Exhibit 1.1
______________ Shares
IMARX THERAPEUTICS, INC.
Common Stock
UNDERWRITING AGREEMENT
____________, 2006
CIBC World Markets Corp.
Xxxxxxxxx & Company, Inc.
First Albany Capital Inc.
As Representatives of the Several
Underwriters named in Schedule I hereto
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ImaRx Therapeutics, Inc., 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 Representatives (the
"REPRESENTATIVES"), an aggregate of ________ shares (the "FIRM SHARES") of the
Company's common stock, par value $0.0001 per share (the "COMMON STOCK"). The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional ___________ shares (the "OPTION SHARES") of Common
Stock from the Company for the purpose of covering over-allotments in connection
with the sale of the Firm Shares. The Firm Shares and the Option Shares are
collectively called the "SHARES."
The Company has prepared and 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 (No. 333-_____), including a preliminary
prospectus relating to the Shares, and such amendments thereof as may have been
required to the date of this Agreement. Copies of such Registration Statement
(including all amendments thereof) and of the related Preliminary Prospectus (as
hereinafter defined) have heretofore been delivered by the Company to you. The
term "PRELIMINARY PROSPECTUS" means any preliminary prospectus included at any
time as a part of the Registration Statement or amendment thereto 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 and financial schedules thereto),
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
filed with the Commission pursuant to 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 Rules is relied on, the term Prospectus shall also include the final
prospectus filed with the Commission pursuant to and within the time limits
described in Rule 424(b) of the Rules.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Statutory Prospectus
(as defined below) and the Prospectus, as soon after the Effective Date and the
date of this Agreement as the Representatives deem advisable. The Company hereby
confirms that the Underwriters and dealers have been authorized to distribute or
cause to be distributed each Preliminary Prospectus, and each Issuer Free
Writing Prospectus (as hereinafter defined) and are authorized to distribute 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) 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 share (the "INITIAL PRICE"), the
number of Firm Shares set forth opposite the name of such Underwriter under the
column "Number of Firm Shares to be Purchased" on Schedule I to this Agreement,
subject to adjustment in accordance with Section 8 hereof.
(b) The Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares at the
Initial Price. The number of Option Shares to be purchased by each Underwriter
shall be the same percentage (adjusted by the Representatives to eliminate
fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the Firm Shares
by the Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and from time to time thereafter within
30 days after the date of this Agreement, in each case upon written, facsimile
or telegraphic notice, or verbal or telephonic notice confirmed by written,
facsimile or telegraphic notice, by the Representatives to the Company no later
than 12:00 noon, New York City time, on the business day before the Firm Shares
Closing Date or at least two business days before the Option Shares Closing Date
(as defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm Shares
Closing Date) of such purchase.
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(c) Payment of the purchase price for, and delivery of certificates for,
the Firm Shares shall be made at the offices of CIBC World Markets Corp., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on
the fourth business day following the date of this Agreement or at such time on
such later date, not later than ten (10) business days after the date of this
Agreement, as shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "FIRM SHARES CLOSING
DATE"). In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, payment of the purchase price, and delivery of
the certificates, for such Option Shares shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each date of delivery as specified in the notice from the
Representatives to the Company (such time and date of delivery and payment are
called the "OPTION SHARES CLOSING DATE"). The Firm Shares Closing Date and any
Option Shares Closing Date are called, individually, a "CLOSING DATE" and,
together, the "CLOSING DATES."
(d) Payment shall be made to the Company by wire transfer of immediately
available funds or by certified or official bank check or checks payable in New
York Clearing House (same day) funds drawn to the order of the Company, against
electronic delivery of the respective certificates to the Representatives for
the respective accounts of the Underwriters of certificates for the Shares to be
purchased by them.
(e) Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section 1(b) and shall be delivered electronically by or on behalf of the
Company to the Representatives through the facilities of the Depository Trust
Company ("DTC")
for the account of such Underwriter.
2. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Firm Shares Closing Date and as of each Option Shares Closing Date (if any), as
follows:
(a) On the Effective Date, the Registration Statement complied, and on the
date of the Prospectus, the date any post-effective amendment to the
Registration Statement becomes effective, the date any supplement or amendment
to the Prospectus is filed with the Commission and each Closing Date, the
Registration Statement, the Prospectus (and any amendment thereof or supplement
thereto) will comply, in all material respects, with the requirements of the
Securities Act and the Rules and the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and the rules and regulations of the Commission
thereunder. The Registration Statement did not, as of the Effective Date,
contain any 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 not misleading; and on the Effective Date and the other dates referred
to above neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading.
When the Preliminary Prospectus was filed with the Commission and when any
amendment thereof or supplement thereto was filed with the Commission, such
Preliminary
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Prospectus as amended or supplemented complied in all material respects with the
applicable provisions of the Securities Act and the Rules and did not contain
any 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 the light of the circumstances under which they were made, not
misleading. If applicable, each Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
Notwithstanding the foregoing, none of the representations and warranties in
this paragraph 2(a) shall apply to statements in, or omissions from, the
Registration Statement or the Prospectus made in reliance upon, and in
conformity with, information herein or otherwise furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus. For purposes of this Agreement,
including the preceding sentence and Section 5(b), the Company acknowledges that
the only information furnished in writing by the Representatives on behalf of
the several Underwriters for use in the Registration Statement or the Prospectus
is the statements contained in the [ ] and [ ] paragraphs under the caption
"UNDERWRITING" in the Prospectus (collectively, the "UNDERWRITER INFORMATION").
(b) As of the Applicable Time (as hereinafter defined below), neither (i)
the Issuer Free Writing Prospectus(es) (as defined below) issued at or prior to
the Applicable Time, and the Statutory Prospectus (as defined below), all
considered together (collectively, the "GENERAL DISCLOSURE PACKAGE"), nor (ii)
any individual Issuer Free Writing Prospectus when considered together with the
General Disclosure Package, included any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements in or omissions from
any prospectus included in the General Disclosure Package made in reliance upon
and in conformity with the Underwriter Information.
Each Issuer Free Writing Prospectus, including any electronic road show
(including without limitation any "bona fide electronic road show" as defined in
Rule 433(h)(5) under the Securities Act) (each, a "ROAD SHOW") (i) is identified
in Schedule III hereto and (ii) complied when issued, and as the same may have
been amended or supplemented complies, in all material respects with the
requirements of the Securities Act and the Rules and the Exchange Act and the
rules and regulations of the Commission thereunder.
The Company has made at least one version of the Road Show available
without restriction by means of graphic communication to any person, including
any potential investor in the Shares (and if there is more than one version of a
Road Show for the offering that is a written communication, the version
available without restriction was made available no later than the other
versions).
As used in this Section and elsewhere in this Agreement:
"APPLICABLE TIME" means ___:00 [a/p]m (Eastern time) on the date of this
Underwriting Agreement.
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"STATUTORY PROSPECTUS" as of any time means the Preliminary Prospectus
relating to the Shares that is included in the Registration Statement
immediately prior to the Applicable Time. For purposes of this definition,
information contained in a form of prospectus that is deemed retroactively
to be a part of the Registration Statement pursuant to Rule 430A of the
Rules shall be considered to be included in the Statutory Prospectus as of
the actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b).
"ISSUER FREE WRITING PROSPECTUS" means each "FREE WRITING PROSPECTUS" (as
defined in Rule 405 of the Rules) prepared by or on behalf of the Company
or used or referred to by the Company in connection with the offering of
the Shares, including, without limitation, each Road Show.
(c) The Registration Statement is effective under the Securities Act and no
stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of any Preliminary Prospectus, the
Prospectus or any "free writing prospectus", as defined in Rule 405 under the
Rules, has been issued by the Commission and, to the Company's knowledge, no
proceedings for that purpose have been instituted or are threatened under the
Securities Act. Any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) of the Rules has been or will be made in the manner and
within the time period required by such Rule 424(b). Any material required to be
filed by the Company pursuant to Rule 433(d) of the Rules has been or will be
made in the manner and within the time period required by such Rules.
(d) Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Shares or until any earlier date that the Company notified or notifies the
Representative as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, the Statutory Prospectus or
the Prospectus. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based on and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein.
If at any time following issuance of an Issuer Free Writing Prospectus
there occurred an event or development as a result of which such Issuer Free
Writing Prospectus conflicted with the information contained in the Registration
Statement, the Statutory Prospectus or the Prospectus or included an 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, in the
light of the circumstances prevailing at the subsequent time, not misleading,
the Company has promptly notified the Representative and has promptly amended or
supplemented, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
(e) The financial statements of the Company (including all notes and
schedules thereto) included in the Registration Statement, the Statutory
Prospectus and Prospectus present fairly in all material respects the financial
position of the Company at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company for the periods specified;
and such financial statements and related schedules and notes thereto, and the
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unaudited financial information filed with the Commission as part of the
Registration Statement, have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods involved
(provided that unaudited financial statements are subject to normal recurring
year-end audit adjustments that are not expected to be material in the aggregate
and do not contain all footnotes required by generally accepted accounting
principles). The summary and selected financial data included in the Statutory
Prospectus and Prospectus present fairly in all material respects the
information shown therein as at the respective dates and for the respective
periods specified and have been presented on a basis consistent with the
consolidated financial statements set forth in the Prospectus and other
financial information.
(f) Ernst & Young LLP (the "AUDITOR"), whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the periods
covered by their reports, were independent registered public accountants as
required by the Securities Act and the Rules.
(g) The Company is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. With the exception of ImaRx
Oncology, Ltd. and ImaRx Europe Limited (each, a "SUBSIDIARY," and together, the
"SUBSIDIARIES"), the Company has no subsidiary or subsidiaries and does not
control, directly or indirectly, any corporation, partnership, joint venture,
association or other business organization. Each of the Company and the
Subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of the business
conducted by it or location of the assets or properties owned, leased or
licensed by it requires such qualification, except for such jurisdictions where
the failure to so qualify individually or in the aggregate would not have a
material adverse effect on the assets, properties, condition, financial or
otherwise, or in the results of operations, the existing or planned business
operations or business prospects of the Company and the Subsidiaries considered
as a whole (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.
