Underwriting Agreement
Exhibit 1.1
___________ Shares
Common Stock
Dated
,
2006
___________,
2006
First Albany Capital Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of the several Underwriters
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of the several Underwriters
c/o First Albany Capital Inc.
Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Catalyst Pharmaceutical Partners, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the underwriters listed on Schedule A hereto (the
“Underwriters”) shares (the “Firm Shares”) of its
common stock, par value $0.001 per share (the “Common Stock”), and also proposes to issue
and sell to the Underwriters, at the option of the Underwriters, an aggregate of not more than
additional shares (the “Additional Shares”) of its Common Stock as set
forth below. The Firm Shares and the Additional Shares are herein collectively called the
“Shares.”
The terms, “herein,” “hereof,” “hereto,” “hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole and not to any particular section,
paragraph, sentence or other subdivision of this Agreement.
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1
(File No. 333-136039), including a prospectus, relating to the offer and sale of the Shares.
Except where the context otherwise requires, “Registration Statement,” as used herein, means such
registration statement, as amended at the time of such registration statement’s effectiveness for
purposes of Section 11 of the Act, as such section applies to the respective Underwriters (the
“Effective Time”), including (i) all documents filed as a part thereof, (ii) any
information contained in a prospectus filed with the Commission pursuant to Rule 424(b) under the
Act and deemed to be part of such registration statement at the time of effectiveness pursuant to
Rule 430(A) or Rule 430(C) under the Act, and (iii) any registration statement filed by the Company
to register the offer and sale of Shares pursuant to Rule 462(b) under the Act in connection with
the offering of the Shares (a “462(b) Registration Statement”). If it is contemplated, at
the time this Agreement is executed and delivered, that a post-effective amendment to the aforesaid
registration statement will be filed and must be declared effective before the offering of the
Shares may commence, the term “Registration Statement” shall include the aforesaid registration
statement as amended by said post-effective amendment.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectuses relating to the
Shares. Except where the context otherwise requires, “Preliminary Prospectus,” as used
herein, means each such preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as may be required under
the Act), or, if no such filing is required, the prospectus included in the Registration Statement
at the time it became effective under the Act, in each case in the form furnished by the Company to
you, for use by the Underwriters and by dealers in connection with the offering of the Shares.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule C attached hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written communication” (as
defined in Rule 405 under the Act) (each such road show, a “Road Show”).
“Disclosure Package,” as used herein, means (i) the Preliminary Prospectus dated [ ],
which is the form of preliminary prospectus most recently furnished to the Underwriters for use by
the Underwriters and dealers in connection with the offering of the Shares and (ii) the Permitted
Free Writing Prospectuses listed on Schedule B attached hereto.
“Applicable
Time,” as used herein, means ___
[AM/PM] (Eastern time) on
____________________, 2006
or such other time as agreed by the Company and First Albany.
“Issuer Free Writing Prospectus,” as used herein, means any “written communication”
(as defined in Rule 405 under the Securities Act), created by the Company for use by, or with the
permission of, the Company that constitutes an offer to sell or solicitation of an offer to buy the
Securities, including any Permitted Free Writing Prospectus listed on
Schedule B attached hereto.
The Company and the Underwriters agree as follows:
1. Purchase, Sale and Delivery of Shares. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at a purchase price of $ per share, the respective
numbers of Firm Shares set forth opposite the names of the Underwriters on Schedule A hereto,
subject to adjustment in accordance with Section 7 hereof.
The Company will deliver the Firm Shares to you through the facilities of The Depository Trust
Company (“DTC”) for the accounts of the several Underwriters
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against payment of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank identified by the Company to First Albany
Capital Inc. (“First Albany”) drawn to the order of the Company, at the office of Xxxxx
Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York time,
on _______________, 2006, or at such other time not later than seven full business days thereafter as
First Albany and the Company determine, such time being herein referred to as the “time of
purchase.” As used herein, “business day” shall mean a day on which the New York Stock Exchange
(the “NYSE”) is open for trading. The certificates for the Firm Shares so to be delivered
will be in the form of one or more global securities in definitive form deposited with DTC and
registered in the name of Cede & Co., as nominee for DTC, and will be made available for checking
at least 24 hours prior to the time of purchase.
