after the Registration Statement becomes effective as the Representatives
may determine on and by notice to the Company or by release of any of the Stock
for sale to the public. For the purposes of this Section 9, the Stock shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Stock or upon the release by you of
telegrams (i) advising Underwriters that the shares of Stock are released for
public offering or (ii) offering the Stock for sale to securities dealers,
whichever may occur first.
10. Termination. This Agreement (except for the provisions of Section 5
hereof) may be terminated by the Company at any time before it becomes effective
in accordance with Section 9 hereof by notice to the Representatives and may be
terminated by the Representatives at any time before it becomes effective in
accordance with Section 9 hereof by notice to the Company. In the event of any
termination of this Agreement under this or any other provision of this
Agreement, there shall be no liability of any party to this Agreement to any
other party, other than as provided in Sections 5, 6 and 11 hereof and other
than as provided in Section 12 hereof as to the liability of defaulting
Underwriters.
This Agreement may be terminated after it becomes effective with
respect to Common Stock to be purchased at Closings that have not yet occurred
by the Representatives by notice to the Company (i) if at or prior to the First
Closing Date or Option Closing Date trading in securities on Nasdaq National
Market System shall have been suspended or minimum or maximum prices shall have
been established on any such exchange or market, or a banking moratorium shall
have been declared by New York or United States authorities; (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) if at or prior to the First Closing Date or
Option Closing Date there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power or of any other
insurrection or armed conflict involving the United States or (B) any change in
financial markets or any calamity or crisis which, in the judgment of the
Representatives, makes it impractical or inadvisable to offer or sell the Firm
Stock or Optional
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Stock, as applicable, on the terms contemplated by the Prospectus; (iv) if there
shall have been any development or prospective development involving
particularly the business or properties or securities of the Company or the
transactions contemplated by this Agreement, which, in the judgment of the
Representatives, makes it impracticable or inadvisable to offer or deliver the
Firm Stock or the Optional Stock, as applicable, on the terms contemplated by
the Prospectus; (v) if there shall be any litigation or proceeding, pending or
threatened, which, in the judgment of the Representatives, makes it
impracticable or inadvisable to offer or deliver the Firm Stock or Optional
Stock, as applicable, on the terms contemplated by the Prospectus; or (vi) if
there shall have occurred any of the events specified in the immediately
preceding clauses (i) - (v) together with any other such event that makes it, in
the judgment of the Representatives, impractical or inadvisable to offer or
deliver the Firm Stock or Optional Stock, as applicable, on the terms
contemplated by the Prospectus.
11. Reimbursement of Underwriters. Notwithstanding any other provisions
hereof, if this Agreement shall not become effective by reason of any election
of the Company pursuant to the first paragraph of Section 10 hereof or shall be
terminated by the Representatives under Section 8 before the occurrence of the
First Closing or the second paragraph of Section 10 hereof, the Company will
bear and pay the expenses specified in Section 5 hereof and, in addition to its
obligations pursuant to Section 6 hereof, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection with this Agreement and the proposed purchase of the Stock, and
promptly upon demand the Company will pay such amounts to you as
Representatives.
12. Substitution of Underwriters. If any Underwriter or Underwriters
shall default in its or their obligations to purchase shares of Stock hereunder
and the aggregate number of shares which such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the total number of shares underwritten, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 12, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement or supplements to
the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall
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relieve any defaulting Underwriter of its liability to the Company or the other
Underwriters for damages occasioned by its default hereunder. Any termination of
this Agreement pursuant to this Section 12 shall be without liability on the
part of any non-defaulting Underwriter or the Company, except for expenses to be
paid or reimbursed pursuant to Section 5 hereof and except for the provisions of
Section 6 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered, telecopied or telegraphed
and confirmed to you, as their Representatives c/o Cowen & Company at Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
furnished by the Representatives or, if sent to the Company, shall be mailed,
delivered, telecopied or telegraphed and confirmed c/o Chief Executive Officer,
Ascent Pediatrics, Inc., 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, with a
copy to the Company's counsel, Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: Xxxxx X. Xxxxxxx, Esquire, or such other address or addresses
of which the Company may provide notice to the Underwriters in accordance with
the terms hereof.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of each such Underwriter, and
the indemnities of the several Underwriters shall also be for the benefit of
each director of the Company, each of its officers who has signed the
Registration Statement and the person or persons, if any, who control the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
16. Authority of the Representatives. In connection with this
Agreement, you will act for and on behalf of the several Underwriters, and any
action taken under this Agreement by Cowen, as Representative, will be binding
on all the Underwriters.
17. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed
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to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
18. General. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representatives.
19. Counterparts. This Agreement may be signed in two (2) or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
ASCENT PEDIATRICS, INC.
By:_______________________________
Xxxx X. Xxx, President and
Chief Executive Officer
Accepted and delivered
as of the date first above written.
XXXXX & COMPANY
XXXXX XXXXX XXXXXX & COMPANY LLC
XXXXX, XXXXXXXX & XXXX, INC.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: XXXXX & COMPANY
By: Cowen Incorporated,
its general partner
By:___________________________
Title:
By: XXXXX XXXXX XXXXXX & COMPANY LLC
By:____________________________
Title:
By: XXXXX XXXXXXXX & XXXX, INC.
By:____________________________
Title:
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SCHEDULE A
Number of
Shares of
Firm Stock
to be
Name Purchased
---- ---------
Xxxxx & Company.................
Xxxxx Xxxxx Xxxxxx & Company LLC........
Xxxxx, Xxxxxxxx & Xxxx, Inc..........
---------
Total . . . . . . . .
=========
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SCHEDULE B
[LIST OF OFFICERS, DIRECTORS AND STOCKHOLDERS
SUBJECT TO WAIVER AND LOCK-UP AGREEMENTS]
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EXHIBIT I
(i) 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
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus; the Company is duly qualified to
transact business in the Commonwealth of Massachusetts.
(ii) The Company has authorized and, to the best of our knowledge based on our
review of the Company's stock record books, outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus; the authorized
shares of its Common Stock have been duly authorized; the outstanding shares of
its Common Stock have been duly authorized and validly issued and are fully paid
and non-assessable; the Stock conforms in all material respects to the
description thereof contained in the Prospectus; the certificates for the Stock,
assuming they are in the form filed with the Commission, are in due and proper
form; the shares of Common Stock, including the Optional Stock, if any, to be
sold by the Company pursuant to the Underwriting Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable when issued
and paid for as contemplated by the Underwriting Agreement; and to such
counsel's knowledge, no preemptive rights of stockholders exist with respect to
the Stock or the issue or sale thereof.
(iii) Except as described in or contemplated by the Prospectus, to such
counsel's knowledge, there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company, and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in the
Prospectus, to such counsel's knowledge, there is no holder of any securities of
the Company or any other person who has the right, contractual or otherwise
which has not been effectively waived, to cause the Company to sell or otherwise
issue to them, or to permit them to underwrite the sale of, any of the Stock or
the right to have any Common Stock or other securities of the Company included
in the Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Securities Act of any
Common Stock or other securities of the Company within 180 days after the
effective date of the Registration Statement.
(iv) The Registration Statement has become effective under the Act and, to such
counsel's knowledge, no stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Securities Act.
(v) The Registration Statement, the Prospectus and each amendment or supplement
thereto comply as to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations (except that we express no opinion
as to the financial statements and notes thereto, and other financial
information included therein).
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(vi) The statements in the Prospectus under the caption "Description of Capital
Stock" and in Items 14 and 15 of the Registration Statement, insofar as such
statements constitute a summary of matters of law, are accurate in all material
respects.
(vii) Such counsel knows of no contracts or documents required to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus which are not so filed or described as required.
(viii) Such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company is a party or to which any of the
properties of the Company are subject that are required to be described in the
Registration Statement or the Prospectus and are not so described.
(ix) The execution and delivery by the Company of the Underwriting Agreement and
the consummation of the transactions therein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, (A) the Charter or By-laws of the Company or (B) any
agreement filed as an exhibit to the Registration Statement, or (C) any
judgment, order or decree known to such counsel applicable to the Company of any
governmental body, agency or court having jurisdiction over the Company.
(x) No approval, consent, order, authorization, designation, declaration,
qualification or filing of, by or with any regulatory, administrative or other
governmental body or agency is required for the execution, delivery or
performance by the Company of its obligations under the Underwriting Agreement
and the consummation of the transaction contemplated thereby, except such as may
be required by the Securities Act and the applicable rules and regulations of
the Commission thereunder (all of which have been obtained), and the Securities
or Blue Sky Laws of the various states in connection with the offer and sale of
the Stock by the underwriters.
(xi) The Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
(xii) The Stock issued and sold by the Company has been approved for listing on
The Nasdaq National Market upon official notice of issuance.
(xiii) The Company is not an investment company under the Investment Company Act
of 1940.
In rendering such opinion Xxxx and Xxxx LLP may rely as to matters
governed by the laws of states other than Delaware or Massachusetts or Federal
laws on local counsel in such jurisdictions, provided that in each case Xxxx and
Xxxx LLP shall state that they believe that they and the Underwriters are
justified in relying on such other counsel.