(h) The Company has all requisite corporate power and authority, and all
necessary authorizations, approvals, consents, orders, licenses, certificates
and permits of and from all governmental or regulatory bodies or any other
person or entity (collectively, the "PERMITS"), to own, lease and license its
assets and properties and conduct its current business activities, including,
without limitation, all Permits required by the United States Food and Drug
Administration (the "FDA") or any federal, state or foreign agencies or bodies
engaged in the regulation of drugs, biologics, medical devices, or biohazardous
materials, all of which are valid and in full force and effect, except where the
lack of such Permits, individually or in the aggregate, would not have a
Material Adverse Effect. Except as disclosed in the Registration Statement, the
Statutory Prospectus and the Prospectus, 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, the Exchange Act, the rules of the National
Association of Securities Dealers, Inc. ("NASD") and state and foreign Blue Sky
laws, no other
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Permits are required to enter into, deliver and perform this Agreement and to
issue and sell the Shares.
(i) At (i) the time of filing the Registration Statement, and (ii) the date
hereof, the Company was not and is not an "ineligible issuer," as defined in
Rule 405 of the Rules, including (but not limited to) in the preceding three
years not having been convicted of a felony or misdemeanor or having been made
the subject of a judicial or administrative decree or order as described in Rule
405 of the Rules.
(j) The Company owns or possesses legally enforceable rights to use all
patents, patent rights, inventions, trademarks, trade names, service marks,
copyrights, licenses, know-how and other similar rights and proprietary
knowledge (collectively, "INTANGIBLES") necessary for the conduct of its
business. Except as disclosed in the Registration Statement, the Statutory
Prospectus and the Prospectus, the Company has not received any notice of, or is
not aware of, any infringement of or conflict with asserted rights of others
with respect to any Intangibles. The Company has duly and properly filed or
caused to be filed with the United States Patent and Trademark Office (the
"PTO") all patent applications owned by the Company (the "COMPANY PATENT
APPLICATIONS"), and has caused to be filed with applicable foreign and
international patent authorities those Company Patent Applications that the
Company deems appropriate. The Company has complied with the PTO's duty of
candor and disclosure for the Company Patent Applications and has made no
material misrepresentation in the Company Patent Applications. Except as
disclosed in the Registration Statement, the Statutory Prospectus and the
Prospectus, the Company is not aware of any information not called to the
attention of the PTO or similar foreign authority which would preclude the grant
of a patent for the Company Patent Applications. The Company has no knowledge of
any information which would preclude the Company from having clear title to the
Company Patent Applications.
(k) The Company owns no real property in fee simple and has good and
marketable title to all personal property owned by it, in each case free and
clear of all liens, encumbrances, claims, security interests and defects, except
as are disclosed in the Registration Statement, the Statutory Prospectus and the
Prospectus or do not materially affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property
by the Company. All property held under lease by the Company is held by it under
valid, existing and enforceable leases, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are not
material and do not materially interfere with the use made or proposed to be
made of such property by the Company. Subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus: (i)
there has not been any Material Adverse Effect; (ii) neither the Company nor any
of its subsidiaries has sustained any loss or interference with its assets,
businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree which has a Material Adverse Effect; and (iii) since the date of
the latest balance sheet included in the Registration Statement and the
Prospectus, except as disclosed in the Registration Statement, the Statutory
Prospectus and the Prospectus, the Company has not (A) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed money,
except such issuances effected or liabilities or obligations incurred in the
ordinary course of business, (B) entered into any material transaction not in
the ordinary course of business or
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(C) declared or paid any cash dividend or made any cash distribution on any
shares of its stock or redeemed, purchased or otherwise acquired or agreed to
redeem, purchase or otherwise acquire any shares of its capital stock.
(l) There is no document, contract or other agreement required to be
described in the Registration Statement, the Statutory Prospectus or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required by the Securities Act or Rules. Each
description of a contract, document or other agreement in the Registration
Statement, the Statutory Prospectus or the Prospectus accurately reflects in all
material respects the terms of the underlying contract, document or other
agreement. Each contract, document or other agreement described in the
Registration Statement, the Statutory Prospectus or the Prospectus or listed in
the Exhibits to the Registration Statement is in full force and effect and is
valid and enforceable by and against the Company in accordance with its terms.
The Company is not nor, to the Company's knowledge, is any other party in
default in the observance or performance of any term or obligation to be
performed by it under any such agreement, and no event has occurred which with
notice or lapse of time or both would constitute such a default, in any such
case which default or event, individually or in the aggregate, would have a
Material Adverse Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the Company of
any other agreement or instrument to which the Company is a party or by which
Company or its properties or business is bound which default or event,
individually or in the aggregate, has or would have a Material Adverse Effect.
(m) The statistical and market related data included in the Registration
Statement, the Statutory Prospectus or the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate.
(n) The Company is not in violation of any term or provision of its charter
or bylaws or of any franchise, license, permit, judgment, decree, order,
statute, rule or regulation, where such violation, individually or in the
aggregate, has or would have a Material Adverse Effect.
(o) This Agreement has been duly authorized, executed and delivered by the
Company.
(p) Neither the execution, delivery and performance of this Agreement by
the Company nor the consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the Company of the
Shares) will give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company pursuant to the terms
of, any indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which the Company or its properties or
business is bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation applicable to the Company, or violate any provision
of the charter or bylaws of the Company, except for such consents or waivers
which have already been obtained and are in full force and effect.
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(q) The Company has the authorized and outstanding capital stock as set
forth under the caption "CAPITALIZATION" in the Statutory Prospectus and the
Prospectus. The certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the Company. All of the
issued and outstanding shares of Common Stock have been duly and validly issued
and are fully paid and nonassessable. Except as disclosed in the Registration
Statement, the Statutory Prospectus and the Prospectus, there are no statutory
preemptive or other similar rights to subscribe for or to purchase or acquire
any shares of Common Stock of the Company or any of its subsidiaries or any such
rights pursuant to its Certificate of Incorporation or bylaws or any agreement
or instrument to or by which the Company is a party or bound. The Shares, when
issued and sold pursuant to this Agreement, will be duly and validly issued,
fully paid and nonassessable, and none of them will be issued in violation of
any preemptive or other similar right. Except as disclosed in the Registration
Statement, the Statutory Prospectus and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there is no
commitment, plan or arrangement to issue, any share of stock of the Company or
any security convertible into, or exercisable or exchangeable for, such stock.
The Common Stock and the Shares conform in all material respects to all
statements in relation thereto contained in the Registration Statement and the
Statutory Prospectus and the Prospectus.
(r) No holder of any security of the Company has any right, which has not
been waived, to have any security owned by such holder included in the
Registration Statement or to demand registration of any security owned by such
holder for a period of 180 days after the date of this Agreement. Each director
and executive officer of the Company and each stockholder of the Company listed
on Schedule II hereto has delivered to the Representatives his written lock-up
agreement in the form attached to this Agreement as Exhibit A hereto ("LOCK-UP
AGREEMENT").
(s) There are no legal or governmental proceedings pending to which the
Company is a party or of which any property of the Company is the subject that,
if determined adversely to the Company, could individually or in the aggregate
have a Material Adverse Effect; and, to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(t) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this Agreement
and the issuance and sale of the Shares by the Company.
(u) 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 has or 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 any of such executive officers
has an intention to terminate his or her employment with the Company.
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(v) 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, the Statutory Prospectus and the
Prospectus.
(w) 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
Shares.
(x) The Company has filed all U.S. federal ("FEDERAL"), state, local and
foreign tax returns that are required to be filed through the date hereof, or
has received timely extensions thereof, which returns are true and correct in
all material respects, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same are material and have
become due. There are no tax audits or investigations pending, which if
adversely determined would have a Material Adverse Effect; nor is the Company
aware of any material proposed additional tax assessments against the Company.
(y) The Shares have been duly authorized for quotation on the National
Association of Securities Dealers Automated Quotation ("NASDAQ") National Market
System subject to official Notice of Issuance. A registration statement has been
filed on Form 8-A pursuant to Section 12 of the Exchange Act, which registration
statement complies in all material respects with the Exchange Act.
(z) The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or the quotation of the Common Stock on the Nasdaq National Market, nor has
the Company received any notification that the Commission or the Nasdaq National
Market is contemplating terminating such registration or quotation.
(aa) The books, records and accounts of the Company accurately and fairly
reflect 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 and (iii) access to
assets is permitted only in accordance with management's general or specific
authorization.
(bb) The Company is actively taking steps to establish disclosure controls
and procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which: (i) are designed to ensure that material information relating to the
Company is made known to the Company's principal executive officer and its
principal financial officer by others within the Company, particularly during
the periods in which the periodic reports required under the Exchange Act are
required to be prepared; (ii) provide for the periodic evaluation of the
effectiveness of such disclosure controls and procedures at the end of the
periods in which the
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periodic reports are required to be prepared; and (iii) are effective in all
material respects to perform the functions for which they were established.
(cc) To its knowledge, the Company is not aware of any (i) significant
deficiency in the design or operation of its internal control over financial
reporting that could adversely affect the Company's ability to record, process,
summarize and report financial data or (ii) fraud, whether or not material, that
involves management or other employees who have a role in the Company's internal
controls over financial reporting.
(dd) Except as described in the Statutory Prospectus and the Prospectus and
as pre-approved in accordance with the requirements set forth in Section 10A of
the Exchange Act, since June 1, 2005 the Auditor has not been engaged by the
Company to perform any "prohibited activities" (as defined in Section 10A of the
Exchange Act).
(ee) Except as described in the Statutory Prospectus and the Prospectus,
there are no material off-balance sheet arrangements (as defined in Item 303 of
Regulation S-K) that have or are reasonably likely to have a material current or
future effect on the Company's financial condition, revenues or expenses,
changes in financial condition, results of operations, liquidity, capital
expenditures or capital resources.
(ff) The Company's Board of Directors has validly appointed an audit
committee whose composition satisfies the requirements of Rule 4350(d)(2) of the
Rules of the National Association of Securities Dealers (the "NASD RULES") and
the Board of Directors and/or the audit committee has adopted a charter that
satisfies the requirements of Rule 4350(d)(1) of the NASD Rules. The audit
committee has reviewed the adequacy of its charter within the past twelve
months.
(gg) The Company is actively taking steps to ensure that it will be in
compliance with all other applicable provisions of the Xxxxxxxx-Xxxxx Act of
2002, any related rules and regulations promulgated by the Commission and
corporate governance requirements under the NASD Rules upon the effectiveness of
such provisions and has no reason to believe that it will not be able to comply
with such provisions at the time of effectiveness.
