EXHIBIT 1.1
[____] UNITS *
BIOPURE CORPORATION
UNDERWRITING AGREEMENT
December __, 2006
Xxxxxx Xxxxx Securities, Inc.,
As Representative of the several
Underwriters named in Schedule I hereto
c/o Xxxxxx Xxxxx Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxx Xxxxx, XX 00000
Dear Sirs:
Biopure Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions contained herein, to sell to you and the
other underwriters named on Schedule I to this Agreement (the "Underwriters")
for whom you are acting as Representative (the "Representative"), the number of
securities of the Company identified on Schedule I to this Agreement.
The Underwriters, severally and not jointly, agree to purchase from the
Company the number of Firm Units set forth opposite their respective names on
Schedule I attached hereto and made a part hereof at a purchase price (net of
discounts and commissions) of $____ per Firm Unit. The Firm Units are to be
offered to the public (the "Offering") at the offering price of $___ per Firm
Unit. Each Firm Unit consists of one (1) share of the Company's Class A common
stock, par value $0.01 per share (the "Common Stock"), and one (1) warrant (the
"Warrant"). Each Warrant entitles its holder to exercise it to purchase one (1)
share of Common Stock for $_____ and shall be exercisable immediately for a
period of five (5) years commencing on the Effective Date (as defined
hereinbelow). The Warrants are to be issued under the terms of a Warrant
Agreement (the "Warrant Agreement") by and between the Company and its stock
transfer agent, American Stock Transfer & Trust Company, in substantially the
form filed as an exhibit to the Registration Statement (as hereinafter defined).
The shares of Common Stock and the Warrants are separate securities and are
referred to collectively as "Units" for convenience only.
The Company has prepared and initially filed in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and the published rules and regulations thereunder (the "Rules") adopted by the
Securities and Exchange Commission (the "Commission"), a Registration Statement
(as hereinafter defined) on Form S-1 on October 17, 2006 (File No. 333-138049),
including a Preliminary Prospectus (as hereinafter defined) relating to the
Securities (as hereinafter defined), and such amendments thereof as may have
been required to the date of this Underwriting Agreement (the "Agreement"). The
Company has heretofore delivered copies of the Registration Statement (including
all amendments thereto) and of the related Preliminary Prospectus to you. The
term "Preliminary Prospectus" means any preliminary prospectus included at any
time as a part of the Registration Statement or filed with the Commission by the
Company pursuant to Rule 424(a) of the Rules. The term "Registration Statement"
as used in this Agreement means the initial registration statement (including
all exhibits, all financial schedules and all documents and information deemed
to be a part of the Registration Statement through incorporation by reference or
otherwise), as amended at the time and on the date it becomes effective (the
"Effective Date"), including the information (if any) contained in the form of
final Prospectus (as hereinafter defined) filed with the Commission pursuant to
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* Plus an additional [__________] Units subject to Underwriters'
Over-allotment Option.
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Rule 424(b) of the Rules and deemed to be part thereof at the time of
effectiveness pursuant to Rule 430A of the Rules. If the Company has filed an
abbreviated registration statement to register additional shares pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement"), then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the Prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Regulations is
relied on, the term Prospectus shall also include the final Prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules.
The Company understands that the Underwriters propose to make a public
offering of the shares and warrants, as set forth in and pursuant to the
Prospectus, as soon after the Effective Date and the date of this Agreement as
the Representative deems advisable. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed the Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the Underwriters).
1. Sale, Purchase, Delivery and Payment for the Shares. On the basis of
the representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a)(i) The Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price of $_____ per Firm Unit (net of discounts and
commissions) (the "Initial Price"), the number of Firm Units set forth opposite
the name of such Underwriter under the column "Number of Firm Units to be
Purchased" on Schedule I to this Agreement, subject to adjustment in accordance
with Section 6 hereof.
(ii) For the purposes of covering any over-allotments in connection with
the distribution and sale of the Firm Units, the Company hereby grants to the
Underwriters, severally and not jointly, an option to purchase up to an
additional [_____] Units (the "Over-allotment Option"). Such additional [____]
Units are hereinafter referred to as "Option Units." The Firm Units and the
Option Units are hereinafter collectively referred to as the "Units," and the
Units, the Warrants and the shares of Common Stock issuable upon exercise of the
Warrants are hereinafter referred to collectively as the "Public Securities."
The purchase price to be paid for the Option Units will be the same price per
Option Unit as the price per Firm Unit set forth in Section 1(a)(i) hereof.
The Over-allotment Option granted pursuant to Section 1(a)(ii) hereof may
be exercised by the Representative as to all (at any time) or any part (from
time to time) of the Option Units within 45 days after the Effective Date. The
Underwriters will not be under any obligation to purchase any Option Units prior
to the exercise of the Over-allotment Option. The Over-allotment Option granted
hereby may be exercised by the giving of oral notice to the Company by the
Representative, which must be confirmed in writing by overnight mail or
facsimile transmission setting forth the number of Option Units to be purchased
and the date and time for delivery of and payment for the Option Units (the
"Option Closing Date"), which will not be later than five (5) full business days
nor earlier than two (2) full business days after the date of the notice or such
other time as shall be agreed upon by the Company and the Representative, at the
offices of the Representative or at such other place as shall be agreed upon by
the Company and the Representative. Upon exercise of the Over-allotment Option,
the Company will become obligated to convey to the Underwriters, and, subject to
the terms and conditions set forth herein, the Underwriters will become
obligated to purchase, the number of Option Units specified in such notice.
(b) Payment of the purchase price for, and delivery of the certificates
for, the Firm Units shall be made at 10:00 A.M., New York time, on _______,
2006, or such other date, not later than the fifth (5th) business day
thereafter, or at such earlier time as shall be agreed upon by the
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Representative and the Company at the offices of the Representative or at such
other place as shall be agreed upon by the Representative and the Company. The
hour and date of delivery and payment for the Firm Units are called the "Closing
Date." Payment for the Firm Units shall be made on the Closing Date by wire
transfer in Federal (same day) funds to the Company upon delivery to you of
certificates (in form and substance satisfactory to the Underwriters)
representing components of the Firm Units (or through the facilities of the
Depository Trust Company ("DTC")) for the account of the Underwriters. The Firm
Units shall be registered in such name or names and in such authorized
denominations as the Representative may request in writing at least two (2) full
business days prior to the Closing Date. The Company will permit the
Representative to examine and package the Firm Units for delivery, at least one
(1) full business day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by the
Representative for all the Firm Units.
(c) The Company hereby agrees to issue to the Representative (and/or its
designees) on the Effective Date two (2) warrants (the "Representative's
Warrants"), each for the purchase of an aggregate of [_______] shares of Common
Stock ("Representative's Shares"). The Representative's Warrants shall be
exercisable, in whole or in part, for the period of four (4) years commencing on
the first anniversary of the Effective Date, one at an initial exercise price
per Representative's Share of $____, which is equal to one hundred twenty
percent (120%) of the Initial Price, and the other at an initial exercise price
per Representative's Share of $____, which is equal to one hundred twenty-five
percent (125%) of the Initial Price. The Representative's Warrants and the
shares of Common Stock issuable upon exercise of the Representative's Warrants
are hereinafter referred to collectively as the "Representative's Securities."
The Public Securities and the Representative's Securities are hereinafter
referred to collectively as the "Securities." The Representative understands and
agrees that there are significant restrictions against transferring the
Representative's Warrants during the first one hundred eighty (180) days after
the Effective Date, as set forth in the Representative's Warrants.