In rendering such opinion, such counsel shall also make the following
statements:
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In connection with the preparation of the Registration Statement and
the Prospectus, we have participated in conferences with officers and
representatives of the Company, representatives of the Underwriters and the
independent accountants of the Company, at which conferences we made inquiries
of such persons and others and discussed the contents of the Registration
Statement and the Prospectus. We have not independently verified the statements
made in the Registration Statement and Prospectus, and we cannot and do not
assume responsibility for the accuracy of completeness thereof. On the basis of
such participation, inquiries and discussions, no facts have come to our
attention which have caused us to believe that: (a) the Registration Statement,
as of the effective date thereof (but after giving effect to changes
incorporated pursuant to Rule 430A under the Act), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading (except that we express no such view with respect to the financial
statements, including the notes and schedules thereto, or any financial or
accounting information, or information relating to the Underwriters or the
method of distribution of the Stock by the Underwriters included therein or the
statements in the Prospectus relating to intellectual property to which Welsh &
Xxxx, Ltd., has provided to you a separate legal opinion (the "Intellectual
Property Statements") or the statements in the Registration Statement relating
to certain regulatory matters as to which Xxxxxxxxx & Xxxxxxx has provided to
you a separate legal opinion (the "Regulatory Statements")); or (b) the
Prospectus, as of the date it was filed with the Commission pursuant to Rule
424(b) under the Act, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they are made, not misleading
(except that we express no such view with respect to the financial statements,
including the notes and schedules thereto, or any other financial or accounting
information, or information relating to the Underwriters or the method of
distribution of the Stock by the Underwriters included therein or the
Intellectual Property Statements or the Regulatory Statements of the
Prospectus).
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EXHIBIT II
Xxxx and Xxxx LLP is providing this opinion with respect to the patent rights
relating to Primsol Trimethoprim Solution; Welsh & Xxxx, Ltd. is providing this
opinion with respect to all other patent rights of the Company. This opinion is
limited to the specific patent matters as to which Xxxx and Xxxx LLP and Welsh &
Xxxx, Ltd. were consulted by the Company.
(i) The statements in the Registration Statement and Prospectus (A) under
the caption "Risk Factors - Uncertainty Regarding Patents and
Proprietary Rights" and (B) under the caption "Business - Patents,
Trade Secrets, Licenses, and Trademarks" insofar as such statements
constitute summaries of the patent matters set forth therein are
accurate statements in all material respects, provided, however, that
we have relied on the representations of the Company with respect to
the factual matters contained in such statements.
(ii) Based on the limits of the representation of counsel, no facts have
come to the attention of such counsel which would form a reasonable
basis for us to conclude that (a) the Registration Statement or any
amendment thereto, or (b) the Prospectus, as amended or supplemented,
contain any untrue statement of a material fact with respect to the
patent position of the Company or omit to state any material fact
relating to the patent position of the Company, which is necessary to
make the statements contained therein not misleading.
(iii) Based on representations by the Company that no interests have been
conveyed to third parties which have not been recorded in the United
States Patent and Trademark Office (the "PTO"), the Company has clear
record title to their respective United States patents and patent
applications identified in Schedule A to this opinion.
(iv) Based on the limits of the representation of counsel, no facts have
come to our attention that would form a reasonable basis for us to
conclude that any of the United States patents owned by or licensed to
the Company is unenforceable or invalid. Except as described and
qualified in the Prospectus, to the best of our knowledge, there are no
patents of others which are or would be infringed by specific, current
or proposed products or processes referred to in the Prospectus in such
manner as to materially and adversely affect the Company and the
Company has not received any notice of any pending or threatened
action, suit, proceeding or claim by others that the Company is
infringing any patent which reasonably could be expected to have a
material adverse effect on the Company.
(v) To the knowledge of such counsel, the Company has not received any
notice that there are legal or governmental proceedings pending
relating to the United States patent rights of the Company, other than
PTO review of pending applications for patents, including appeal
proceedings, and, to the best of our knowledge, the Company has not
received any notice that such proceedings are threatened or
contemplated by United States governmental authorities or others which
reasonably could be expected to have a material adverse effect on the
Company, except as described in the Registration
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Statement and the Prospectus.
(vi) We do not know of any material contracts relating to the Company's
patents or patent applications or licenses to the Company of patented
technology other than those described in the Registration Statement and
the Prospectus or identified on Schedule A.