In addition, upon written notice from First Albany given to the Company on or before the close
of business, New York time, on the 30th day subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Additional Shares at the same purchase price
per Additional Share as that to be paid for the Firm Shares. The Company agrees to sell to the
Underwriters the number of Additional Shares specified in such notice, and the Underwriters agree,
severally and not jointly, to purchase such Additional Shares. Such Additional Shares shall be
purchased for the account of each Underwriter in the same proportion as the number of Firm Shares
set forth opposite such Underwriter’s name on Schedule A hereto bears to the total number of Firm
Shares (subject to adjustment by First Albany to eliminate fractions and subject to adjustment in
accordance with Section 7 hereof) and may be purchased by the Underwriters only for the purpose of
covering over-allotments, if any, made in connection with the sale of the Firm Shares. No
Additional Shares shall be sold or delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered. The right to purchase the Additional Shares or any portion
thereof may be exercised from time to time and, to the extent not previously exercised, may be
surrendered and terminated at any time upon notice by First Albany to the Company.
Each time for the delivery of and payment for the Additional Shares, being herein referred to
as an “additional time of purchase,” which may be the time of purchase, shall be determined by
First Albany but shall be not later than five full business days after written notice of election
to purchase Additional Shares is given. The Company will deliver the Additional Shares being
purchased at each additional time of purchase to you through the facilities of DTC for the accounts
of the several Underwriters against payment of the purchase price therefor in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank identified by the
Company to First Albany drawn to the order of the Company, at the above office of Xxxxx Xxxxxxxxxx
LLP at 9:00 A.M., New York time. The certificates for the Additional Shares being purchased at
each additional time of purchase will be in the form of one or more global securities in definitive
form deposited with DTC and registered in the name of Cede & Co., as nominee for DTC, and will be
made available for checking at a reasonable time in advance of such additional time of purchase.
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It is understood that the several Underwriters propose to offer the Shares for sale to the
public as set forth in the Prospectus.
2. Representations and Warranties of the Company. The Company represents and warrants
to each of the Underwriters that:
(a) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of Delaware, with the requisite corporate power and authority
to own, lease and operate its properties and conduct its business as described in the
Registration Statement, the Disclosure Package or the Prospectus. The Company is duly
qualified to do business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to so qualify would not,
individually or in the aggregate, either (i) have a material adverse effect on the
business, operations, properties, prospects, management, condition (financial or other) or
results of operation of the Company and the Subsidiaries (as defined herein) taken as a
whole or (ii) prevent or materially interfere with consummation of the transactions
contemplated hereby (the occurrence of such effect or such prevention described in the
foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse
Effect”). Complete and correct copies of the charter and bylaws or other
organizational documents of the Company have been delivered to you, and, except as set
forth in the exhibits to the Registration Statement, no changes therein will be made on or
after the Applicable Time or on or before the time of purchase or, if applicable, any
additional time of purchase.
(b) This Agreement has been duly authorized, executed and delivered by the Company and
is a legal, valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms. The Shares have been duly and validly authorized by the Company
and, when issued and delivered by the Company against payment therefor as provided herein,
will be validly issued, fully paid and non-assessable and will not have been issued in
violation of any preemptive, subscription or similar right.
(c) No approval, authorization, consent or order of or filing with any federal, state,
local or other governmental commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory authority (including, but
not limited to, the Nasdaq Stock Market, Inc. (“Nasdaq”), or approval of the
stockholders of the Company, is required to be obtained or made by the Company in connection with the issuance and sale of the Shares or the consummation
by the Company of the other transactions contemplated hereby, other than (i) registration
of the offer and sale of the Shares under the Act, which has been effected (or, with
respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under
the Act, will be effected in accordance herewith), or (ii) any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters.
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(d) The execution and delivery by the Company of this Agreement and the performance by
the Company of its obligations hereunder, including the issuance and sale of the Shares and
the consummation of the other transactions contemplated hereby does not and will not
conflict with, result in any breach or violation of or constitute a default under (or
constitute any event which with notice, lapse of time or both would result in any breach or
violation of or constitute a default under or give the holder of any indebtedness the right
to require the repurchase, redemption or repayment of all or a part of such indebtedness
under), nor result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to (i) any
provisions of the charter, bylaws or other organizational documents of the Company,
(ii) any provision of any license, permit, indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company is a
party or by which it or any of its properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or rule, or any rule
or regulation of any self-regulatory organization or other non-governmental regulatory
authority (including, but not limited to, the Nasdaq), or (iv) any decree, judgment or
order applicable to the Company or any of its respective
properties.