Payment of the purchase price of, and delivery of the certificates for,
the Representative's Warrants shall be made on the Closing Date. The Company
shall deliver to the Representative, upon payment therefor, certificates for the
Representative's Warrants in the name or names and in such authorized
denominations as the Representative may request.
2. Representations and Warranties of the Company. For your own independent
business reasons, you have required the Company to make the following
representations and warranties as a condition to agreeing to execute this
Agreement. You understand, and anyone reviewing this Agreement should
understand, that disclosure regarding the Company and its business is contained
in the Prospectus or Registration Statement, and that no representation,
warranty, covenant or agreement contained in this Agreement is intended, or
should be construed, to modify the disclosure about the Company and its business
contained in the Prospectus or Registration Statement. The Company hereby
represents and warrants to each Underwriter on the date hereof, and shall be
deemed to represent and warrant to each Underwriter on the Closing Date, that:
(a) At the time the Registration Statement became effective and at all
times subsequent thereto up to the Closing Date and the Option Closing Date, if
any, the Registration Statement and the Prospectus will contain all material
statements that are required to be stated therein in accordance with the
Securities Act and the Rules, and will in all material respects conform to the
requirements of the Securities Act and the Rules; neither the Registration
Statement nor the Prospectus, nor any amendment or supplement thereto, on such
dates, will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. When any Preliminary Prospectus was first filed with the Commission
(whether filed as part of the Registration Statement for the registration of the
Securities or any amendment thereto or pursuant to Rule 424(a) of the Rules) and
when any amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
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applicable provisions of the Securities Act and the Rules and did not and will
not contain an untrue statement of a material fact or omit to state any 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. Notwithstanding the foregoing, none of the representations and
warranties made in this Section 2(a) shall apply to statements made or
statements omitted from the Registration Statement, Prospectus or any
Preliminary Prospectus (or any amendments or supplements thereto) in reliance
upon and in conformity with written information furnished to the Company with
respect to the Underwriters by the Representative expressly for use in the
Registration Statement or Prospectus or any amendment thereof or supplement
thereto.
(b) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in and complied in all material
respects with the requirements of the Exchange Act, as applicable, and the Rules
thereunder, and none of such documents 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 statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Rules thereunder and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Notwithstanding the
foregoing, none of the representations and warranties in this paragraph shall
apply to statements in, or omissions from, the Prospectus made in reliance upon,
and in conformity with, information herein or otherwise furnished in writing by
the Representative on behalf of the several Underwriters for use in the
Prospectus. With respect to the preceding sentence, the Company acknowledges
that the only information furnished in writing by the Representative on behalf
of the several Underwriters for use in the Prospectus is the statements
contained under the caption "Underwriting" in the Prospectus.
(c) The agreements and documents described in the Registration Statement
and the Prospectus conform to the descriptions thereof contained therein and
there are no agreements or other documents required to be described in the
Registration Statement or the Prospectus or to be filed with the Commission as
exhibits to the Registration Statement that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which
the Company is a party or by which its property or business is or may be bound
or affected and (i) that is referred to in the Prospectus, or (ii) is material
to the Company's business, has been duly and validly executed by the Company, is
in full force and effect and is enforceable against the Company and, to the
Company's knowledge, the other parties thereto, in accordance with its terms,
except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, (y) as
enforceability of any indemnification or contribution provision may be limited
under the federal and state securities laws, and (z) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, and none of such agreements or instruments
has been assigned by the Company, and neither the Company nor, to the Company's
knowledge, any other party is in breach or default thereunder and no event has
occurred that, with the lapse of time or the giving of notice, or both, would
constitute a breach or default thereunder. Performance by the Company of the
material provisions of such agreements or instruments will not result in a
violation of any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its assets or businesses, including,
without limitation, those relating to environmental laws and regulations.
(d) No securities of the Company have been sold by the Company or by or on
behalf of, or for the benefit of, any person or persons controlling, controlled
by, or under common control with the Company since its inception prior to the
date hereof, except as disclosed in the Registration Statement.
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(e) The disclosures in the Registration Statement summarizing the effects
of federal, state and local regulation on the Company's business as currently
contemplated are correct summaries in all material respects and do not omit to
state a material fact.
(f) The statistical and related data included in the Registration
Statement are based on or derived from sources that the Company believes to be
reliable and accurate.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise specifically
stated therein, (i) the Company has not incurred any liabilities or obligations,
direct or contingent, which are material, individually or in the aggregate, to
the Company, taken as a whole, nor entered into any material transaction not in
the ordinary course of business (other than additional draws made under existing
credit facilities), (ii) except as contemplated by the Prospectus, there has not
been any change in the Company's capital stock or increase in long-term debt
(other than additional draws made under existing credit facilities) or any
payment of or declaration to pay any dividends or other distribution with
respect to the capital stock (or other) of the Company, (iii) the Company has
not sustained since the date of the latest audited financial statements included
in the Prospectus any material loss or interference with its business, whether
or not covered by insurance, otherwise than as contemplated by the Prospectus,
(iv) since the date of the latest audited financial statements included in the
Prospectus and except as contemplated by the Prospectus, there has not been any
material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in or affecting the general affairs,
management, business, properties, prospects or condition (financial or
otherwise), stockholders' equity, or results of operations of the Company, taken
as a whole, nor have any events occurred which, singly or in the aggregate, have
a material adverse effect on the sale of the Securities or the consummation of
the transactions contemplated hereby (any change or event described in (iv) of
this clause (g), a "Material Adverse Effect"); and (v) the Company has good and
marketable title in fee simple to all material real property and good and
marketable title to all material personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to
be made of such property by the Company; and any real property and buildings
held under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as are described in the Prospectus or
are not material and do not interfere materially with the use made and proposed
to be made of such property and buildings by the Company.
(h) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and has been duly qualified to do
business as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, except
where the failure to be so qualified or in good standing would not have a
Material Adverse Effect; and to the Company's knowledge, no proceeding has been
instituted in any such jurisdiction revoking, limiting or curtailing, or seeking
to revoke, limit or curtail, such power and authority or qualification.
(i) Ernst & Young LLP ("E&Y"), whose report is filed with the Commission
as part of the Registration Statement, are independent accountants as required
by the Act and the Rules. E&Y has not, during the periods covered by the
financial statements included in the Prospectus, provided to the Company any
non-audit services as prohibited in Section 10A(g) of the Exchange Act. There
are no material off-balance sheet transactions, arrangements, obligations
(including contingent obligations) or any other relationships with
unconsolidated entities or other persons, that may have a material current or a
material future effect on the Company's financial condition, changes in
financial condition, results of
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operations, liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses.
(j) The financial statements, including the notes thereto and supporting
schedules included in the Registration Statement and Prospectus fairly present
in all material respects the financial position, the results of operations and
the cash flows of the Company at the dates and for the periods to which they
apply; and such financial statements have been prepared in conformity with
generally accepted accounting principles, consistently applied throughout the
periods involved; and the supporting schedules included in the Registration
Statement present fairly in all material respects the information required to be
stated therein.
(k) The Company had at the date or dates indicated in the Prospectus duly
authorized, issued and outstanding capitalization as set forth in the
Registration Statement and the Prospectus. Based on the assumptions stated in
the Registration Statement and the Prospectus, the Company will have on the
Closing Date the adjusted stock capitalization set forth therein. Except as
described in the Prospectus or in the documents incorporated by reference into
the Prospectus, the Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act,
other than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants.