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EXHIBIT III
The statements in the Prospectus under the captions "Risk Factors -
Uncertainty Related to Approval of Primsol Trimethoprim Solution" and
"- No Assurance of Regulatory Approval; Extensive Government
Regulation", and "Business - Products and Products Under Development"
and "- Government Regulation", insofar as such statements purport to
summarize applicable provisions of the FDA Act and the regulations
promulgated thereunder, are accurate summaries in all material respects
of the provisions purported to be summarized under such captions in the
Prospectus.
During the course of preparation of the Registration
Statement, we participated in certain discussions with officers of the
Company as to the FDA regulatory matters dealt with under the captions
"Risk Factors - Uncertainty Related to Approval of Primsol Trimethoprim
Solution" and "- No Assurance of Regulatory Approval; Extensive
Government Regulation", and "Business - Products and Products Under
Development" and "- Government Regulation" in the Prospectus. While we
have not undertaken to determine independently, and we do not assume
any responsibility for, the accuracy, completeness, or fairness of the
statements under such captions in the Prospectus, we may state on the
basis of these discussions and our activities as special FDA regulatory
counsel to the Company in connection with our review of the statements
contained in such captioned sections that no facts have come to our
attention which cause us to believe the statements in the Prospectus
under such captions, insofar as such statements related to FDA
regulatory matters, at the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, or as of the date hereof,
contains an untrue statement of a material fact or omits 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.
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EXHIBIT IV
FORM OF WAIVER AND LOCK-UP AGREEMENT
Xxxxx & Company
Xxxxx, Xxxxx & Company
Xxxxx, Xxxxxxxx & Xxxx
c/o Cowen & Company
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Ascent Pediatrics, Inc. (the "Company") proposes to sell certain shares
of its Common Stock, $.00004 par value per share (the "Common Stock"), in an
initial public offering for which Xxxxx & Company ("Cowen"), Xxxxx, Xxxxx &
Company and Xxxxx, Xxxxxxxx & Xxxx are acting as the representatives (the
"Representatives") of the several Underwriters (collectively, the
"Underwriters"). In order to induce the Company and the Representatives to enter
into an underwriting agreement (the "Underwriting Agreement") with respect to
the sale of shares of the Common Stock to the Underwriters named therein
pursuant to a Registration Statement to be filed by the Company on Form S-1 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), and in order to enable the Company and the undersigned, if applicable,
to comply with certain conditions specified in the Underwriting Agreement, the
undersigned does hereby:
(i) undertake and agree that it will not, from the date of the
filing of the Registration Statement with the Securities and
Exchange Commission or the date hereof, whichever is later,
until the end of the 180 day period following the date on
which the price of the Common Stock to be purchased by the
Underwriters is set (the "Pricing Date"), without the prior
written consent of Cowen on behalf of the Underwriters (1)
offer, sell, contract to sell, grant any option to purchase or
acquire any right to dispose or otherwise dispose for value,
any shares of Common Stock or any securities convertible into,
or exchangeable for, or warrants to purchase, any shares of
Common Stock (including, without limitation, Common Stock
which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations
promulgated under the federal securities laws), or (2) enter
into any swap, short sale, hedge or other agreement that
transfers, in whole or in part, the economic risk of ownership
of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise, other
than (a) pursuant to bona fide gifts,
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(b) transfers which will not result in any change in
beneficial ownership, including, but not limited to, pro rata
partnership distributions and transfers into trusts for the
benefit of the original holder, (c) pursuant to the laws of
testamentary or intestate descent, or (d) pursuant to a final
and nonappealable order of a court or other body of competent
jurisdiction; provided, that, in any of the circumstances
identified in the foregoing clauses "(a)," "(b)," or "(c)" the
donees or transferees agree with Cowen, in writing, to be
bound by the provisions of this Lock Up Agreement; and
(ii) waive irrevocably and agree not to exercise, for a period from
the date of the filing of the Registration Statement with the
Securities and Exchange Commission or the date hereof,
whichever is later, until at least 180 days following the
Pricing Date, any and all rights that the undersigned may have
to request or otherwise require that the Company register
under the Act, any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common
Stock.
The undersigned confirms that the agreements of the undersigned are
irrevocable and shall be binding upon the undersigned's legal representatives,
successors and assigns. The undersigned agrees and consents to the entry of stop
transfer instruction with the Company's transfer agent against the transfer of
securities of the Company held by the undersigned except in compliance with the
terms and conditions of this Lock-Up Agreement.
This Lock-Up Agreement shall be governed by the laws of the State of
New York without giving effect to the conflicts of law principles thereof.
The undersigned understands that the Company and Underwriters will
proceed toward the proposed initial public offering in reliance upon this
Lock-Up Agreement.
Very truly yours,
_____________________________
Name:
Title:_______________________
Date:________________________