(e) The Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of Shares
pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 PM, New York City time, on the date of
determination of the public offering price for the Shares; no stop order of the Commission
preventing or suspending the use of the Prospectus or any Preliminary Prospectus or
Permitted Free Writing Prospectus or the effectiveness of the Registration Statement has
been issued, and no proceedings for such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission; the Exchange Act Registration Statement has
become effective as provided in Section 12 of the Exchange Act.
(f) The Registration Statement complied when it became effective, complies as of the
Applicable Time and, as amended or supplemented, at the time of purchase, each additional
time of purchase, if any, and at all times during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the Registration Statement did not, as of the
Effective Time, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus complied, at the time it was filed with the
Commission, and complies as of the Applicable Time, in all material respects with the
requirements
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of the Act; the Disclosure Package, when considered together with the pricing
information set forth on Schedule B hereto, does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; the Prospectus will comply, as of its date, and as of the date the Prospectus
is filed with the Commission, and as of the time of purchase, each additional time of
purchase, if any, in all material respects, with the requirements of the Act; the
Prospectus will not, as of its date, and as of the date the Prospectus is filed with the
Commission, and the time of purchase, any additional time of purchase, as then amended or
supplemented, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty with respect to any statement contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus in reliance upon and in conformity with information concerning any
Underwriter furnished in writing by or on behalf of such Underwriter through First Albany
to the Company expressly for use in the Registration Statement, such Preliminary
Prospectus, the Prospectus or such Permitted Free Writing Prospectus.
(g) Prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act), or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than any Preliminary Prospectus and any
Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus
is accompanied or preceded by the most recent Preliminary Prospectus that contains a price
range, and that such Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after such Permitted Free Writing
Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any Permitted Free Writing
Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164 each of the
Preliminary Prospectuses dated ___________, 2006 is a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act,
including a price range where required by rule; neither the Company nor the Underwriters
are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using,
in connection with the offer and sale of the Shares, “free writing prospectuses” (as
defined in
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Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with respect to the
offering of the Shares contemplated by the Registration Statement; the parties hereto agree
and understand that the content of any and all “road shows” (as defined in Rule 433 under
the Act) related to the offering of the Shares contemplated hereby is solely the property
of the Company; the Company has caused there to be made available at least one version of a
“bona fide electronic road show” (as defined in Rule 433 under the Act) in a manner that,
pursuant to Rule 433(d)(8)(ii) under the Act, causes the Company not to be required,
pursuant to Rule 433(d) under the Act, to file, with the Commission, any Road Show.
(h) No person has a contractual or other right to act as an underwriter, or as a
financial advisor to the Company, in connection with the offer and sale of the Shares or,
except as described in the Registration Statement, the Disclosure Package and the
Prospectus, and except for such rights as have been validly waived, to cause the Company to
register under the Act the offer and sale of any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, or to include any such shares
or interests in the Registration Statement or the offering contemplated thereby.
(i) The capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement, the Disclosure
Package and the Prospectus. As of the date of this Agreement, the Company’s capitalization
is as set forth under the heading “Actual” in the section of the Registration Statement,
any Preliminary Prospectus and the Prospectus entitled “Capitalization,” and as of the time
of purchase and any additional time of purchase, as the case may be, the Company’s
capitalization shall be as set forth under the heading “As Adjusted” in the section of the
Registration Statement and the Prospectus entitled “Capitalization” (subject to the
issuance of Additional Shares at any additional time of purchase). All of the issued and
outstanding shares of capital stock of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in violation of any
preemptive, subscription or similar right. Except as described in the Registration
Statement, the Disclosure Package and the Prospectus (i) no person has a contractual or
other right to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company and (ii) no
person has any preemptive or similar rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company.
(j) Upon the closing of the sale of the Shares to the Underwriters, no shares of
preferred stock of the Company shall be issued or outstanding, and no
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holder of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase capital
stock or any other securities of the Company shall have any right to acquire any shares of
preferred stock of the Company.
(k) The Company has no subsidiaries (as defined in the Act). Except as described in
the Registration Statement, the Disclosure Package and the Prospectus, the Company does not
own, directly or indirectly, any long-term debt or any equity interest in any firm,
corporation, partnership, joint venture, association or other entity.