(l) All issued and outstanding securities of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; except as
described in or expressly contemplated by the Registration Statement, there are
no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the Company, or,
other than agreements with a Representative, any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company, any such convertible or exchangeable
securities or any such rights, warrants or options. The authorized Common Stock
conforms in all material respects to all statements relating thereto contained
in the Registration Statement and the Prospectus. The offers and sales of the
outstanding Common Stock were at all relevant times either registered under the
Act and the applicable state securities or Blue Sky laws or, based in part on
the representations and warranties of the purchasers of such shares of Common
Stock, exempt from such registration requirements. The certificates evidencing
the Securities are in due and proper legal form and have been duly authorized
for issuance by the Company.
(m) The Securities have been duly authorized and, when issued and paid
for, will be validly issued, fully paid and non-assessable; the holders thereof
are not and will not be subject to personal liability by reason of being such
holders; the Securities are not and will not be subject to the preemptive rights
of any holders of any security of the Company or similar contractual rights
granted by the Company; and all corporate action required to be taken for the
authorization, issuance and sale of the Securities has been duly and validly
taken. The Securities conform in all material respects to all statements with
respect thereto contained in the Registration Statement. When issued, the
Representative's Warrants and the Warrants will constitute valid and binding
obligations of the Company to issue and sell, upon exercise thereof and payment
of the respective exercise prices therefor, the number and type of securities of
the Company called for thereby in accordance with the terms thereof and the
Representative's Warrants and the Warrants are enforceable against the Company
in accordance with their respective terms, except (i) as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally, (ii) as enforceability of any indemnification or
contribution provision may be limited under the federal and state securities
laws, and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be
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subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(n) Except as disclosed in the Prospectus, no holders of any securities of
the Company or any rights exercisable for or convertible or exchangeable into
securities of the Company have the right to require the Company to register any
such securities of the Company under the Securities Act or to include any such
securities in a registration statement to be filed by the Company.
(o) This Agreement and the Warrant Agreement (collectively, the "Operative
Agreements") have been duly and validly authorized by the Company and, when
executed and delivered, will constitute, the valid and binding agreements of the
Company, enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (iii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(p) The execution, delivery, and performance by the Company of the
Operative Agreements, the consummation by the Company of the transactions herein
and therein contemplated and the compliance by the Company with the terms hereof
and thereof do not and will not, with or without the giving of notice or the
lapse of time or both (i) result in a breach of, or conflict with any of the
terms and provisions of, or constitute a default under, or result in the
creation, modification, termination or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms of
any agreement or instrument to which the Company is a party, (ii) result in any
violation of the provisions of the certificate of incorporation or the by-laws
of the Company; or (iii) violate any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court, domestic or
foreign, having jurisdiction over the Company or any of its properties or
business.
(q) No material default exists in the due performance and observance of
any term, covenant or condition of any material license, contract, indenture,
mortgage, deed of trust, note, loan or credit agreement, or any other agreement
or instrument evidencing an obligation for borrowed money, or any other material
agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is
subject. The Company is not in violation of any term or provision of its
certificate of incorporation or by-laws or in violation of any material
franchise, license, permit, applicable law, rule, regulation, judgment or decree
of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its properties or businesses.
(r) Except as disclosed in the Prospectus, the Company has all requisite
corporate power and authority, and has all necessary authorizations, approvals,
orders, licenses, certificates and permits of and from all governmental
regulatory officials and bodies that it needs as of the date hereof to conduct
its business as described in the Prospectus. The disclosures in the Registration
Statement concerning the effects of federal, state and local regulation on this
offering and the Company's business purpose as currently contemplated are
correct in all material respects and do not omit 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. The Company has fulfilled and performed in all material respects all
of its material obligations with respect to such permits and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the rights
of the Company thereunder. Except as may be required under the Securities Act
and state and foreign Blue Sky laws, no other permits are required to enter
into, deliver and perform this Agreement and to issue and sell the Securities.
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(s) The Company has all corporate power and authority to enter into this
Agreement and to carry out the provisions and conditions hereof, and all
consents, authorizations, approvals and orders required in connection therewith
have been obtained. No consent, authorization or order of, and no filing with,
any court, government agency or other body is required for the valid issuance,
sale and delivery, of the Securities and the consummation of the transactions
and agreements contemplated by the Operative Agreements and as contemplated by
the Prospectus, except with respect to applicable federal and state securities
laws.
(t) To the Company's knowledge, all information contained in the
questionnaires ("Questionnaires") completed by each of the Company's officers,
directors, and stockholders and provided to the Underwriters is true and correct
in all material respects and the Company has not become aware of any information
which would cause the information disclosed in such Questionnaires to become
inaccurate and incorrect in all material respects.
(u) There is no action, suit, proceeding, inquiry, arbitration,
investigation, litigation or governmental proceeding pending or, to the
Company's knowledge, threatened against, or involving the Company or any
officer, director and stockholder which has not been disclosed in the
Registration Statement, the Prospectus or the Questionnaires or any part
thereof.
(v) The Company has not taken, nor will it take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or result
in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Common Stock
or any security of the Company to facilitate the sale or resale of any of the
Securities.
(w) The Company has not issued any order preventing or suspending the use
of any Preliminary Prospectus, Prospectus, Registration Statement or any part
thereof.
(x) Except as described in the Prospectus or agreements with the
Representative, there are no claims, payments, arrangements, agreements or
understandings relating to the payment of a finder's, consulting or origination
fee by the Company with respect to the sale of the Securities hereunder or any
other arrangements, agreements or understandings of the Company that may affect
the Underwriters' compensation, as determined by the National Association of
Securities Dealers, Inc. ("NASD").
(y) The Company has not made any direct or indirect payments (in cash,
securities or otherwise) (i) to any person, as a finder's fee, consulting fee or
otherwise, in consideration of such person raising capital for the Company or
introducing to the Company persons who raised or provided capital to the
Company, (ii) to any NASD member or (iii) to any person or entity that has any
direct or indirect affiliation or association with any NASD member, within the
twelve (12) months prior to the date of the Prospectus Supplement, other than
payments to the Representative or as disclosed in the filings with the
Commission.
(z) INTENTIONALLY OMITTED.
(aa) Based on the Questionnaires, except as set forth on Schedule 2(aa),
no officer, director or any beneficial owner of the Company's unregistered
securities has any direct or indirect affiliation or association with any NASD
member participating in the Offering. The Company will advise the Representative
and its counsel, if it learns that any officer, director or owner of at least
five percent (5%) of the Company's outstanding Common Stock is or becomes an
affiliate or associated person of an NASD member participating in the Offering.
(bb) Neither the Company nor any other person acting on behalf of the
Company has, directly or indirectly, given or agreed to give any money, gift or
similar benefit (other than legal price concessions
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to customers in the ordinary course of business) to any customer, supplier,
employee or agent of a customer or supplier, or official or employee of any
governmental agency or instrumentality of any government (domestic or foreign)
or any political party or candidate for office (domestic or foreign) or any
political party or candidate for office (domestic or foreign) or other person
who was, is, or may be in a position to help or hinder the business of the
Company (or assist it in connection with any actual or proposed transaction)
that (i) might subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (ii) if not given in the
past, might have had a material adverse effect on the assets, business or
operations of the Company as reflected in any of the financial statements
contained in the Prospectus or (iii) if not continued in the future, might
adversely affect the assets, business, operations or prospects of the Company.
The Company's internal accounting controls and procedures are sufficient to
cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as
amended.