(hh) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the business in which it is engaged and proposes to engage after
giving effect to the transactions described in the Statutory Prospectus and the
Prospectus; all policies of insurance and fidelity or surety bonds insuring the
Company or the Company's business, assets, employees, officers and directors are
in full force and effect; the Company is in compliance with the terms of such
policies and instruments in all material respects; and the Company has no reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that is not
materially greater than the current cost. The Company has not been denied any
insurance coverage which it has sought or for which it has applied.
(ii) Each approval, consent, order, authorization, designation, declaration
or filing of, by or with any regulatory, administrative or other governmental
body necessary in connection
11
with the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated, required to be obtained or
performed by the Company as of the Applicable Time (except such additional steps
as may be required by the NASD or may be necessary to qualify the Shares for
public offering by the Underwriters under the state securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(jj) There are no affiliations with the NASD among the Company's officers,
directors or, to the best knowledge of the Company, any five percent or greater
stockholder of the Company, except as set forth in the Registration Statement or
otherwise disclosed in writing to the Representatives.
(kk) (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
LAW") 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, except for where noncompliance could not reasonably
be expected to have a Material Adverse Effect; (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) to the Company's
knowledge, 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.) ("CERCLA") 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 CERCLA.
(ll) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company, in the course of which the Company identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect.
(mm) The Company is not, and after giving effect to the offering and sale
of the Shares and the application of proceeds thereof as described in the
Statutory Prospectus and the Prospectus, will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT").
(nn) Neither the Company nor any other person associated with or acting on
behalf of the Company including, without limitation, any director or officer,
or, to the Company's knowledge, any agent or employee of the Company or its
subsidiaries, has, directly or indirectly, while acting on behalf of the Company
or its subsidiaries (i) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity;
(ii) made any unlawful payment to foreign or domestic government officials or
12
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
(oo) 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.
(pp) Except for the issuance of an aggregate of 2,835,000 shares of Series
F Preferred Stock in April and May 2006, 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 option plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(qq) 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.
(rr) None of the Company, its directors or its officers has distributed or
will distribute prior to the later of (i) the Firm Shares Closing Date, or the
Option Shares Closing Date, and (ii) completion of the distribution of the
Shares, any offering material in connection with the offering and sale of the
Shares other than any Preliminary Prospectus, the Prospectus, the Registration
Statement and other materials, if any, permitted by the Securities Act and
consistent with Section 3(d) below.
(ss) Except to the extent disclosed in the Registration Statement and the
Prospectus, the clinical, pre-clinical and other trials, studies and tests
conducted by or on behalf of, or sponsored by, the Company or in which the
Company has participated, that are described in the Registration Statement and
the Prospectus were and, if still pending, are being conducted in compliance
with experimental protocols, procedures and controls pursuant to accepted
professional scientific standards and applicable local, state and federal laws,
rules, regulations and guidance. The descriptions in the Registration Statement
and Prospectus of the results of such trials, studies and tests are accurate and
complete in all material respects and fairly present the data derived from such
trials, studies and tests, and the Company has no knowledge of any other trials,
studies or tests the results of which are materially inconsistent with or
otherwise materially call into question the results described or referred to in
the Registration Statement and
13
Prospectus. The Company has operated and currently is in compliance in all
material respects with applicable statutes and implementing regulations
administered or enforced by the FDA, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect. Except to the
extent disclosed in the Registration Statement and the Prospectus, the Company
has not received any notices or other correspondence from the FDA or any other
governmental agency requiring the termination, suspension or modification of any
clinical trials or pre-clinical studies or tests that are described in the
Registration Statement or Prospectus or the results of which are referred to in
the Registration Statement or Prospectus. In addition, to the knowledge of the
Company the descriptions in the Registration Statement and the Prospectus of
trials conducted by Xxxxxx Laboratories or its agents are accurate and complete
in all material respects and no facts have come to the attention of the Company
that lead the Company to believe that such trials were not conducted in
compliance with applicable laws.
(tt) Neither Subsidiary has any operations or any material liabilities
except for such liabilities as are reflected in the consolidated financial
statements included in the Prospectus.
3. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall
have been received by the Representatives and the Prospectus shall have been
timely filed with the Commission in accordance with Section 4(a) of this
Agreement and any material required to be filed by the Company pursuant to Rule
433(d) of the Rules shall have been timely filed with the Commission in
accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any "free writing prospectus", as defined in Rule
405 of the Rules, shall have been or shall be in effect and no order suspending
the effectiveness of the Registration Statement shall be in effect and no
proceedings for such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of the Commission
and the Representatives. If the Company has elected to rely upon Rule 430A, Rule
430A information previously omitted from the effective Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the prescribed time period and the Company shall
have provided evidence satisfactory to the Underwriters of such timely filing,
or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A.
(c) The representations and warranties of the Company contained in this
Agreement and in the certificates delivered pursuant to Section 3(d) shall be
true and correct when made and on and as of each Closing Date as if made on such
date. The Company shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by them at or before such Closing Date.
14
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date, of
the chief executive or chief operating officer and the chief financial officer
or chief accounting officer of the Company in their representative capacities to
the effect that: (i) the representations, warranties and agreements of the
Company in this Agreement were true and correct when made and are true and
correct as of such Closing Date; (ii) the Company has performed all covenants
and agreements and satisfied all conditions contained herein required to be
performed or satisfied by it at or prior to the Closing Date; (iii) they have
carefully examined the Registration Statement, the Prospectus, the General
Disclosure Package, and any individual Issuer Free Writing Prospectus and, in
their opinion (A) as of the Effective Date the Registration Statement and
Prospectus did not include, and as of the Applicable Time, neither (i) the
General Disclosure Package, nor (ii) any individual Issuer Free Writing
Prospectus, when considered together with the General Disclosure Package,
included, 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, the Statutory Prospectus 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.
(e) The Representatives shall have received, (i) simultaneously with the
execution of this Agreement a signed letter from the Auditor addressed to the
Representatives and dated the date of this Agreement, in form and substance
reasonably satisfactory to the Representatives, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Statutory Prospectus, and (ii) on each such Closing
Date, a signed letter from the Auditor addressed to the Representatives and
dated the date of such Closing Date(s), in form and substance reasonably
satisfactory to the Representatives containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement, and the Prospectus.
(f) The Representatives shall have received on each Closing Date from DLA
Xxxxx Xxxxxxx Xxxx Xxxx US LLP, counsel for the Company, an opinion, addressed
to the Representatives and dated such Closing Date, containing the opinions
substantially as set forth in EXHIBIT B attached hereto.
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
Representatives 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 Representatives.
15
(g) The Representatives shall have received on each Closing Date from
Xxxxxx Xxxxxx LLP, special counsel for the Company with respect to FDA
regulatory matters, an opinion, addressed to the Representatives and dated such
Closing Date, containing the opinions substantially as set forth in EXHIBIT C
attached hereto.
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
Representatives 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 Representatives.
(h) The Representatives shall have received on each Closing Date from the
Law Office Of Xxxx X. Xxxxxxxx, P.C., special counsel for the Company with
respect to trademark matters, an opinion, addressed to the Representatives and
dated such Closing Date, containing the opinions substantially as set forth in
EXHIBIT D attached hereto.
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
Representatives 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 Representatives.
(i) The Representatives shall have received on each Closing Date from
Xxxxxx Godward LLP, counsel for the Representatives, an opinion, addressed to
the Representatives and dated such Closing Date, containing the opinions
substantially as set forth in EXHIBIT E attached hereto.
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
Representatives 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 Representatives.
(j) All proceedings taken in connection with the sale of the Firm Shares
and the Option Shares as herein contemplated shall be reasonably satisfactory in
form and substance to the Representatives with respect to the Shares, the
Registration Statement and the Prospectus, and such other related matters, as
the Representatives may reasonably request, and the Company shall have furnished
to Underwriters counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
16
(k) The Representatives shall have received copies of the Lock-up
Agreements executed by each entity or person listed on SCHEDULE II hereto.
(l) The Shares shall have been approved for quotation on the NASDAQ
National Market, subject only to official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the
Representatives such further certificates or documents as the Representatives
shall have reasonably requested.
4. Covenants and other Agreements of the Company and the Underwriters.
(a) The Company covenants and agrees as follows:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective as promptly as
possible. The Company shall prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by the Rules. The Company will
file with the Commission all Issuer Free Writing Prospectuses in the time and
manner required under Rule 433(d).
(ii) The Company shall promptly advise the Representatives
in writing (A) when any post-effective amendment to the Registration Statement
shall have become effective or any supplement to the Prospectus shall have been
filed, (B) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information, (C)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or any "free writing prospectus", as defined in
Rule 405 of the Rules, or the institution or threatening of any proceeding for
that purpose and (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company shall not file any amendment of the Registration Statement
or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the
Company has furnished the Representatives a copy for its review prior to filing
and shall not file any such proposed amendment or supplement to which the
Representatives reasonably object. The Company shall use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to the
Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules)
is required to be delivered under the Securities Act and 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 Rules, the
Company promptly shall prepare
17
and file with the Commission, subject to the second sentence of paragraph (ii)
of this Section 4(a), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such compliance.
(iv) If at any time following issuance of an Issuer Free
Writing Prospectus there occurs an event or development as a result of which
such Issuer Free Writing Prospectus would conflict with the information
contained in the Registration Statement or would include an untrue statement of
a material fact or would omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances prevailing at the subsequent time, not misleading, the Company
will promptly notify the Representatives and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
(v) The Company shall make generally available to its
security holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's fiscal year), an
earnings statement (which need not be audited) of the Company, covering such
12-month period, which shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Rules.
(vi) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to each
other Underwriter a copy of the Registration Statement (without exhibits
thereto) and all amendments thereof and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Securities Act or the Rules, as
many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus
and the Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request. If applicable, the copies of the
Registration Statement, preliminary prospectus, any Issuer Free Writing
Prospectus and Prospectus and each amendment and supplement thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(vii) The Company shall cooperate with the Representatives
and their counsel in endeavoring to qualify the Shares for offer and sale in
connection with the offering under the laws of such jurisdictions as the
Representatives may designate and shall maintain such qualifications in effect
so long as required for the distribution of the Shares; provided, however, that
the Company shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to taxation as doing
business in any jurisdiction.
(viii) The Company, during the period when the Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is
required to be delivered under the Securities Act and the Rules or the Exchange
Act, will file all reports and other documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act
18
within the time periods required by the Exchange Act and the regulations
promulgated thereunder.