(l) The financial statements, together with the related schedules and notes, included
in the Registration Statement, the Disclosure Package or the Prospectus present fairly the
financial position of the Company as of the dates indicated and the results of operations
and cash flows of the Company for the periods specified, have been prepared in compliance
with the requirements of the Act and are in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved. Any pro forma
financial statements or data included in the Registration Statement, the Disclosure Package
or the Prospectus comply as to form in all material respects with the applicable accounting
requirements of the Act, and the adjustments used to prepare such pro forma financial
statements or data are reasonable and have been properly applied to the historical amounts
in the compilation of those statements or data. The other financial and statistical data
set forth in the Registration Statement, the Disclosure Package or the Prospectus are
accurately presented and prepared on a basis consistent with such financial statements and
with the books and records of the Company. There are no financial statements (historical
or pro forma) that are required to be included in the Registration Statement, any
Preliminary Prospectus or the Prospectus that are not included as required. Xxxxx Xxxxxxxx
LLP, whose report on the financial statements of the Company is filed with the
Commission as part of the Registration Statement, any Preliminary Prospectus or the
Prospectus, are independent public accountants as required by the Act and by Rule 3600T of
the Public Company Accounting Oversight Board. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has no material
liabilities or obligations, direct or contingent (including any off-balance sheet
obligations), and the Company, together with its “related parties,” is not the “primary
beneficiary” of any “variable interest entities” (as such terms are used in Financial
Accounting Standards Board Interpretation No. 46). Any disclosure contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus that meets the definition of “non-GAAP financial measures” set forth in
the rules and regulations of the Commission comply with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Act.
(m) Subsequent to the date of the most recent audited balance sheet of the Company
included in the Registration Statement, the Disclosure Package and the Prospectus, in each
case excluding any amendments or supplements to the
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foregoing made after the execution of this Agreement, except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus, there has not been (i)
any material adverse change, or any development involving a prospective material adverse
change, in the business, operations, properties, prospects, management, condition
(financial or other) or results of operations of the Company, (ii) any transaction which is
material to the Company, (iii) any obligation or liability, direct or contingent, which is
material to the Company, incurred by the Company, (iv) any change in the capital stock or
outstanding indebtedness of the Company or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company.
(n) The Company is not in breach or violation of, or in default under (nor has any
event occurred which with notice, lapse of time or both would result in any breach or
violation of, or constitute a default under, or give the holder of any indebtedness the
right to require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (i) its charter, bylaws or other organizational documents, (ii) any
provision of any license, permit, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company is a party or by it or any of its properties may be bound or affected, (iii) any federal,
state, local or foreign law, regulation or rule or any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority (including, but
not limited to, the Nasdaq), or (iv) any decree, judgment or order applicable to the
Company, or any of its respective properties, except, in the case
of clauses (ii) and (iii), such as would not, individually or in the aggregate, have a
Material Adverse Effect.
(o) The Company has obtained and possesses all necessary licenses, permits,
authorizations, consents and approvals and has made all necessary filings required under
any federal, state, local or foreign law, regulation or rule (collectively,
“Permits”), and has obtained all necessary authorizations, consents and approvals
from other persons (collectively, “Approvals”), in order to conduct its business as
described in the Registration Statement, the Disclosure Package or the Prospectus, other
than such Permits and Approvals the failure of which to obtain, possess or file would not,
individually or in the aggregate, have a Material Adverse Effect. The Company is not in
violation of, or in default under, or has received notice of any proceedings relating to
revocation or modification of, any Permit or Approval, except where such violation,
default, revocation or modification would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) All contracts, leases, documents, properties or affiliate transactions of a
character required to be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so described or filed as
required. Except as described in the Registration Statement, the Disclosure Package and
the Prospectus, there are no actions, suits, claims,
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investigations
or proceedings pending or, to the Company’s knowledge,
threatened, with respect to the Company to
which the Company or any of its directors or officers is a party, or of which any of their
respective properties is subject, at law or in equity, before or by any federal, state,
local or foreign court or governmental commission, board, body, authority or agency, before
any arbitrator or mediation panel or other body, or before or by any self-regulatory
organization or other non-governmental regulatory authority (including, but not limited to,
the Nasdaq).
(q) The Company has good title to all real and personal property owned, or described
in the Registration Statement, the Disclosure Package or the Prospectus as being owned, by
it, free and clear of all liens, encumbrances and defects except such as are described in
the Registration Statement, the Disclosure Package and the Prospectus or such as would not,
individually or in the aggregate, have a Material Adverse Effect. Except as described in
the Registration Statement, the Disclosure Package and the Prospectus, all real property
and buildings held under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as do not materially interfere with the use made
and proposed to be made of such property and buildings by the Company.