(cc) Any certificate signed by any duly authorized officer of the Company
and delivered to you or to your counsel pursuant to this Agreement shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
(dd) (i) The Company is in compliance in all material respects with all
rules, laws and regulation relating to the use, treatment, storage and disposal
of toxic substances and protection of health or the environment ("Environmental
Laws") which are applicable to its business; (ii) the Company has not received
any notice from any governmental authority or third party of an asserted claim
under Environmental Laws; (iii) the Company has received all permits, licenses
or other approvals required of it under applicable Environmental Laws to conduct
its business and is in compliance with all terms and conditions of any such
permit, license or approval; (iv) to the Company's knowledge, no facts currently
exist that will require the Company to make future material capital expenditures
to comply with Environmental Laws; and (v) no property which is or has been
owned, leased or occupied by the Company has been designated as a Superfund site
pursuant to the Comprehensive Environmental Response, Compensation of Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.) ("CER, CLA 1980") or
otherwise designated as a contaminated site under applicable state or local law.
The Company has not been named as a "potentially responsible party" under the
CER, CLA 1980.
(ee) The Company is not involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute would
have a Material Adverse Effect. The Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal suppliers or
contractors which would have a Material Adverse Effect. The Company is not aware
of any threatened or pending litigation between the Company and any of its
executive officers which, if adversely determined, could have a Material Adverse
Effect and has no reason to believe that such officers will not remain in the
employment of the Company.
(ff) The Company owns or possesses or has the right to use the licenses,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, the "Intellectual
Property") presently employed by it in connection with, and material to,
individually or in the aggregate, its operations, except where the failure to
own, possess or have the right to use would not have a Material Adverse Effect;
and the Company has not received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, individually or
in the aggregate, has, or, would reasonably be expected to result in, a Material
Adverse Effect. To the knowledge of the Company, the use of such Intellectual
Property in connection with the business and operations of the Company as
described in the Prospectus does not infringe on the rights of any person,
except as would not, individually or in the aggregate, result in a Material
Adverse Effect.
-9-
(gg) All income tax returns required to be filed by the Company in all
jurisdictions have been timely and duly filed, other than those filings being
contested in good faith, except where the failure to so file any such returns
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. There are no income tax returns of the Company that are
currently being audited by state, local or federal taxing authorities or
agencies (and with respect to which the Company or its subsidiaries has received
notice), where the findings of such audit could reasonably be expected to result
in a Material Adverse Effect. All material taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or claimed to be
due from such entities, have been paid, other than those being contested in good
faith and for which adequate reserves have been provided or those currently
payable without penalty or interest.
(hh) No employee, officer or director of the Company is subject to any
noncompetition agreement or non-solicitation agreement with any employer or
prior employer which could materially affect his ability to be a stockholder,
employee, officer and/or director of the Company.
(ii) No more than forty-five percent (45%) of the "value" (as defined in
Section 2(a)(41) of the Investment Company Act of 1940, as amended (the
"Investment Company Act")) of the Company's total assets consist of, and no more
than forty-five percent (45%) of the Company's net income after taxes is derived
from, securities other than "Government securities" (as defined in Section
2(a)(16) of the Investment Company Act).
(jj) At the time of filing of the Registration Statement and at the date
hereof, the Company was not and is not an "ineligible issuer," as defined in
Rule 405 under the Securities Act.
(kk) There are no business relationships or related party transactions
involving the Company or any other person required to be described in the
Prospectus that have not been described as required.
(ll) The books, records and accounts of the Company accurately and fairly
reflect, in reasonable detail, the transactions in, and dispositions of, the
assets of, and the results of operations of, the Company. 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 authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability, (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 the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences; the chief executive officer and the
chief financial officer of the Company have made all certifications required by
the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act") and any related rules
and regulations promulgated by the Commission, and the statements contained in
any such certification are complete and correct; the Company maintains
"disclosure controls and procedures" (as defined in Rule 13a-14(c) under the
Exchange Act); the Company is otherwise in compliance in all material respects
with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and is
actively taking steps to ensure that it will be in compliance with other
applicable provisions of the Xxxxxxxx-Xxxxx Act upon the effectiveness of such
provisions.
(mm) No transaction has occurred between or among the Company and any of
its officers or directors, stockholders or any affiliate or affiliates of any
such officer or director or stockholder that is required to be described in and
is not described in the Registration Statement and the Prospectus or in the
documents incorporated by reference into the Registration Statement and the
Prospectus. There is and has been no material failure on the part of the Company
and, to the knowledge of the Company, any of the Company's directors or
officers, in their capacities as such, to comply with any provision of the
Xxxxxxxx-
-00-
Xxxxx Xxx and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(nn) INTENTIONALLY OMITTED.
(oo) The Company during the last three (3) years has materially complied
with, is not in material violation of, and has not received any written notices
of violation with respect to, any foreign, federal, state or local statute, law
or regulation, including without limitation all statutes, rules, or regulations
applicable to the ownership, testing, development, manufacture, packaging,
processing, use, distribution, marketing, labeling, promotion, sale, offer for
sale, storage, import, export or disposal of any product or product candidate
manufactured or distributed by the Company ("Applicable Laws"), or any license,
certificate, approval, clearance, authorization, permit, supplement or amendment
required by any Applicable Laws ("Authorizations"). The Company possesses all
material Authorizations and such material Authorizations are in full force and
effect. The Company is, and its products or product candidates are, in
compliance in all material respects with all Authorizations and Applicable Laws,
including, but not limited to, all laws, statutes, rules, regulations, or orders
administered, issued or enforced by the Federal Food and Drug Administration
(the "FDA") or any other federal or foreign governmental authority having
authority over the Company or any of its products or product candidates
("Governmental Authority"). The Company during the last three (3) years has not
received from the FDA or any other Governmental Authority any notice of adverse
findings , notices of violations, Warning Letters, criminal proceeding notices
under Section 305 of the Federal Food, Drug, and Cosmetic Act, or other similar
communication from the FDA or other Governmental Authority alleging or asserting
material noncompliance with Applicable Laws or any Authorizations, and during
the last three (3) years there have been no seizures conducted or threatened by
the FDA or other Governmental Authority, and no recalls, market withdrawals,
field notifications, notifications of misbranding or adulteration, safety alerts
or similar actions relating to the safety or efficacy of the Company's products
conducted, requested or threatened by the FDA or other Governmental Authority
relating to the products sold by the Company. The Company has not, either
voluntarily or involuntarily, initiated, conducted, or issued or caused to be
initiated, conducted or issued, any recall, market withdrawal, safety alert,
"dear doctor" letter, or other similar notice or action relating to the alleged
lack of safety or efficacy of any of the Company's products or any alleged
product defect or violation, and the Company has no knowledge that any
Governmental Authority has initiated, conducted or intends to initiate any such
notice or action. The Company has not received notice of any claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration or other
similar action from any Governmental Authority alleging that any product
operation or activity is in material violation of any Applicable Laws or
Authorizations and has no knowledge that any such Governmental Authority is
considering any such claim, litigation, arbitration, action, suit, investigation
or proceeding. Each regulatory submission for the Company's products has been
filed, cleared and maintained in compliance in all material respects with all
Applicable Laws and Authorizations, including without limitation applicable
federal statutes, rules, regulations or orders administered or promulgated by
the FDA or other Governmental Authority, and all laboratory and clinical
studies, and tests that the Company has conducted and is conducting to
demonstrate the safety and efficacy of its products and product candidates are
in all material respects in compliance with accepted professional scientific
standards and all Applicable Laws and Authorizations in all material respects.
No filing or submission to the FDA or any other Governmental Authority, intended
to be the basis for any Authorization, contains any material omission or
material false information or presents data and results from the studies in any
manner other than fair, accurate, and complete presentation. The Company is not
aware, directly or indirectly of any other studies, tests, trials,
presentations, publications or other information that could reasonably call into
question the validity, completeness, or accuracy of any study, test, trial,
results or data relating to the Company's products or product candidates. Except
as described in the Prospectus, during the last three (3) years the Company has
not received any notices or correspondence from any Governmental Authority
(including, but not limited to, the FDA) requiring suspension of any studies,
tests, or clinical trials conducted by or on behalf of the Company. Except as
disclosed in the Prospectus,
-11-
the Company is not aware of any facts which are reasonably likely to cause (A)
the nonapproval or non-clearance, withdrawal, or recall of any products sold or
intended to be sold by the Company, or (B) a suspension or revocation of any of
the Company's Authorizations.