(ix) Without the prior written consent of CIBC World Markets
Corp., for a period of 180 days after the date of this Agreement, the Company
shall not issue, sell or register with the Commission (other than on Form S-8 or
on any successor form), or otherwise dispose of, directly or indirectly, any
equity securities of the Company (or any securities convertible into,
exercisable for or exchangeable for equity securities of the Company), except
for the issuance of the Shares pursuant to the Registration Statement and the
issuance of shares pursuant to the Company's existing stock option plan or bonus
plan as described in the Registration Statement and the Prospectus. In the event
that during this period, (A) any securities are issued pursuant to the Company's
existing stock option plan or bonus plan that are exercisable during such 180
day period or (B) any registration is effected on Form S-8 or on any successor
form relating to securities that are exercisable during such 180 period, the
Company shall obtain the written agreement of such grantee or purchaser or
holder of such registered securities that, for a period of 180 days after the
date of this Agreement, such person will not, without the prior written consent
of CIBC World Markets Corp., offer for sale, sell, distribute, grant any option
for the sale of, or otherwise dispose of, directly or indirectly, or exercise
any registration rights with respect to, any shares of Common Stock (or any
securities convertible into, exercisable for, or exchangeable for any shares of
Common Stock) owned by such person. Notwithstanding the foregoing, (i) the
Company represents and warrants that each such grantee or purchaser or holder of
such registered securities shall be subject to similar lockup restrictions as
set forth on EXHIBIT A attached hereto and the Company shall enforce such rights
and impose stop-transfer restrictions on any such sale or other transfer or
disposition of such shares until the end of the applicable period and (ii) if
(x) during the last 17 days of the 180 day period described in this Section
4(a)(ix) the Company issues an earnings release or material news or a material
event relating to the Company occurs; or (y) prior to the expiration of such 180
day period, the Company announces that it will release earnings results or
material news or a material event during the 16 day period beginning on the last
day of the 180 day period; the restrictions imposed during this Section 4(a)(ix)
shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or
material event; provided, however, that this sentence shall not apply if the
research published or distributed on the Company is compliant under Rule 139 of
the Securities Act and the Company's securities are actively traded as defined
in Rule 101(c)(1) of Regulation M of the Exchange Act.
(x) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and by the
NASDAQ National Market (including any required registration under the Exchange
Act).
(xi) Prior to the Closing Date, the Company will issue no
press release or other communications directly or indirectly and hold no press
conference with respect to the Company, the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company, or the
offering of the Shares without the prior consent of the Representatives unless
in the judgment of the Company and its counsel, and after notification to the
Representatives, such press release or communication is required by law.
19
(xii) The Company will apply the net proceeds from the
offering of the Shares substantially in the manner set forth under "Use of
Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the Representatives,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the public offering
of the Shares and the performance of the obligations of the Company under this
Agreement including those relating to: (i) the preparation, printing,
reproduction, filing and distribution of the Registration Statement including
all exhibits thereto, each Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus, all amendments and supplements thereto, and the
printing, filing and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
4(a)(vii), including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and qualification and the
preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including costs of
shipping and mailing) to the Representatives and to the Underwriters of copies
of each Preliminary Prospectus, the Prospectus and all amendments or supplements
to the Prospectus, any Issuer Free Writing Prospectus, and of the several
documents required by this Section to be so furnished, as may be reasonably
requested for use in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of
the NASD in connection with its review of the terms of the public offering and
reasonable fees and disbursements of counsel for the Underwriters in connection
with such review; (vi) inclusion of the Shares for quotation on the NASDAQ
National Market; and (vii) all transfer taxes, if any, with respect to the sale
and delivery of the Shares by the Company to the Underwriters. Subject to the
provisions of Section 7, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
(c) The Company acknowledges and agrees that each of the Underwriters has
acted and is acting solely in the capacity of a principal in an arm's length
transaction between the Company, on the one hand, and the Underwriters, on the
other hand, with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor, agent or fiduciary to the Company or any other person.
Additionally, the Company acknowledges and agrees that the Underwriters have not
and will not advise the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company
has consulted with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company or any other person with respect
thereto, whether arising prior to or after the date of hereof, provided, that
the foregoing sentence is not intended to, and does not, in any manner limit the
application of Section 5 below. Any review by the Underwriters of the Company,
the transactions contemplated hereby or other matters relating to such
transactions have been and will be performed solely for the benefit of the
Underwriters and shall not be on behalf of the Company. The Company agrees that
it will not claim that the
20
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary duty to the Company or any other person in
connection with any such transaction or the process leading thereto.
(d) The Company represents and agrees that, unless it obtains the prior
consent of CIBC World Markets Corp., and each Underwriter represents and agrees
that, unless it obtains the prior consent of the Company and CIBC World Markets
Corp., it has not made and will not make any offer relating to the Shares 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 under the Act applicable to any Issuer
Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. The Company represents that is has
satisfied and agrees that it will satisfy the conditions in Rule 433 of the
Rules to avoid a requirement to file with the Commission any Road Show.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement, the Statutory Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or any "issuer-information" filed or required to be
filed pursuant to Rule 433(d) of the Rules, any amendment thereof or supplement
thereto, or in any Blue Sky application or other information or other documents
executed by the Company filed in any state or other jurisdiction to qualify any
or all of the Shares under the securities laws thereof (any such application,
document or information being hereinafter referred to as a "BLUE SKY
APPLICATION") or arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that such
indemnity shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue statement or
omission was made in such Preliminary Prospectus, the Registration Statement,
the Prospectus, the Statutory Prospectus, any Issuer Free Writing Prospectus or
such amendment or supplement thereto, or in any Blue Sky Application in reliance
upon and in conformity with the Underwriter Information. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter agrees to indemnify and hold harmless the Company, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the
21
Company who signs the Registration Statement, against any losses, claims,
damages or liabilities to which such party may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Statutory Prospectus or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with the Underwriter Information; provided, however, that the
obligation of each Underwriter to indemnify the Company (including any
controlling person, director or officer thereof) shall be limited to the net
proceeds received by the Company from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section, notify each
such indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided for in
Section 5(a) or 5(b) shall be available to any party who shall fail to give
notice as provided in this Section 5(c) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice but the omission so to notify
such indemnifying party of any such action, suit or proceeding shall not relieve
it from any liability that it may have to any indemnified party for contribution
or otherwise than under this Section. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and the approval by the indemnified
party of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided below and
except for the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The indemnified party
shall have the right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) the indemnified party
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those available to
the indemnifying party (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying parties shall not have employed counsel to
assume the defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying parties. An indemnifying party shall
not be liable for any settlement of any action, suit, and proceeding or claim
effected without its written consent, which consent shall not be unreasonably
withheld or delayed.
22
6. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 5(a) or 5(b) is due in accordance with its terms but for any reason is
unavailable to or insufficient to hold harmless an indemnified party in respect
to any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate losses,
liabilities, claims, damages and expenses (including any investigation, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claims asserted, but
after deducting any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) incurred by
such indemnified party, as incurred, in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares pursuant to this
Agreement or, if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 6, no Underwriter (except as may be provided in the Agreement Among
Underwriters) shall be required to contribute any amount in excess of the amount
by which the total price at which the shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of damages which
such underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section 6, notify such party or
parties from whom contribution may be sought, but the omission so to notify such
party or parties from whom contribution may be sought shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this Section 6. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriter's
23
obligations to contribute pursuant to this Section 6 are several in proportion
to their respective underwriting commitments and not joint.
7. Termination.
(a) This Agreement may be terminated with respect to the Shares to be
purchased on a Closing Date by the Representatives by notifying the Company at
any time at or before a Closing Date in the absolute discretion of the
Representatives if: (i) there has occurred any material adverse change in the
securities markets or any event, act or occurrence that has materially
disrupted, or in the opinion of the Representatives, will in the future
materially disrupt, the securities markets or there shall be such a material
adverse change in general financial, political or economic conditions or the
effect of international conditions on the financial markets in the United States
is such as to make it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares or enforce contracts for the sale of the
Shares; (ii) there has occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, inadvisable or impracticable to market the Shares or enforce
contracts for the sale of the Shares; (iii) trading in the Shares or any
securities of the Company has been suspended or materially limited by the
Commission or trading generally on the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. or the NASDAQ National Market has been suspended
or materially limited, or minimum or maximum ranges for prices for securities
shall have been fixed, or maximum ranges for prices for securities have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD, or any other governmental or regulatory authority; (iv) a
banking moratorium has been declared by any state or Federal authority; or (v)
in the judgment of the Representatives, there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
assets, properties, condition, financial or otherwise, or in the results of
operations, or business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business.
(b) If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement
is terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
8. Substitution of Underwriters. If any Underwriter shall default in
its obligation to purchase on any Closing Date the Shares agreed to be purchased
hereunder on such Closing Date, the Representatives shall have the right, within
36 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to
24
purchase such Shares on the terms contained herein. If, however, the
Representatives shall not have completed such arrangements within such 36-hour
period, then the Company shall be entitled to a further period of 36 hours
within which to procure another party or other parties satisfactory to the
Underwriters to purchase such Shares on such terms. If, after giving effect to
any arrangements for the purchase of the Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided above, the
aggregate number of Shares which remains unpurchased on such Closing Date does
not exceed 10% of the aggregate number of all the Shares that all the
Underwriters are obligated to purchase on such date, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such date and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default. In any such case, either
the Representatives or the Company shall have the right to postpone the
applicable Closing Date for a period of not more than seven days in order to
effect any necessary changes and arrangements (including any necessary
amendments or supplements to the Registration Statement or Prospectus or any
other documents), and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in the opinion of the Company and
the Underwriters and their counsel may thereby be made necessary.
If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives and
the Company as provided above, the aggregate number of such Shares which remains
unpurchased exceeds 10% of the aggregate number of all the Shares to be
purchased at such date, then this Agreement, or, with respect to a Closing Date
which occurs after the First Closing Date, the obligations of the Underwriters
to purchase and of the Company, as the case may be, to sell the Option Shares to
be purchased and sold on such date, shall terminate, without liability on the
part of any non-defaulting Underwriter to the Company, and without liability on
the part of the Company, except as provided in Sections 4(b), 5, 6 and 7. The
provisions of this Section 8 shall not in any way affect the liability of any
defaulting Underwriter to the Company or the nondefaulting Underwriters arising
out of such default. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section 8 with like effect as if such
person had originally been a party to this Agreement with respect to such
Shares.
9. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or the Company or any of their respective officers,
directors or controlling persons referred to in Sections 5 and 6 hereof, and
shall survive delivery of and payment for the Shares. In addition, the
provisions of Sections 4(b), 5, 6 and 7 shall survive the termination or
cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and their respective successors and assigns, and, to
the extent expressed herein, for the
25
benefit of persons controlling any of the Underwriters, or the Company, and
directors and officers of the Company, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives, c/o CIBC World Markets Corp., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx XxxXxxxx, with a
copy to Xxxxx Xxxxxxx, Cooley Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx
Xxxx, Xxxx Xxxx, XX 00000 and (b) if to the Company, to its agent for service as
such agent's address appears on the cover page of the Registration Statement
with a copy to Xxxx Xxxxx, DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
IMARX THERAPEUTICS, INC.
By
-------------------------------------
Title:
---------------------------------
26
Confirmed:
CIBC WORLD MARKETS CORP.
-------------------------------------
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I
annexed hereto.
By CIBC WORLD MARKETS CORP.
By
----------------------------------
Title:
------------------------------
27
SCHEDULE I
Number of
Firm Shares
Name to Be Purchased
---- ---------------
CIBC World Markets Corp.
Xxxxxxxxx & Company, Inc.
First Albany Capital Inc.
-----------
Total
Sch I-1
SCHEDULE II
SCHEDULE III
EXHIBIT A
FORMS OF LOCK-UP AGREEMENT
May ___, 2006
CIBC World Markets Corp.
Xxxxxxxx & Company, Inc.
First Albany Capital
As Representatives of the Several Underwriters
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of ImaRx Therapeutics, Inc.
Ladies and Gentlemen:
The undersigned, a holder of common stock or rights to acquire Common
Stock, of ImaRx Therapeutics, Inc. (the "COMPANY"), understands that you, as
Representatives of the several Underwriters, propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with the Company,
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters named in Schedule I to the Underwriting Agreement (the
"UNDERWRITERS"), of shares of Common Stock of the Company (the "COMMON STOCK").
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In consideration of the Underwriters' agreement to enter into the
Underwriting Agreement and to proceed with the Public Offering of the Common
Stock, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees for the benefit of the Company, you
and the other Underwriters that, without the prior written consent of CIBC World
Markets Corp. on behalf of the Underwriters, the undersigned will not, during
the period (the "LOCK-UP PERIOD") beginning on the date hereof and ending 180
days after the date of the final prospectus relating to the Public Offering and
during any extension thereof, directly or indirectly (1) offer, pledge, assign,
encumber, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
any shares of Common Stock of the Company or any securities convertible into or
exercisable or exchangeable for Common Stock owned either of record or
beneficially (as defined in the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) by the undersigned on the date hereof or hereafter acquired or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, or
publicly announce an intention to do any of the foregoing. In addition, the
undersigned agrees that, without the prior written consent of CIBC World Markets
Corp. on behalf of the Underwriters, it will not, during the Lock-Up Period and
during any extension thereof, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into
or exercisable or exchangeable for Common Stock. The foregoing shall not apply
to sales or other transfers of Common Stock (A) by the undersigned of shares
acquired by purchase in the open market, (B) as a bona fide gift or gifts, (C)
to any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, (D) if the undersigned is a corporation, to
any wholly-owned subsidiary of such corporation, (E) if the undersigned is a
limited liability company, to a member or affiliated limited liability company,
or (F) if the undersigned is a partnership, to a partner or affiliated
partnership; provided, however, that in each such case under clauses (B) through
(F) of this sentence, (1) it shall be a condition to the transfer that the donee
or transferee execute an agreement stating that the donee or transferee is
receiving and holding such capital stock subject to the provisions of this
Lock-Up Agreement and there shall be no further transfer of such capital stock
except in accordance with this Lock-Up Agreement, (2) any such transfer shall
not involve a disposition for value, (3) each party (donor, donee, transferor or
transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the Exchange Act) to make, and shall agree to not
voluntarily make, any public announcement of the transfer or disposition, (4)
the undersigned notifies CIBC World Markets Corp. at least two business days
prior to the proposed transfer or disposition, and provided further, that in
each case under clauses (i) and (ii) above, no filing by any party (seller,
purchaser, donor, donee, transferor or transferee) under the Exchange Act shall
be required or shall be voluntarily made in connection with such purchase, sale
or transfer (other than a filing on a Form 5, Schedule 13D or Schedule 13G made
after the expiration of the Lock-Up Period and any extension thereof). For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
Notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-Up Period the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
or material news or a material event during the 16-day period beginning on the
last day of the Lock-Up Period; the restrictions imposed in this Lock-Up
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event; provided, however, that this sentence shall not
apply if the research published or distributed on the Company is compliant under
Rule 139 of the Securities Act and the Company's securities are actively traded
as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if: (i) the Underwriting Agreement does
not become effective by December 31, 2006; (ii) the Underwriting Agreement
(other than the provisions thereof which survive termination) shall terminate or
be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder; or (iii) a registration statement on Form 10 filed by the Company
with the Securities and Exchange Commission under the Exchange Act relating to
the registration of the Company's Common Stock becomes effective, the
undersigned shall be released from all obligations under this Lock-Up Agreement.
The undersigned, whether or not participating in the Public Offering,
understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Lock-Up Agreement.
[Signature Follows]
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
----------------------------------------
Name of Holder of Securities (please
print)
By:
------------------------------------
Signature
----------------------------------------
Name of Signatory, if Shareholder is an
Entity
(please print)
----------------------------------------
Title (if applicable - please print)
May ___, 2006
CIBC World Markets Corp.
Xxxxxxxx & Company, Inc.
First Albany Capital
As Representatives of the Several Underwriters
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of ImaRx Therapeutics, Inc.
Ladies and Gentlemen:
The undersigned, a holder of common stock or rights to acquire Common
Stock, of ImaRx Therapeutics, Inc. (the "COMPANY"), understands that you, as
Representatives of the several Underwriters, propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with the Company,
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters named in Schedule I to the Underwriting Agreement (the
"UNDERWRITERS"), of shares of Common Stock of the Company (the "COMMON STOCK").
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In consideration of the Underwriters' agreement to enter into the
Underwriting Agreement and to proceed with the Public Offering of the Common
Stock, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees for the benefit of the Company, you
and the other Underwriters that, without the prior written consent of CIBC World
Markets Corp. on behalf of the Underwriters, the undersigned will not, during
the period (the "LOCK-UP PERIOD") beginning on the date hereof and ending 180
days after the date of the final prospectus relating to the Public Offering and
during any extension thereof, directly or indirectly (1) offer, pledge, assign,
encumber, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
any shares of Common Stock of the Company or any securities convertible into or
exercisable or exchangeable for Common Stock owned either of record or
beneficially (as defined in the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) by the undersigned on the date hereof or hereafter acquired or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, or
publicly announce an intention to do any of the foregoing. In addition, the
undersigned agrees that, without the prior written consent of CIBC World Markets
Corp. on behalf of the Underwriters, it will not, during the Lock-Up Period and
during any extension thereof, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into
or exercisable or exchangeable for Common Stock. The foregoing shall not apply
to sales or other transfers of Common Stock (A) by the undersigned of shares
acquired by purchase in the open market, (B) as a bona fide gift or gifts, (C)
to any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, (D) if the undersigned is a corporation, to
any wholly-owned subsidiary of such corporation, (E) if the undersigned is a
limited liability company, to a member or affiliated limited liability company,
or (F) if the undersigned is a partnership, to a partner or affiliated
partnership; provided, however, that in each such case under clauses (B) through
(F) of this sentence, (1) it shall be a condition to the transfer that the donee
or transferee execute an agreement stating that the donee or transferee is
receiving and holding such capital stock subject to the provisions of this
Lock-Up Agreement and there shall be no further transfer of such capital stock
except in accordance with this Lock-Up Agreement, (2) any such transfer shall
not involve a disposition for value, (3) each party (donor, donee, transferor or
transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the Exchange Act) to make, and shall agree to not
voluntarily make, any public announcement of the transfer or disposition, (4)
the undersigned notifies CIBC World Markets Corp. at least two business days
prior to the proposed transfer or disposition, and provided further, that in
each case under clauses (i) and (ii) above, no filing by any party (seller,
purchaser, donor, donee, transferor or transferee) under the Exchange Act shall
be required or shall be voluntarily made in connection with such purchase, sale
or transfer (other than a filing on a Form 5, Schedule 13D or Schedule 13G made
after the expiration of the Lock-Up Period and any extension thereof). For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
Notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-Up Period the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
or material news or a material event during the 16-day period beginning on the
last day of the Lock-Up Period; the restrictions imposed in this Lock-Up
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event; provided, however, that this sentence shall not
apply if the research published or distributed on the Company is compliant under
Rule 139 of the Securities Act and the Company's securities are actively traded
as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if: (i) the Underwriting Agreement does
not become effective by December 31, 2006; or (ii) the Underwriting Agreement
(other than the provisions thereof which survive termination) shall terminate or
be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder, the undersigned shall be released from all obligations under this
Lock-Up Agreement.
The undersigned, whether or not participating in the Public Offering,
understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Lock-Up Agreement.
[Signature Follows]
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
----------------------------------------
Name of Holder of Securities (please
print)
By:
------------------------------------
Signature
----------------------------------------
Name of Signatory, if Shareholder is an
Entity
(please print)
----------------------------------------
Title (if applicable - please print)
May ___, 2006
CIBC World Markets Corp.
Xxxxxxxx & Company, Inc.
First Albany Capital
As Representatives of the Several Underwriters
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of ImaRx Therapeutics, Inc.
Ladies and Gentlemen:
The undersigned, a holder of common stock or rights to acquire Common
Stock, of ImaRx Therapeutics, Inc. (the "COMPANY"), understands that you, as
Representatives of the several Underwriters, propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with the Company,
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters named in Schedule I to the Underwriting Agreement (the
"UNDERWRITERS"), of shares of Common Stock of the Company (the "COMMON STOCK").