(r) The Company and its properties, assets and operations are in compliance with, and
the Company holds all permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so comply or to hold such
permits, authorizations or approvals would not, individually or in the aggregate, have a
Material Adverse Effect. There are no past, present or, to the knowledge of the Company,
reasonably anticipated future events, conditions, circumstances, activities, practices,
actions, omissions or plans that could reasonably be expected to give rise to any material
costs or liabilities to the Company under, or to interfere with or prevent material
compliance by the Company with, Environmental Laws. Except as would not, individually or
in the aggregate, have a Material Adverse Effect, the Company (i) is not the subject of any
investigation, (ii) has not received any notice or claim, (iii) is not a party to or
affected by any pending or threatened action, suit or proceeding, (iv) is not bound by any
judgment, decree or order and (v) has not entered into any agreement, in each case relating
to any actual or alleged violation of any Environmental Law or any actual or alleged
release or threatened release or clean-up (at any location) of any Hazardous Materials (as
defined below). As used herein, “Environmental Law” means any federal, state,
local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, clean-up or restoration of the environment or
natural resources, including those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Material” means any material
(including, without limitation, pollutants, contaminants and hazardous or toxic substances
or wastes) that is regulated by or may give rise to liability under any Environmental Law.
In the ordinary course of its business, the Company conducts a periodic review of the
effect of the Environmental Laws on its business, operations and
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properties, in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required
for cleanup, closure of properties or compliance with the Environmental Laws, any related
constraints on operating activities and any potential liabilities to third parties).
(s) Other than as set forth in the Registration Statement, the Disclosure Package and
the Prospectus, the Company owns or has valid licenses to use all patents, trademarks,
servicemarks, trade names, copyrights, trade secrets, information, proprietary rights and
processes (“Intellectual Property”) that are described in the Registration
Statement, the Disclosure Package or the Prospectus as owned, licensed or otherwise
controlled by the Company or are material to its business as currently conducted or as
proposed to be conducted (including the commercialization of products or services described
in the Registration Statement, the Disclosure Package or the Prospectus as under
development), in each case as such business is described in the Registration Statement, the
Disclosure Package or the Prospectus (collectively, the “Company IP”), without
infringement of the rights of others, and the Company has taken all steps reasonably
necessary to secure interests in the Company IP. The Company is not subject to any
judgment, order, injunction or decree, or is a party to any agreement, which restricts or
impairs in any material respect the Company’s use of the Company IP. To the knowledge of
the Company, no claims have been asserted by any third party with respect to the validity,
scope or enforceability of the Company IP, or with respect to the Company’s ownership of or
right to use any of the Company IP, and there is no reasonable basis for any such claim.
The Company has complied with the terms of any agreement pursuant to which the Company IP
has been licensed to the Company, and except as would not,
individually or in the aggregate, have a Material Adverse Effect, all such agreements are in full force and effect.
Except as described in the Registration Statement, the Disclosure Package and the
Prospectus, the Company is not aware of any options, licenses or agreements pursuant to
which third parties possess rights to the Company IP. None of the technology employed by
the Company has been obtained or is used or proposed to be used by the Company in violation
of any rights of a third party. Except as described in the Registration Statement, the
Disclosure Package and the Prospectus, to the Company’s knowledge the Company has not
infringed and is not infringing and, by conducting its business as described in the
Registration Statement, the Disclosure Package or the Prospectus and commercializing the
products under development described therein, would not infringe the Intellectual Property
of a third party, and the Company has not received notice of a claim by a third party to
the contrary.
(t) The clinical, pre-clinical and other studies and tests conducted by or on behalf
of or sponsored by the Company or in which the Company or its products or product
candidates have participated that are described in the Registration Statement, the
Disclosure Package or the Prospectus or the results of which are referred to in the
Registration Statement, the Disclosure Package or the Prospectus were and, if still
pending, are being conducted in all material respects in accordance with standard medical
and scientific research procedures. The descriptions in the Registration Statement, the
Disclosure Package or the Prospectus of the results of
11
such studies and tests are accurate and complete in all material respects and fairly
present the data derived from such studies and tests, and the Company has no knowledge of
any other studies or tests the results of which, when considered in light of the
disclosures in the Registration Statement, the Disclosure Package and the Prospectus, are
inconsistent with or otherwise call into question the results described or referred to in
the Registration Statement, the Disclosure Package or the Prospectus. Except to the extent
described in the Registration Statement, the Disclosure Package and the Prospectus, the
Company has operated and currently is in compliance in all material respects with all
applicable rules, regulations and policies of the U.S. Food and Drug Administration and
comparable drug regulatory agencies outside of the United States (collectively, the
“Regulatory Authorities”). Except to the extent described in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has not received any
notices or other correspondence from the Regulatory Authorities or any other governmental
agency requiring the termination, suspension or material modification of any clinical or
pre-clinical studies or tests that are described in the Registration Statement, the
Disclosure Package or the Prospectus or the results of which are referred to in the
Registration Statement, the Disclosure Package and the Prospectus.