(pp) Other than as contemplated by or described in this Agreement and the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Company or any of its subsidiaries any brokerage or finder's
fee or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(qq) The operations of the Company are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is pending, or
to the best knowledge of the Company, threatened.
(rr) Neither the Company, nor, to its knowledge, any director, officer,
agent, employee or affiliate of the Company is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(ss) The Company has fulfilled its obligations, if any, under the minimum
funding standards of Section 302 of the U.S. Employee Retirement Income Security
Act of 1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" as defined in Section 3(3) of ERISA and
such regulations and published interpretations in which its employees are
eligible to participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such regulations
and published interpretations. No "Reportable Event" (as defined in 12 ERISA)
has occurred with respect to any "Pension Plan" (as defined in ERISA) for which
the Company could have any liability.
(tt) Each of the Company, its directors and officers has not distributed
and will not distribute prior to the later of (i) the Closing Date and (ii)
completion of the distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than the
Prospectus, the Registration Statement and other materials, if any, permitted by
the Securities Act.
(uu) Except as described in the Prospectus or in the documents
incorporated by reference into the Prospectus, the Company has taken no action
designed to, or likely to have the effect of, terminating the listing of its
securities on the Nasdaq Stock Market, nor has the Company received any
notification that the Nasdaq Stock Market is contemplating terminating such
listing. Except as described in the Prospectus or in the documents incorporated
by reference into the Prospectus, the Company's board of directors has validly
appointed an audit committee whose composition satisfies the requirements of the
NASD Marketplace Rules. The Company's board of directors and/or the audit
committee has adopted a charter that satisfies the requirements of such
Marketplace Rules. Neither the Company's board of directors nor the audit
committee has been informed, nor is any director of the Company aware, of (i)
any significant deficiencies in the design or operation of the Company's
internal controls which could adversely affect the Company's ability to record,
process, summarize and report financial data or any material weakness in the
Company's internal controls; or (ii) any fraud, whether or not material, that
-12-
involves management or other employees of the Company who have a significant
role in the Company's internal controls.
(vv) As of the time that the first notice of acceptance is sent, the
Issuer-Represented Free Writing Prospectus(es), if any (as listed on Schedule II
to this Agreement), and the Preliminary Prospectus, considered together, did not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Preliminary Prospectus or
any Issuer-Represented Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by the Representative on behalf of
the several Underwriters specifically for use therein. As used in this paragraph
and elsewhere in this Agreement, "Issuer-Represented Free Writing Prospectus"
means any "issuer free writing prospectus" as defined in Rule 433, relating to
the Public Securities, that (A) is required to be filed with the Commission by
the Company, (B) is a "road show that is a written communication" within the
meaning of Rule 433(d)(8)(i), whether or not required to be filed with the
Commission, or (C) is exempt from filing pursuant to Rule 433(d)(5)(i) because
it contains a description of the Public Securities or of the offering of the
Public Securities pursuant to this Agreement.
(ww) Each Issuer-Represented Free Writing Prospectus, as of its issue date
and at all subsequent times through each Closing Date, did not, does not and
will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement. If at any time
following issuance of an Issuer-Represented Free Writing Prospectus there
occurred or occurs an event or development as a result of which such
Issuer-Represented Free Writing Prospectus included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances, not misleading, the Company has notified or will notify promptly
the Representative so that any use of such Issuer-Represented Free Writing
Prospectus may cease until it is amended or supplemented. The foregoing two
sentences do not apply to statements in or omissions from any Issuer-Represented
Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by the Representative on behalf of the several
Underwriters specifically for use therein.
(xx) Unless the Company obtains the prior consent of the Representative,
it has not made and will not make any offer relating to the Public Securities
that would constitute an "issuer free writing prospectus" as defined in Rule
433, or that would otherwise constitute a "free writing prospectus" as defined
in Rule 405, required to be filed with the Commission. The Company has complied
and will comply with the requirements of Rule 433 applicable to any
Issuer-Represented Free Writing Prospectus, including timely filing with the
Commission where required, legending and recordkeeping. The Company has
satisfied and will satisfy the conditions of Rule 433 to avoid a requirement to
file with the Commission any electronic road show.
(yy) Except as disclosed in the Prospectus, the Company does not, directly
or indirectly, including through any subsidiary, have any outstanding personal
loans or other credit extended to or for any director or executive officer.
3. Covenants of the Company. The Company covenants and agrees as follows:
(a) To prepare the prospectus supplement in a form approved by you (such
approval not to be unreasonably withheld or delayed) and to file such prospectus
supplement pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second (2nd) business day following the execution and
delivery of this Agreement; to make no further amendment or any supplement to
the Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any
-13-
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof other than as required by law; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Public Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus, of the suspension of
the qualification of the Public Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order. If, at
any time when a prospectus relating to the Securities is required to be
delivered under the Act, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend or supplement the Prospectus to comply with
the Securities Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the
Company furnishing to the Representative for its review a copy thereof prior to
filing, an amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance.
(b) Prior to 12:00 P.M., New York City time, on the business day next
succeeding the date of this Agreement and from time to time, to furnish each
Underwriter with written and electronic copies of the Prospectus in New York
City in such quantities as you may reasonably request, and, if the delivery of a
Prospectus is required at any time prior to the expiration of nine (9) months
after the time of issue of the Prospectus in connection with the offering or
sale of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify you and upon your reasonable request to file such
document and to prepare and furnish without charge to the Underwriter and to any
dealer in securities as many written and electronic copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Public Securities at any time nine (9)
months or more after the time of issue of the Prospectus, upon your request but
at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(c) The Company shall have the right to engage the Representative, on a
non-exclusive basis, as its agents for the solicitation of the exercise of the
Warrants. The Company, if it so engages the Representative, will (i) assist the
Representative with respect to such solicitation, if requested by the
Representative, and (ii) at the Representative's request, provide the
Representative, and direct the Company's transfer and warrant agent to provide
to the Representative, at the Company's cost, lists of the record and, to the
extent known, beneficial owners of, the Warrants. Commencing one (1) year from
the Effective Date, if it so engages the Representative, the Company will pay
the Representative a commission of five percent (5%) of the exercise price of
the Warrants for each Warrant exercised after such date, payable upon payment of
the exercise price, on the terms provided for in the Warrant Agreement, only if
permitted under the rules and regulations of the NASD and only to the extent
that an
-14-
investor who exercises his Warrants specifically designates, in writing, that
the Representative solicited his exercise. The Representative may engage
sub-agents in their solicitation efforts if engaged by the Company.
(d) The Company hereby agrees to pay on each of the Closing Date to the
extent not paid at Closing Date, all expenses incident to the performance of the
obligations of the Company under this Agreement, including but not limited to
(i) the preparation, printing, filing and mailing (including the payment of
postage with respect to such mailing) of the Registration Statement and exhibits
thereto, the Prospectuses and the printing and mailing of this Agreement and
related documents, including the cost of all copies thereof and any amendments
thereof or supplements thereto supplied to the Underwriters in quantities as may
reasonably be required by the Underwriters, (ii) the printing, issuance and
delivery of the Units and the Representative's Warrants, including any transfer
or other taxes payable thereon, (iii) the filing fees incident to securing any
required review by the NASD of the fairness or reasonableness of the
underwriting terms and arrangements of the Offering and the reasonable fees and
disbursements of the Representative's counsel relating thereto, (iv) costs of
placing "tombstone" advertisements in The Wall Street Journal, The New York
Times and a third publication to be selected by the Representative not to exceed
$10,000, (v) fees and disbursements of the transfer and warrant agent, (vii) the
Company's expenses associated with "due diligence" meetings arranged by the
Representative including a videotape or power-point presentation, and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section
3(d), provided that the Representative provides reasonably detailed invoices.