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In consideration of the Underwriters' agreement to enter into the
Underwriting Agreement and to proceed with the Public Offering of the Common
Stock, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees for the benefit of the Company, you
and the other Underwriters that, without the prior written consent of CIBC World
Markets Corp. on behalf of the Underwriters, the undersigned will not, during
the period (the "LOCK-UP PERIOD") beginning on the date hereof and ending 180
days after the date of the final prospectus relating to the Public Offering and
during any extension thereof, directly or indirectly (1) offer, pledge, assign,
encumber, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
any shares of Common Stock of the Company or any securities convertible into or
exercisable or exchangeable for Common Stock owned either of record or
beneficially (as defined in the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) by the undersigned on the date hereof or hereafter acquired or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, or
publicly announce an intention to do any of the foregoing. In addition, the
undersigned agrees that, without the prior written consent of CIBC World Markets
Corp. on behalf of the Underwriters, it will not, during the Lock-Up Period and
during any extension thereof, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into
or exercisable or exchangeable for Common Stock. The foregoing shall not apply
to sales or other transfers of Common Stock (A) as a bona fide gift or gifts,
(B) to any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, (C) if the undersigned is a corporation, to
any wholly-owned subsidiary of such corporation, (D) if the undersigned is a
limited liability company, to a member or affiliated limited liability company,
or (E) if the undersigned is a partnership, to a partner or affiliated
partnership; provided, however, that in each such case under clauses (A) through
(E) of this sentence, (1) it shall be a condition to the transfer that the donee
or transferee execute an agreement stating that the donee or transferee is
receiving and holding such capital stock subject to the provisions of this
Lock-Up Agreement and there shall be no further transfer of such capital stock
except in accordance with this Lock-Up Agreement, (2) any such transfer shall
not involve a disposition for value, (3) each party (donor, donee, transferor or
transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the Exchange Act) to make, and shall agree to not
voluntarily make, any public announcement of the transfer or disposition, (4)
the undersigned notifies CIBC World Markets Corp. at least two business days
prior to the proposed transfer or disposition, and provided further, that in
each case under clauses (i) and (ii) above, no filing by any party (seller,
purchaser, donor, donee, transferor or transferee) under the Exchange Act shall
be required or shall be voluntarily made in connection with such purchase, sale
or transfer (other than a filing on a Form 5, Schedule 13D or Schedule 13G made
after the expiration of the Lock-Up Period and any extension thereof). For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
Notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-Up Period the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
or material news or a material event during the 16-day period beginning on the
last day of the Lock-Up Period; the restrictions imposed in this Lock-Up
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event; provided, however, that this sentence shall not
apply if the research published or distributed on the Company is compliant under
Rule 139 of the Securities Act and the Company's securities are actively traded
as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if: (i) the Underwriting Agreement does
not become effective by December 31, 2006; or (ii) the Underwriting Agreement
(other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Stock to be sold thereunder, the
undersigned shall be released from all obligations under this Lock-Up Agreement.
The undersigned, whether or not participating in the Public Offering,
understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Lock-Up Agreement.
[Signature Follows]
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
----------------------------------------
Name of Holder of Securities
(please print)
By:
------------------------------------
Signature
----------------------------------------
Name of Signatory, if Shareholder is an
Entity
(please print)
----------------------------------------
Title (if applicable - please print)
May ___, 2006
CIBC World Markets Corp.
Xxxxxxxx & Company, Inc.
First Albany Capital
As Representatives of the Several Underwriters
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of ImaRx Therapeutics, Inc.
Ladies and Gentlemen:
The undersigned, a holder of common stock or rights to acquire Common
Stock, of ImaRx Therapeutics, Inc. (the "COMPANY"), understands that you, as
Representatives of the several Underwriters, propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with the Company,
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters named in Schedule I to the Underwriting Agreement (the
"UNDERWRITERS"), of shares of Common Stock of the Company (the "COMMON STOCK").
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In consideration of the Underwriters' agreement to enter into the
Underwriting Agreement and to proceed with the Public Offering of the Common
Stock, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees for the benefit of the Company, you
and the other Underwriters that, without the prior written consent of CIBC World
Markets Corp. on behalf of the Underwriters, the undersigned will not, during
the period (the "LOCK-UP PERIOD") beginning on the date hereof and ending 180
days after the date of the final prospectus relating to the Public Offering and
during any extension thereof, directly or indirectly (1) offer, pledge, assign,
encumber, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
any shares of Common Stock of the Company or any securities convertible into or
exercisable or exchangeable for Common Stock owned either of record or
beneficially (as defined in the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) by the undersigned on the date hereof or hereafter acquired or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, or
publicly announce an intention to do any of the foregoing. In addition, the
undersigned agrees that, without the prior written consent of CIBC World Markets
Corp. on behalf of the Underwriters, it will not, during the Lock-Up Period and
during any extension thereof, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into
or exercisable or exchangeable for Common Stock. The foregoing shall not apply
to sales or other transfers of Common Stock (A) as a bona fide gift or gifts,
(B) to any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, (C) if the undersigned is a corporation, to
any wholly-owned subsidiary of such corporation, (D) if the undersigned is a
limited liability company, to a member or affiliated limited liability company,
or (E) if the undersigned is a partnership, to a partner or affiliated
partnership; provided, however, that in each such case under clauses (A) through
(E) of this sentence, (1) it shall be a condition to the transfer that the donee
or transferee execute an agreement stating that the donee or transferee is
receiving and holding such capital stock subject to the provisions of this
Lock-Up Agreement and there shall be no further transfer of such capital stock
except in accordance with this Lock-Up Agreement, (2) any such transfer shall
not involve a disposition for value, (3) each party (donor, donee, transferor or
transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the Exchange Act) to make, and shall agree to not
voluntarily make, any public announcement of the transfer or disposition, (4)
the undersigned notifies CIBC World Markets Corp. at least two business days
prior to the proposed transfer or disposition, and provided further, that in
each case under clauses (i) and (ii) above, no filing by any party (seller,
purchaser, donor, donee, transferor or transferee) under the Exchange Act shall
be required or shall be voluntarily made in connection with such purchase, sale
or transfer (other than a filing on a Form 5, Schedule 13D or Schedule 13G made
after the expiration of the Lock-Up Period and any extension thereof). For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
Notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-Up Period the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
or material news or a material event during the 16-day period beginning on the
last day of the Lock-Up Period; the restrictions imposed in this Lock-Up
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event; provided, however, that this sentence shall not
apply if the research published or distributed on the Company is compliant under
Rule 139 of the Securities Act and the Company's securities are actively traded
as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if: (i) the Underwriting Agreement does
not become effective by December 31, 2006; (ii) the Underwriting Agreement
(other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Stock to be sold thereunder; or (iii) a
registration statement on Form 10 filed by the Company with the Securities and
Exchange Commission under the Exchange Act relating to the registration of the
Company's Common Stock becomes effective, the undersigned shall be released from
all obligations under this Lock-Up Agreement.
The undersigned, whether or not participating in the Public Offering,
understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Lock-Up Agreement.
[Signature Follows]
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
----------------------------------------
Name of Holder of Securities
(please print)
By:
------------------------------------
Signature
----------------------------------------
Name of Signatory, if Shareholder is an
Entity
(please print)
----------------------------------------
Title (if applicable - please print)
EXHIBIT B
FORM OF OPINION OF DLA XXXXX XXXXXXX XXXX XXXX US LLP
1. The Company has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware. The Company is duly
qualified to transact business and is in good standing as a foreign corporation
in each jurisdiction in which the character or location of its assets or
properties or the nature of its business makes such qualification necessary,
except where the failure to so qualify or to be in good standing, individually
or in the aggregate, would not have a Material Adverse Effect (as defined in the
Underwriting Agreement).
2. The Company has all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as now being conducted and as
described in the Registration Statement, the Statutory Prospectus and the
Prospectus and to enter into and perform its obligations under this Agreement
and to issue and sell the Shares.
3. The authorized, issued and outstanding capital stock of the Company is as set
forth in the Registration Statement, the Statutory Prospectus and the Prospectus
under the caption "Capitalization" as of the dates stated therein and, since
such dates, there has been no change in the capital stock of the Company except
for subsequent issuances, if any, pursuant to the Underwriting Agreement or
pursuant to reservations, agreements or employee benefit plans referred to in
the Statutory Prospectus and the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Statutory Prospectus and
the Prospectus; all of the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable and to the best of such counsel's knowledge there are no existing
unsatisfied preemptive or other similar rights. The Shares to be issued and sold
by the Company pursuant to Underwriting Agreement have been duly authorized for
issuance and sale to the Underwriters pursuant to the Underwriting Agreement
and, when issued and delivered by the Company pursuant to the Underwriting
Agreement against payment of the consideration set forth therein, will be
validly issued, fully paid and nonassessable. Neither the Company's certificate
of incorporation nor its bylaws subject the sale of the Shares to any preemptive
right, and the issuance and sale of the Shares by the Company is not subject to
any statutory preemptive right or to the best of such counsel's knowledge other
similar rights of any securityholder of the Company. To the best of such
counsel's knowledge, except as disclosed in the Registration Statement, the
Statutory Prospectus and the Prospectus, there are no preemptive or other rights
to subscribe for or to purchase or any restriction upon the voting or transfer
of any securities of the Company pursuant to the Company's Certificate of
Incorporation or Bylaws or other governing documents or any agreements or other
instruments to which the Company is a party or by which it is bound. To the best
of such counsel's knowledge, except as disclosed in the Registration Statement,
the Statutory Prospectus and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any share of stock of the Company or any security
convertible into, exercisable for, or exchangeable for stock of the Company. The
Common Stock and the Shares conform in all material respects to the descriptions
thereof contained under the caption "Description of Capital Stock" in the
Registration Statement, the Statutory Prospectus and the
Prospectus. The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the Certificate of Incorporation or Bylaws of the
Company and the requirements of the Nasdaq National Market. To the best of such
counsel's knowledge, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement that have not been waived.
4. All necessary corporate action has been duly and validly taken by the Company
to authorize the execution, delivery and performance of the Underwriting
Agreement and the issuance and sale of the Shares. The Underwriting Agreement
has been duly and validly authorized, executed and delivered by the Company and
the Underwriting Agreement constitutes the legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms
(subject to standard exceptions).