(u) All tax returns required to be filed by the Company have been filed, other than
those filings not yet due (including available extensions) or being contested in good
faith, and all taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due pursuant to such returns or pursuant to any assessment received
by the Company have been paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(v) The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance 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 conformity with generally
accepted accounting principles and to maintain asset accountability, (iii) access to assets
is permitted only in accordance with management’s general or specific authorization and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The
Company and its directors and officers each are in compliance in all material
respects, with respect to the Company, with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx Act”) and the rules and regulations of the Commission and the
Nasdaq promulgated thereunder. The Company has established and maintains and evaluates
“disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15
under the Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the Company is made
known to the Company’s Chief Executive Officer and its Chief Financial Officer by others
within the Company, and such disclosure controls and procedures are effective to perform
the functions
12
for which they were established; the Company’s auditors and the Audit Committee of the
Board of Directors of the Company have been advised of: (i) any significant deficiencies in
the design or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize, and report financial data; and (ii) any fraud,
whether or not material, that involves management or other employees who have a role in the
Company’s internal controls; all material weaknesses in internal controls have been
identified for the Company’s auditors; since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and material weaknesses.
(w) The Company has provided you true, correct and complete copies of all
documentation pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company to any director or executive officer of the Company,
or to any family member or affiliate of any director or executive officer of the Company.
On or after July 30, 2002, the Company has not, directly or indirectly: (i) extended
credit, arranged to extend credit, or renewed any extension of credit, in the form of a
personal loan, to or for any director or executive officer of the Company, or to or for any
family member or affiliate of any director or executive officer of the Company; or (ii)
made any material modification, including any renewal thereof, to any term of any personal
loan to any director or executive officer of the Company, or any family member or affiliate
of any director or executive officer, which loan was outstanding on July 30, 2002.
(x) The Company maintains insurance of the types and in amounts reasonably adequate
for their respective businesses, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and against theft, damage, destruction,
acts of vandalism and other risks customarily insured against, all of which insurance is in
full force and effect.
(y) No labor dispute with the employees of the Company or, to the knowledge of the
Company, any of the customers or suppliers of the Company exists. To the knowledge of the
Company, no such dispute is imminent that would, individually or in the aggregate, have a
Material Adverse Effect.
(z) The Company is not engaged in any unfair labor practice. Except for matters which
would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the Company’s knowledge, threatened
against the Company before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements is pending
or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company and (C) no union representation dispute
currently existing concerning the employees of the Company, and (ii) to the Company’s
knowledge, (A) no union organizing activities are currently taking place concerning the
employees of the Company and (B) there has been no violation of any federal,
13
state, local or foreign law relating to discrimination in the hiring, promotion or pay
of employees, any applicable wage or hour laws or any provision of the Employee Retirement
Income Security Act of 1974 (“ERISA”) or the rules and regulations promulgated
thereunder concerning the employees of the Company.
(aa) The Company has not, nor, to the Company’s knowledge, has any employee or agent
of the Company made any payment of funds of the Company or received or retained any funds
in violation of any law, rule or regulation, which payment, receipt or retention of funds
is of a character required to be disclosed in the Registration Statement, any Preliminary
Prospectus or the Prospectus.
(bb) The Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of
its directors and officers and of all securities holders of the Company (assuming, for this
purpose, the exercise or conversion of all outstanding securities or other rights
exercisable or convertible, directly or indirectly, for shares of Common Stock).
(cc) The Company has not sent or received any notice of termination of, or intent not
to renew, any of the contracts or agreements referred to or described in the Registration
Statement, the Disclosure Package or the Prospectus or referred to or described in or filed
as an exhibit to the Registration Statement, and no such termination has been threatened by
the Company or, to the knowledge of the Company, by any other party to any such contract or
agreement.