The Representative may deduct from the net proceeds of the Offering payable to
the Company on the Closing Date the expenses set forth herein to be paid by the
Company to the Representative and others. If the Offering contemplated by this
Agreement is not consummated for any reason whatsoever for reasons not
attributable to the Underwriters, then the Company shall reimburse the
Underwriters in full for their reasonable out of pocket accountable expenses
actually incurred by the Representative. The Representative shall retain such
part of the non-accountable expense allowance previously paid, if any, as shall
equal its reasonable actual out-of-pocket accountable expenses and refund the
balance. If the amount previously paid is insufficient to cover such reasonable
actual out-of-pocket accountable expenses, the Company shall remain liable for
and promptly pay any other actual out-of-pocket accountable expenses.
(e) Neither the Company, nor any of its employees, directors or
stockholders (without the consent of the Representative) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities .
(f) The Company will maintain 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 in order to permit preparation of
financial statements in accordance 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.
(g) The Company shall advise the NASD if it is aware that any five percent
(5%) or greater stockholder of the Company becomes an affiliate or associated
person of an NASD member participating in the distribution of the Public
Securities.
(h) All corporate proceedings and other legal matters necessary to carry
out the provisions of this Agreement and the transactions contemplated hereby
shall have been done to the reasonable satisfaction to counsel for the
Underwriters.
-15-
(i) For a period of five (5) years from the Effective Date, the Company
shall not take any action or omit to take any action that would cause the
Company to be in breach or violation of its certificate of incorporation or
by-laws.
(j) The Company further agrees that, in addition to the expenses payable
pursuant to Section 3(d) , on the Closing Date it will pay to the Representative
a nonaccountable expense allowance equal to two percent (2%) of the gross
proceeds received by the Company from the sale of the Units (less any amounts
previously paid) by deduction from the proceeds of the Offering contemplated
herein.
4. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters to purchase and pay for the
Units, as provided herein, shall be subject to the continuing accuracy of the
representations and warranties of the Company as of the date hereof and as of
the Closing Date to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof and to the performance by the Company of
its obligations hereunder and to the following conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
Rules under the Securities Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction of Cozen X'Xxxxxx, counsel to the
Underwriters.
(b) At or prior to the date hereof, the Representative shall have received
a letter from the Corporate Financing Department of the NASD confirming that
such Department has determined to raise no objections with respect to the
fairness or reasonableness of the underwriting terms and arrangements of the
Offering.
(c) On the Closing Date, the Representative shall have received the
favorable opinion of Ropes & Xxxx LLP, counsel to the Company, dated as of the
Closing Date addressed to the Representative and in previously agreed upon form
and substance.
To the extent deemed advisable by such counsel, such counsel may rely as
to matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representative as to matters which are governed by laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States; provided that such counsel shall state
that in their opinion the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representative and counsel for the Underwriters.
(d) On the Closing Date, the Representative shall have received from FDA
regulatory counsel to the Company, an opinion, addressed to the Representative
and dated as of the Closing Date, and stating in effect that, based upon review
of documents provided by the Company:
(i) The Registration Statement in all material respects
adequately and accurately describes the legal status of the
Company and its product candidates and the legal requirements
under the Federal Food, Drug and Cosmetic Act and the rules,
regulations and guidances promulgated thereunder applicable to
the Company, its manufacturing operations and/or its product
-16-
candidates and for obtaining and maintaining FDA approval to
commercialize its products in the United States.
(ii) Counsel is not aware of any lawsuit or regulatory
proceeding, pending or threatened, brought by or before the
FDA, in which the Company or any of its officers or directors,
in their capacity as such, is or would be the defendant or
respondent, except as described in the Prospectus, and,
without an independent inquiry, counsel is not aware of any
lawsuit or regulatory proceeding, pending or threatened, by
federal regulatory authorities in which the Company is or
would be the defendant or respondent, except as described in
the Prospectus.
(iii) The statements in the Prospectus under the
captions "Risk Factors" relating to the Company's obtaining
FDA and other regulatory approvals, insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are accurate in all material respects and
accurately present the information with respect to such
documents and matters.
In addition, such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company, at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead such
counsel to believe that (i) the Registration Statement at the time it became
effective (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements, notes and
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof contained any untrue statement of a material
fact or omitted 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 or (ii) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such incorporated
document made by the Company, when they became effective or were filed with the
Commission, as the case may be, contained, in the case of a registration
statement which became effective under the Securities Act, any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or,
in the case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) At the time this Agreement is executed, and at the Closing Date you
shall have received a letter, addressed to the Representative and in form and
substance satisfactory in all respects (including the non-material nature of the
changes or decreases, if any, referred to in clause (iii) below) to you and to
Cozen X'Xxxxxx from E&Y dated, respectively, as of the date of this Agreement
and as of the Closing Date:
(i) Confirming that they are independent accountants with
respect to the Company within the meaning of the Securities Act and
the applicable Regulations and that they have not, during the
periods covered by the financial statements included in the
-17-
Prospectus, provided to the Company any non-audit services, as such
term is used in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of
the Company included in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act and the published Regulations
thereunder;
(iii) Stating that, on the basis of a limited review which
included a reading of the latest available unaudited interim
financial statements of the Company (with an indication of the date
of the latest available unaudited interim financial statements), a
reading of the latest available minutes of the stockholders and
board of directors and the various committees of the board of
directors, consultations with officers and other employees of the
Company responsible for financial and accounting matters and other
specified procedures and inquiries, nothing has come to their
attention which would lead them to believe that (a) the unaudited
financial statements of the Company included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Regulations or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements of the
Company included in the Registration Statement, (b) at a date not
later than five (5) days prior to the Closing Date, there was any
change in the capital stock or long-term debt of the Company, or any
decrease in the stockholders' equity of the Company as compared with
amounts shown in the [September 30, 2006] balance sheet included in
the Registration Statement, other than as set forth in or
contemplated by the Registration Statement, or, if there was any
decrease, setting forth the amount of such decrease, and (c) during
the period from a specified date to a specified date not later than
five (5) days prior to the Closing Date, there was any decrease in
revenues, net earnings or net earnings per share of Common Stock, in
each case as compared with the corresponding period in the preceding
year and as compared with the corresponding period in the preceding
quarter, other than as set forth in or contemplated by the
Registration Statement, or, if there was any such decrease, setting
forth the amount of such decrease;
(iv) Stating that they have compared specific dollar amounts,
numbers of shares, percentages of revenues and earnings, statements
and other financial information pertaining to the Company set forth
in the Prospectus in each case to the extent that such amounts,
numbers, percentages, statements and information may be derived from
the general accounting records, including work sheets, of the
Company and excluding any questions requiring an interpretation by
legal counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the letter
and found them to be in agreement; and
(v) Statements as to such other matters incident to the
transaction contemplated hereby as you may reasonably request.