5. Neither the execution, delivery and performance of the Underwriting Agreement
by the Company nor the consummation of any of the transactions contemplated
thereby (including, without limitation, the issuance and sale by the Company of
the Shares) nor the execution, delivery or performance of any other agreement or
instrument entered into or to be entered into by the Company in connection with
the transactions contemplated by the Registration Statement, the Statutory
Prospectus and the Prospectus will give rise to a right to terminate or
accelerate the due date of any material payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a default (or
any event which with notice or lapse of time, or both, would constitute a
default) under, or require consent or waiver under, or result in the execution
or imposition of any lien, charge, claim, security interest or encumbrance upon
any properties or assets of the Company pursuant to the terms of, any indenture,
mortgage, deed, trust, note or material agreement or material instrument in each
case that is in an exhibit to, or is described in, the Registration Statement,
or any franchise, judgment, decree, order, statute, rule or regulation, domestic
or foreign, in each case of which such counsel is aware or violate any provision
of the charter or bylaws of the Company.
6. No consent, approval, authorization, license, registration, qualification or
order of any court or governmental agency or regulatory body that in such
counsel's experience is normally applicable in relation to transactions of the
type contemplated by the Underwriting Agreement is required for the due
authorization, execution, delivery or performance of the Underwriting Agreement
by the Company or the consummation of the transactions contemplated hereby,
except such as have been obtained and such as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the several Underwriters.
7. To the best of such counsel's knowledge, there is no any action, suit,
proceeding or other investigation, before any court or before or by any public
body or board pending or threatened against, or involving the assets, properties
or businesses of, the Company that is required to be disclosed in the
Registration Statement, the Statutory Prospectus and the Prospectus and is not
so disclosed or to the best of such counsel's knowledge that would have a
Material Adverse Effect.
8. The statements in the Statutory Prospectus and the Prospectus under the
captions "Description of Capital Stock," "Business-Litigation," and "Certain
Transactions," and in the
Registration Statement under Item 15 of Part II, 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.
9. The Registration Statement, all Preliminary Prospectuses (including the
Statutory Prospectus) and the Prospectus (except as to the financial statements
and schedules, related notes and other financial data and statistical data
derived therefrom, as to which such counsel expresses no opinion), comply as to
form in all material respects with the requirements of the Securities Act and
the Rules.
10. The Registration Statement is effective under the Securities Act, and to
such counsel's knowledge no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are threatened, pending or contemplated. Any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
11. The Shares have been approved for listing on the Nasdaq National Market.
12. The Company is not an "investment company" or an entity controlled by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended.
13. To the best of such counsel's knowledge, the information in the Prospectus
under "Risk Factors - [Update Captions: "We rely on third party products,
technology and intellectual property, which could negatively affect our ability
to sell our nanobubble products commercially or adversely affect our ability to
derive meaningful revenue from such products." "We depend on patents and other
proprietary rights, some of which are uncertain and unproven. Further, our
patent portfolio and other intellectual property rights are expensive to
maintain, protect against infringement claims by third parties, and enforce
against third party infringements, and are subject to potential adverse claims."
"Other companies may claim that we infringe their patents or trade secrets,
which could subject us to substantial damages." "Our rights to develop and
commercialize certain of our product candidates are subject to the terms and
conditions of licenses or sublicenses granted to us by third parties, including
other pharmaceutical companies that contain restrictions that may limit our
ability to capitalize on these products." ]," "Business - Material Contracts,"
and "Business - Patents and Proprietary Rights," 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.
14. To the best of such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there are no pending or threatened
legal or governmental proceedings, nor allegations on the part of any person of
infringement, relating to patent rights, trade secrets or other proprietary
information or know-how of the Company and its Subsidiaries and no such
proceedings are threatened or contemplated.
15. To the best of such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, neither the Company nor any of its
Subsidiaries is infringing or
otherwise violating any patents, trade secrets or other proprietary information
or know-how of any persons and, to the best of such counsel's knowledge, no
person is infringing or otherwise violating any of the Company's and its
Subsidiaries' patents, trade secrets or other proprietary information or
know-how of the Company and its Subsidiaries.
16. To the best of such counsel's knowledge, the Company and its Subsidiaries
own or possess sufficient licenses or other rights to use all technology covered
by patents or trade secrets, and to use all trademarks, service marks or other
proprietary information or know-how necessary to conduct the business now being
or proposed to be conducted by the Company and its Subsidiaries as described in
the Prospectus.
17. To the best of such counsel's knowledge, the Company's United States and
foreign patents (the "Patents") listed on Schedule ____ hereto are valid and
enforceable and are entitled to a statutory presumption of validity and of
ownership by the assignee. To the best of such counsel's knowledge, there are no
asserted or unasserted claims of any persons relating to the scope or ownership
of any of the Patents or any of the Company's or its Subsidiaries' patent
applications, whether United States or foreign "Applications"), listed on
Schedule _______ hereto, there are no liens which have been filed against any of
the Patents or the Applications, there are no material defects of form in the
preparation or filing of the Applications, the Applications are being diligently
prosecuted and none of the Applications have been finally rejected or abandoned.
The Company and its Subsidiaries are listed on the records of the United States
Patent and Trademark Office ("PTO") or appropriate foreign patent offices as the
sole assignee of record thereof.
18. Nothing has come to such counsel's attention that leads them to believe that
any of the Applications will not eventuate in issued patents, or that any
patents issued in respect of any such Applications will not be valid or will not
afford the Company or its Subsidiaries the patent protection described by the
claims therein; and to such counsel's knowledge and except as disclosed in the
Registration Statement and the Prospectus, none of the patents or patent
applications listed on the attached Schedule __________ are involved in any
actual or threatened litigations, interferences, inter partes re-examinations,
ex parte re-examinations, reissues, oppositions, protests, conflict proceedings,
nullity actions, invalidation proceedings, patent revocations, inventorship
challenges, ownership challenges, invalidity actions and the like.
19. The Company is the exclusive licensee of the patents and patent applications
listed on Schedule _____ and the non-exclusive licensee of the patents and
patent applications listed on Schedule _____. All licenses of the Company and
its Subsidiaries to patents and applications, whether United States or foreign,
are duly executed, validly binding and enforceable in accordance with their
terms and, to such counsel's knowledge, neither the Company nor any Subsidiary
is in default (declared or undeclared) of any material provision of such
licenses.
20. To the best of such counsel's knowledge, all pertinent art references known
to the Company or its Subsidiaries or their counsel during the prosecution of
the Patents and the Applications were disclosed to the PTO and, to the best of
such counsel's knowledge, neither such counsel nor the Company or its
Subsidiaries made any misrepresentation to, or concealed any material fact from,
the PTO during such prosecution.
21. To the best of such counsel's knowledge, the Company and its Subsidiaries
take security measures adequate to assert trade secret protection in its
non-patented technology.
***
In connection with the preparation of the Registration Statement, the Prospectus
and the Statutory Prospectus, we have participated in conferences with officers
and other representatives of the Company and with its independent registered
public accounting firm, as well as with representatives of and counsel for the
Underwriters and their counsel. At such conferences, the contents of the
Registration Statement, the Prospectus and the Statutory Prospectus and related
matters were discussed. We have not independently verified, and accordingly are
not confirming and assume no responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except to the extent otherwise stated herein. On the basis of the
foregoing, no facts have come to such counsel's attention that have caused such
counsel to believe (i) that the Registration Statement (except as to the
financial statements and schedules, related notes and other financial data and
statistical data derived therefrom, and the matters covered by the other legal
opinions rendered in connection with the Underwriting Agreement by other special
counsel to the Company as to which we express no belief or opinion), at the date
and time that the Registration Statement became effective, 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, (ii)
that the Prospectus (except as to the financial statements and schedules,
related notes and other financial and statistical data derived therefrom, and
the matters covered by the other legal opinions rendered in connection with the
Underwriting Agreement by other special counsel to the Company as to which we
express no belief or opinion) as of its date or the date hereof contained or
contains any untrue statement of a material fact or omitted or omits 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, (iii) the
Statutory Prospectus, when considered together with the price to the public and
the number of shares set forth on the cover page of the Prospectus as of the
Applicable Time contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and (iv)
the Issuer Free Writing Prospectuses, if any, specified on Schedule A to this
opinion that were filed with the Commission (and in any event excluding all road
shows, electronic road shows and bona fide electronic road shows), contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
EXHIBIT C
FORM OF OPINION OF XXXXXX XXXXXX LLP
[September __], 2006
CIBC World Markets Corp.
As Representative of the Several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have been engaged by ImaRx Therapeutics, Inc., a Delaware
corporation (the "Company"), to review, in connection with the offering of
[__________] shares of Common Stock, the description in the offering materials
of certain matters as described below. This opinion is being rendered pursuant
to Section 3(g) of the Underwriting Agreement, dated as of September __, 2006,
between you and the Company. Capitalized terms used but not defined herein have
the meanings set forth in the Underwriting Agreement.
We have reviewed the following documents in connection with this
opinion: Sections of the Registration Statement and related Prospectus dated May
19, 2006 (as subsequently amended on June 28, 2006, August __, 2006 and
_________, 2006) captioned: "Risk Factors -- Risks Related to Our Business - If
we want to sell urokinase beyond our existing inventory of Abbokinase we would
need to undertake manufacturing and secure regulatory approval for a new
manufacturing process and facility"; "Risk Factors -- Risks Related to Our
Business - If we are not able to use the data and drug substance acquired from
Xxxxxx Laboratories for further clinical development of our PROLYSE and
Open-Cath-R product candidates and our Abbokinase product, we will not be able
to maintain our current timelines for further development and commercialization
of these potential products and Abbokinase. Any additional clinical trial
requirements could significantly increase our expenses and reduce the commercial
value of PROLYSE, Open-Cath-R and Abbokinase"; "Risk Factors -- Risks Related to
Our Business - To receive FDA marketing approval for PROLYSE or Open-Cath-R, we
must demonstrate that the material manufactured for commercial use is equivalent
to the material previously manufactured"; "Risk Factors -- Risks Related to Our
Business - We do not plan to manufacture any of our product candidates and will
depend on commercial contract manufacturers to manufacture our products"; "Risk
Factors -- Risks Related to Our Business - If our clinical trials are not
successful, or if we are unable to obtain regulatory approvals, we will not be
able to commercialize our products and we will continue to incur significant
operating losses"; "Risk Factors --Risks Related to Our Business -The FDA
approval process for drugs involves substantial time, effort and financial
resources, and we may not receive any new approvals for our product candidates
on a timely basis, or at all"; "Risk Factors -- Risks Related to Our Business --
If we are unable to obtain acceptable prices or adequate reimbursement from
third-party payors for any product candidates that we seek to commercialize, our
revenue and prospects for profitability will suffer; "Risk Factors -- Risk
Related to Our Business -- If we or our contract manufacturers fail to comply
with applicable regulations, sales of our products could be delayed and our
revenue could be harmed"; "Risk Factors -- Risks Related to Our Business - Our
products will remain subject to ongoing regulatory review even if they receive
marketing
approval. If we fail to comply with applicable regulations, we could lose these
approvals, and the sale of our products could be suspended"; "Risk Factors --
Risks Related to Our Business - Marketing and reimbursement practices and claims
processing in the pharmaceutical and medical device industries are subject to
significant regulation in the U.S."; "Risk Factors --Risks Related to Our
Business - If we seek regulatory approvals for our products in foreign
jurisdictions, we may not obtain any such approvals"; "Business Manufacturing";
and "Our Business -- Government Regulation"(collectively the "Regulatory
Statements").