(f) At the Closing Date, the Representative shall have received a
certificate of the Company signed by the Chairman of the Board or the President
and the Chief Financial Officer of the Company, dated as of the Closing Date, to
the effect that, to the their knowledge, (i) the Company has performed all
covenants and agreements and complied with all conditions required by this
Agreement to be performed or complied with by the Company prior to and as of the
Closing Date; (ii) the conditions set forth in Section 4 hereof have been
satisfied as of such date; (iii) as of Closing Date, the representations and
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warranties of the Company set forth in Section 2 hereof are true and correct;
(iv) they have carefully examined the Registration Statement and the Prospectus
and, in their opinion (A) as of the Effective Date, the Registration Statement
and Prospectus did not include any untrue statement of a material fact and did
not 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 (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or otherwise required an
amendment to the Registration Statement or the Prospectus; and (iv) no stop
order suspending the effectiveness of the Registration Statement has been issued
and, to their knowledge, no proceedings for that purpose have been instituted or
are pending under the Securities Act. In addition, the Representative will have
received such other and further certificates of officers of the Company as the
Representative may reasonably request.
(g) At the Closing Date, the Representative shall have received a
certificate of the Company signed by the Secretary or Assistant Secretary of the
Company, dated as of the Closing Date, certifying (i) that the copies of the
by-laws and certificate of incorporation of the Company attached thereto are
true and complete, have not been modified and are in full force and effect, (ii)
that the resolutions relating to the public offering contemplated by this
Agreement are in full force and effect and have not been modified, (iii) all
correspondence between the Company or its counsel and the Commission, and (iv)
as to the incumbency of the officers of the Company. The documents referred to
in such certificate shall be attached to such certificate.
(h) Prior to and on the Closing Date, (i) there shall have been no
material adverse change or development involving a prospective material adverse
change in the condition or the business activities, financial or otherwise, of
the Company from the latest dates as of which such condition is set forth in the
Registration Statement and Prospectus, (ii) no action suit or proceeding, at law
or in equity, shall have been pending or threatened against the Company before
or by any court or federal or state commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may materially
adversely affect the business, operations or financial condition or income of
the Company, except as set forth in the Registration Statement and Prospectus,
(iii) no stop order shall have been issued under the Act and no proceedings
therefor shall have been initiated or threatened by the Commission, and (iv) the
Registration Statement and the Prospectus and any amendments or supplements
thereto shall contain all material statements which are required to be stated
therein in accordance with the Securities Act and the Regulations and shall
conform in all material respects to the requirements of the Securities Act and
the Regulations, and neither the Registration Statement nor the Prospectus nor
any amendment or supplement thereto shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(i) On the Closing Date, the Company shall have delivered to the
Representative executed copies of each of the Operative Documents.
(j) All proceedings taken in connection with the authorization, issuance
or sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to you and to Cozen X'Xxxxxx and you shall
have received from such counsel a favorable opinion, dated as of the Closing
Date, with respect to such of these proceedings as you may reasonably require.
On or prior to the Closing Date, counsel for the Underwriters shall have been
furnished such documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 4(j), or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or
conditions herein contained.
5. Indemnification.
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(a) Subject to the conditions set forth below and to the extent permitted
by law, the Company agrees to indemnify and hold harmless each of the
Underwriters and each of their respective directors, officers and employees and
each person, if any, who controls any such Underwriter (a "Controlling Person")
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, whether arising
out of any action between any of the Underwriters and the Company or between any
of the Underwriters and any third party or otherwise) to which they or any of
them may become subject under the Securities Act, the Exchange Act or any other
statute or at common law or otherwise or under the laws of foreign countries,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in (i) any Preliminary Prospectus, the Registration
Statement or the Prospectus (as from time to time each may be amended and
supplemented); (ii) in any post-effective amendment or amendments or any new
registration statement and prospectus in which is included securities of the
Company issued or issuable upon exercise of the Representative's Warrants; or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to an Underwriter by or on behalf of such
Underwriter expressly for use in any Preliminary Prospectus, the Registration
Statement or Prospectus, or any amendment or supplement thereof. With respect to
any untrue statement or omission or alleged untrue statement or omission made in
the Preliminary Prospectus, the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter to the extent that any loss,
liability, claim, damage or expense of such Underwriter results from the fact
that a copy of the Prospectus was not given or sent to the person asserting any
such loss, liability, claim or damage at or prior to the written confirmation of
sale of the Securities to such person as required by the Act and the
Regulations, and if the untrue statement or omission has been corrected in the
Prospectus, unless such failure to deliver the Prospectus was a result of
non-compliance by the Company with its obligations under Section 3 hereof. The
Company agrees promptly to notify the Representative of the commencement of any
litigation or proceedings against the Company or any of its officers, directors
or controlling persons in connection with the issue and sale of the Securities
or in connection with the Registration Statement or Prospectus.
(b) If any action is brought against an Underwriter or a Controlling
Person in respect of which indemnity may be sought against the Company pursuant
to Section 5(a), such Underwriter or Controlling Person shall promptly notify
the Company in writing of the institution of such action and the Company shall
assume the defense of such action, including the employment and fees of counsel
(subject to the reasonable approval of such Underwriter) and payment of actual
expenses. Such Underwriter or Controlling Person shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or Controlling Person unless
(i) the employment of such counsel at the expense of the Company shall have been
authorized in writing by the Company in connection with the defense of such
action, or (ii) the Company shall not have employed counsel to have charge of
the defense of such action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
the reasonable fees and expenses of not more than one (1) additional firm of
attorneys selected by the Underwriter and/or Controlling Person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein, if
the Underwriter or Controlling Person shall assume the defense of such action as
provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably withheld.
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(c) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company, its directors, officers and employees and agents who
control the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense described in the foregoing indemnity from the Company to the
several Underwriters, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in any Preliminary
Prospectus, the Registration Statement or Prospectus or any amendment or
supplement thereto or in any application, in reliance upon, and in strict
conformity with, written information furnished to the Company with respect to
such Underwriter by or on behalf of the Underwriter expressly for use in such
Preliminary Prospectus, the Registration Statement or Prospectus or any
amendment or supplement thereto or in any such application or in any
"prospectus" (within the meaning of the Securities Act) or other offering
material used by the Underwriters in the offering or sale of the Units other
than the most recent Prospectus. In case any action shall be brought against the
Company or any other person so indemnified based on any Preliminary Prospectus,
the Registration Statement or Prospectus or any amendment or supplement thereto
or any application, and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall have the
rights and duties given to the several Underwriters by the provisions of Section
5(b).
(d) In order to provide for just and equitable contribution under the
Securities Act in any case in which (i) any person entitled to indemnification
under this Section 5 makes claim for indemnification pursuant hereto but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case, or (ii) contribution under the Securities Act, the Exchange Act or
otherwise may be required on the part of any such person in circumstances for
which indemnification is provided under this Section 5, then, and in each such
case, the Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial offering price appearing
thereon and the Company is responsible for the balance; provided, that, no
person guilty of a 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. Notwithstanding the
provisions of this Section 5(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Public
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay in respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section, each director, officer and employee of
an Underwriter or the Company, as applicable, and each person, if any, who
controls an Underwriter or the Company, as applicable, within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
the Underwriters or the Company, as applicable.
(e) Within fifteen (15) days after receipt by any party to this Agreement
(or its representatives) of notice of the commencement of any action, suit or
proceeding, such party will, if a claim for contribution in respect thereof is
to be made against another party (the "Contributing Party"), notify the
Contributing Party of the commencement thereof, but the omission to so notify
the contributing party will not relieve it from any liability which it may have
to any other party other than for contribution hereunder. In case any such
action, suit or proceeding is brought against any party, and such party notifies
a Contributing Party or its representatives of the commencement thereof within
the aforesaid fifteen (15) days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such Contributing Party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party
-21-
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution without the written
consent of such Contributing Party. The contribution provisions contained in
this Section are intended to supersede, to the extent permitted by law, any
right to contribution under the Securities Act, the Exchange Act or otherwise
available. The Underwriters' obligations to contribute pursuant to this Section
5(e) are several and not joint.
6. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligations to purchase the Firm Units and if the number of the Firm Units with
respect to which such default relates does not exceed in the aggregate ten
percent (10%) of the number of Firm Units that all Underwriters have agreed to
purchase hereunder, then such Firm Units to which the default relates shall be
purchased by the non-defaulting Underwriters in proportion to their respective
commitments hereunder.
(b) In the event that the default addressed in Section 6(a) above relates
to more than ten percent (10%) of the Firm Units, you may in your discretion
arrange for yourself or for another party or parties to purchase such Firm Units
to which such default relates on the terms contained herein. If within one (1)
business day after such default relating to more than ten percent (10%) of the
Firm Units you do not arrange for the purchase of such Firm Units, then the
Company shall be entitled to a further period of one (1) business day within
which to procure another party or parties satisfactory to you to purchase said
Firm Units on such terms. In the event that neither you nor the Company arrange
for the purchase of the Firm Units to which a default relates as provided in
this Section 6, this Agreement may be terminated by you or the Company without
liability on the part of the Company (except as provided in Sections 3(k) and 5
hereof) or the several Underwriters (except as provided in Section 5 hereof);
provided, however, that nothing herein shall relieve a defaulting Underwriter of
its liability, if any, to the other several Underwriters and to the Company for
damages occasioned by its default hereunder.
(c) In the event that the Firm Units to which the default relates are to
be purchased by the non-defaulting Underwriters, or are to be purchased by
another party or parties as aforesaid, you or the Company shall have the right
to postpone the Closing Date for a reasonable period, but not in any event
exceeding five (5) business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment to the Registration Statement or the Prospectus that in the
opinion of counsel for the Underwriters may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 6 with like effect as if it had originally been a party to
this Agreement with respect to such Securities.
7. Representations and Agreements to Survive Delivery. Except as the
context otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations, warranties
and agreements at the Closing Dates and such representations, warranties and
agreements of the Underwriters and Company, including the indemnity agreements
contained in Section 5 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter,
the Company or any Controlling Person, and shall survive the issuance and
delivery of the Securities to the several Underwriters until the earlier of the
expiration of any applicable statute of limitations and the seventh (7th)
anniversary of the later of the Closing Date at which time the representations,
warranties and agreements shall terminate and be of no further force and effect.
-22-
8. Effective Date of This Agreement and Termination.
(a) This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
(b) You shall have the right to terminate this Agreement at any time prior
to any Closing Date, (i) if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, general securities markets in the United States; or
(ii) if trading on the New York Stock Exchange, the American Stock Exchange, the
Boston Stock Exchange or on the NASD OTC Bulletin Board (or successor trading
market) shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been fixed, or maximum ranges for prices for securities shall have been required
on the NASD OTC Bulletin Board or by order of the Commission or any other
government authority having jurisdiction, or (iii) if the United States shall
have become involved in a new war or an increase in major hostilities, or (iv)
if a banking moratorium has been declared by a New York State or federal
authority, or (v) if a moratorium on foreign exchange trading has been declared
which materially adversely impacts the United States securities market, or (vi)
if the Company shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which,
whether or not such loss shall have been insured, will, in your opinion, make it
inadvisable to proceed with the delivery of the Units, or (vii) if any of the
Company's representations, warranties or covenants hereunder are breached, and
if not otherwise qualified by materiality, there is a material adverse effect or
(viii) if the Representative shall have become aware after the date hereof of
such a material adverse change in the conditions or prospects of the Company, or
such adverse material change in general market conditions, including without
limitation as a result of terrorist activities after the date hereof, as in the
Representative's judgment would make it impracticable to proceed with the
offering, sale and/or delivery of the Units or to enforce contracts made by the
Underwriters for the sale of the Units.
(c) In the event that this Agreement shall not be carried out for any
reason whatsoever not reasonably attributable to the Underwriters, within the
time specified herein or any extensions thereof pursuant to the terms herein,
the obligations of the Company to pay the out of pocket expenses related to the
transactions contemplated herein shall be governed by Section 3(d) hereof.
(d) Notwithstanding any contrary provision contained in this Agreement,
any election hereunder or any termination of this Agreement, and whether or not
this Agreement is otherwise carried out, the provisions of Section 5 shall not
be in any way effected by, such election or termination or failure to carry out
the terms of this Agreement or any part hereof.
9. Miscellaneous.
(a) All communications hereunder, except as herein otherwise specifically
provided, shall be in writing and shall be mailed, delivered or telecopied and
confirmed and shall be deemed given when so delivered or telecopied and
confirmed or if mailed, two (2) days after such mailing.
If to the Representative:
XXXXXX XXXXX SECURITIES, INC.
000 Xxxxx Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Chief Executive Officer
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Copy to: COZEN X'XXXXXX
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xx Xxxxxxx, Esq.
If to the Company:
BIOPURE CORPORATION
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Zafiris Zafirelis, President & Chief Executive Officer
Copy to: Xxxx Xxxxx, Senior VP & General Counsel
(b) The headings contained herein are for the sole purpose of convenience
of reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
(c) This Agreement may only be amended by a written instrument executed by
each of the parties hereto.
(d) This Agreement (together with the other agreements and documents being
delivered pursuant to or in connection with this Agreement) constitute the
entire agreement of the parties hereto with respect to the subject matter hereof
and thereof, and supersede all prior agreements and understandings of the
parties, oral and written, with respect to the subject matter hereof.
(e) This Agreement shall inure solely to the benefit of and shall be
binding upon the Representative, the Underwriters, the Company and the
Controlling Persons, directors and officers referred to in Section 5 hereof, and
their respective successors, legal representatives and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provisions
herein contained.
(f) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving effect to
conflict of laws. The Company hereby agrees that any action, proceeding or claim
against it arising out of, relating in any way to this Agreement shall be
brought and enforced in the courts of the State of New York of the United States
of America for the Southern District of New York, and irrevocably submits to
such jurisdiction, which jurisdiction shall be exclusive. The Company hereby
waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any such process or summons to be served upon
the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it at
the address set forth in Section 9(a) hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action,
proceeding or claim. The Company agrees that the prevailing party(ies) in any
such action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys' fees and expenses relating to such action or proceeding
and/or incurred in connection with the preparation therefor.
(g) This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which shall be deemed
to be an original, but all of which taken together shall constitute one and the
same agreement, and shall become effective when one or more counterparts has
been signed by each of the parties hereto and delivered to each of the other
parties hereto.
-24-
(h) The failure of any of the parties hereto to at any time enforce any of
the provisions of this Agreement shall not be deemed or construed to be a waiver
of any such provision, nor to in any way effect the validity of this Agreement
or any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement
shall be effective unless set forth in a written instrument executed by the
party or parties against whom or which enforcement of such waiver is sought; and
no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
(i) Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing correctly sets forth the understanding between the
Underwriters and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
BIOPURE CORPORATION
By: _____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
Accepted on the date first above written.
XXXXXX XXXXX SECURITIES, INC.
Acting severally on behalf of itself and as one
of the Representative of the several Underwriters
named in Schedule I annexed hereto
By: _______________________
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
[UNDERWRITING AGREEMENT]
SCHEDULE I
BIOPURE CORPORATION.
[_____] FIRM UNITS
UNDERWRITER NUMBER OF FIRM UNITS TO BE PURCHASED
Xxxxxx Xxxxx Securities, Inc.
Total