This opinion is limited to the Federal Food, Drug and Cosmetic Act
(FDCA) and related regulations promulgated by the Federal Food and Drug
Administration (FDA) and general health care reimbursement matters pertaining to
the Company's product candidates. We disclaim any opinion as to any law, rule or
regulation of product and any other jurisdiction or of any regional or local
governmental body.
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of our opinion, and
subject to the limitations and qualifications expressed below, it is our opinion
that:
(1) The Regulatory Statements, insofar as such Regulatory Statements
constitute summaries of documents or legal proceedings or refer to
matters of law or legal conclusions, present fairly the information
purported to be shown;
(2) Nothing has come to our attention that causes us to believe that the
Regulatory Statements contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(3) To our knowledge, there are no pending or threatened actions, suits or
proceedings against the Company under the FDCA; and
(4) Nothing has come to our attention that causes us to believe that the
Company's business, as currently conducted and as described in the
Regulatory Statements, violates the FDCA.
This opinion is rendered to you in connection with the Underwriting
Agreement and is solely for your benefit. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm,
corporation, or other entity for any purpose, without our prior written consent.
We disclaim any obligation to advise you of any developments in areas covered by
this opinion that occur after the date of this opinion.
Very Truly Yours,
----------------------------------------
Xxxxxx Xxxxxx L.L.P.
EXHIBIT D
FORM OF OPINION OF LAW OFFICE OF XXXX X. XXXXXXXX, P.C.
(A) Such counsel are familiar with the technology used by the Company in its
business and the manner of its use thereof and have read the Registration
Statement, the Statutory Prospectus and the Prospectus, including particularly
the portions of the Registration Statement, the Statutory Prospectus and the
Prospectus referring to trademarks and/or service marks and:
(I) To the best of our knowledge, there are no pending or threatened legal
or governmental proceedings, nor allegations on the part of any person of
infringement, relating to trademarks and/or service marks of the Company and its
Subsidiaries and no such proceedings are threatened or contemplated.
(II) To the best of our knowledge, neither the Company nor any of its
Subsidiaries is infringing or otherwise violating any trademarks and/or service
marks of any persons and, to our knowledge, no person is infringing or otherwise
violating any of the Company's and its Subsidiaries' trademarks and/or service
marks of the Company and its Subsidiaries.
(III) To the best of our knowledge, the Company and its Subsidiaries own or
possess sufficient licenses or other rights to use all trademarks and/or service
marks to conduct the business now being or proposed to be conducted by the
Company and its Subsidiaries as described in the Prospectus.
(IV) To the best of our knowledge, there are no asserted or unasserted
claims of any persons relating to the scope or ownership of any of the Company
and its Subsidiaries' pending trademark applications, there are no liens which
have been filed against any of such applications, there are no material defects
of form in the preparation or filing of such applications, such applications are
being diligently prosecuted, and none of such applications has been finally
rejected or abandoned.
(V) Nothing has come to our attention that leads us to believe that any of
the Company and its Subsidiaries' pending trademark applications filed with the
PTO will not eventuate in registered trademarks, or that any trademark
registrations issued in respect of any such applications will not be valid or
will not afford the Company or its Subsidiaries reasonable trademark protection
relative to the subject matter thereof.
EXHIBIT E
FORM OF OPINION OF XXXXXX GODWARD LLP
CIBC World Markets Corp.
Xxxxxxxxx & Company, Inc.
First Albany Capital Inc.
As Representatives of the Several
Underwriters named in Schedule I hereto
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: PUBLIC OFFERING OF __________ SHARES OF COMMON STOCK OF IMARX THERAPEUTICS,
INC.
Ladies and Gentlemen:
We have acted as special counsel for you and the other underwriters named
in Schedule I (the "UNDERWRITERS") to the Underwriting Agreement dated
__________, 2006 (the "UNDERWRITING AGREEMENT") among ImaRx Therapeutics, Inc.,
a Delaware corporation (the "COMPANY"), and you, as representatives (the
"REPRESENTATIVES") of the Underwriters, pursuant to which the Underwriters
severally have agreed to purchase an aggregate of __________ shares (the "FIRM
SHARES") of the Company's Common Stock $_____ par value, (the "COMMON STOCK"),
plus an option (the "OPTION") to purchase up to an additional __________ shares
of Common Stock from the Company to cover over-allotments, if any (the "OPTION
SHARES"). The Firm Shares and Option Shares are referred to herein collectively
as the "SHARES."
In connection with this opinion, we have examined and relied upon the
originals or copies of such records, documents, certificates, opinions,
memoranda and other instruments as in our judgment are necessary to enable us to
render the opinions expressed below, including the Registration Statement on
Form S-1 (No. 333-134311) relating to the Shares, filed with the Securities and
Exchange Commission (the "COMMISSION") under the Securities Act of 1933, as
amended (the "Securities Act"), on May 19, 2006, and amended on June 28, 2006,
__________, 2006 and __________, 2006 (such Registration Statement, as amended,
including information deemed to be a part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A of the General Rules and Regulations
under the Securities Act (the "RULES AND REGULATIONS") being hereinafter
referred to as the "REGISTRATION STATEMENT"), the final Prospectus, dated
__________, 2006, relating to the Shares, [AS FILED WITH THE COMMISSION PURSUANT
TO RULE 424(B) OF THE RULES AND REGULATIONS] (such final Prospectus being
hereinafter referred to as the "PROSPECTUS"), and the "STATUTORY PROSPECTUS" as
of any time means the Preliminary Prospectus relating to the Shares that is
included in the Registration Statement immediately prior to means ___:00 [a/p]m
(Eastern time) on the date of the Underwriting Agreement (the "APPLICABLE
TIME"). For purposes of the definition of Statutory Prospectus, information
contained in a form of prospectus that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430A of the Rules shall be
considered to be included in the Statutory Prospectus as of the actual time that
form of prospectus is filed with the
Commission pursuant to Rule 424(b).
In rendering this opinion, we have assumed: the genuineness and
authenticity of all signatures on original documents; the authenticity of all
documents submitted to us as originals; the conformity to originals of all
documents submitted to us as copies; the accuracy, completeness and authenticity
of certificates of public officials; and the due authorization, execution and
delivery of all documents (except the due authorization, execution and delivery
by the Company of the Underwriting Agreement), where authorization, execution
and delivery are prerequisites to the effectiveness of such documents. We have
also assumed that all individuals executing and delivering documents had the
legal capacity to so execute and deliver.
Our opinion is expressed only with respect to the federal laws of the United
States of America, the laws of the State of California and the General
Corporation Law of the State of Delaware. We express no opinion as to whether
the laws of any particular jurisdiction apply and no opinion to the extent that
the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof.
With regard to our opinion in paragraph 5 below, our opinion is based solely
upon oral advice from the staff of the Commission that the Registration
Statement was declared effective under the Act and that no stop order suspending
the effectiveness of the Registration Statement has been issued and that no
proceedings for that purpose have been initiated or are pending or contemplated
by the Commission. We have conducted no further investigation.
On the basis of the foregoing and in reliance thereon, and with the
foregoing qualifications, we are of the opinion that:
The Underwriting Agreement has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed and delivered by
the Company.
The Shares have been duly authorized and, when issued and paid by the
Underwriters pursuant to the Underwriting Agreement, will be validly issued,
fully paid and nonassessable.
The Shares conform in all material respects to the description thereof contained
in the Prospectus under the caption "Description of Capital Stock - Common
Stock".
The specimen certificate for the Shares filed as an exhibit to the Registration
Statement is in due and proper form under Delaware law.
The Registration Statement has become effective under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or overtly
threatened.
* * * * *
In connection with the preparation of the Registration Statement, the Prospectus
and the Statutory Prospectus, we have participated in conferences with officers
and other representatives of the Company and with its independent registered
public accounting firm, as well as with representatives of the Underwriters and
their counsel. At such conferences, the contents of the
Registration Statement, the Prospectus and the Statutory Prospectus and related
matters were discussed. We have not independently verified, and accordingly are
not confirming and assume no responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Prospectus or the Statutory Prospectus, except to the extent otherwise stated
herein. On the basis of the foregoing, no facts have come to our attention that
have caused us to believe (i) that the Registration Statement (except as to the
financial statements and schedules, related notes and other financial data and
statistical data derived therefrom as to which we express no comment, and the
matters covered by the other legal opinions rendered in connection with the
Agreement as to which we express no comment), at the date and time that the
Registration Statement became effective, 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, (ii) that the
Prospectus, as of its respective date, or the Statutory Prospectus, as of the
Applicable Time (in each case except as to the financial statements and
schedules, related notes and other financial and statistical data derived
therefrom as to which we express no comment, and the matters covered by the
other legal opinions rendered in connection with the Agreement as to which we
express no comment) as of its respective date or the date hereof contained or
contains any untrue statement of a material fact or omitted or omits 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, or (iii) that the
Prospectus (except as to the financial statements and schedules, related notes
and other financial data and statistical data derived therefrom, as to which we
express no comment) does not comply as to form in all material respects with the
requirements of the Securities Act and applicable rules and regulations of the
Securities and Exchange Commission thereunder.
This opinion is intended for the sole benefit of the several Underwriters and
may not be made available to or relied upon by any other person, firm or entity
without our prior written consent. This opinion is limited to the matters
expressly set forth in this letter, and no opinion has been implied, or may be
inferred, beyond the matters expressly stated. This opinion speaks only as to
law and facts in effect or existing as of the date hereof and we undertake no
obligation or responsibility to update or supplement this opinion to reflect any
facts or circumstances that may hereafter come to our attention or any changes
in any law that may hereafter occur.
Very truly yours,
XXXXXX GODWARD LLP
By:
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