(dd) All statistical and market-related data included in the Registration Statement,
the Disclosure Package or the Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate, and, to the extent required, the Company has
obtained the written consent to the use of such data from such sources.
(ee) The Company is not, and at no time during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares will not be, and, after giving
effect to the offering and sale of the Shares, will not be an “investment company” or an
entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(ff) To the Company’s knowledge, there are no affiliations or associations between any
member of the National Association of Securities Dealers, Inc. (“NASD”) and the
Company or any of the Company’s officers, directors or 5% or greater securityholders,
except as described in the Registration Statement (excluding the exhibits thereto), the
Disclosure Package and the Prospectus.
14
In addition, any certificate signed by any officer of the Company and delivered to you or
counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
3. Certain Covenants of the Company. The Company hereby agrees:
(a) if, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement, or a Registration Statement under
Rule 462(b) under the Act, to be filed with the Commission and become effective before the
offering of the Shares may commence, to use its best efforts to cause such post-effective
amendment or such Registration Statement to be filed and become effective as soon as
possible;
(b) to advise you promptly and (if requested by you) to confirm such advice in
writing, (i) when any post-effective amendment to the Registration Statement becomes
effective and (ii) when the Prospectus is filed with the Commission pursuant to Rule 424(b)
under the Act (which the Company agrees to file in a timely manner in accordance with such
Rules);
(c) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states as you may designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service of process under
the laws of any such state (except service of process with respect to the offering and sale
of the Shares); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threat of any proceeding for such purpose;
(d) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may reasonably request
for the purposes contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act in
connection with the sale of the Shares, to prepare promptly upon request such amendment or
amendments to the Registration Statement and such prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the Act;
(e) to advise you promptly, confirming such advice in writing (if requested by you),
of any request by the Commission for amendments or
15
supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus
or any Permitted Free Writing Prospectus or for additional information with respect
thereto, or of notice of institution of proceedings for, or the entry of, a stop order
suspending the effectiveness of the Registration Statement and, if the Commission should
enter a stop order suspending the effectiveness of the Registration Statement, to use its
best efforts to obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus and to file
no such amendment or supplement to which you shall object in writing;
(f) if necessary or appropriate in connection with the offer and sale of the Shares,
to file a Rule 462(b) Registration Statement in the manner prescribed by the Act so that
such Rule 462(b) Registration Statement shall become effective upon filing;
(g) to furnish to you and, upon request, to each of the other Underwriters for a
period of five years from the date of this Agreement (i) copies of any reports or
other communications which the Company shall send to its stockholders or shall from time to
time publish or publicly disseminate, (ii) copies of all annual, quarterly, current and
transition reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms, as may be designated by the Commission, (iii) copies of documents or reports
filed with the Nasdaq or with any national securities exchange on which any class of
securities of the Company is listed and (iv) such other information as you may reasonably
request regarding the Company, in each case as soon as
reasonably practicable after such reports, communications, documents or information become
available;
(h) to advise the Underwriters promptly of the happening of any event known to the
Company within the period during which a prospectus is required by the Act to be delivered
under the Act (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, which event could require the making
of any change in the Prospectus then being used so that the Prospectus would not include an
untrue statement of material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they are made,
not misleading, and, during such time, to prepare and furnish, at the Company’s expense, to
the Underwriters promptly such amendments to the Registration Statement and supplements to
the Prospectus as may be necessary to reflect any such change and to furnish you a copy of
such proposed amendment or supplement before filing any such amendment or supplement with
the Commission;
(i) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of
the Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) of the Act) and ending not later than
March 31, 2008;
16
(j) to furnish to you three conformed copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including all exhibits
thereto) and sufficient additional conformed copies (other than exhibits) for distribution
of a copy to each of the other Underwriters;
(k) to furnish to you as soon as reasonably practicable prior to the time of purchase
and any additional time of purchase, as the case may be, but not later than two business
days prior thereto, a copy of the latest available unaudited interim consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by the
Company’s independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 5(e) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth
under the caption “Use of Proceeds” in the Prospectus;
(m) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, any Rule 462(b) Registration Statement, each
Preliminary Prospectus, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii)
the registration, issue, sale and delivery of the Shares, including any stock or transfer
taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares
to the Underwriters, (iii) the printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including associated filing fees and the
reasonable legal fees and disbursements of counsel for the Underwriters) and the printing
and furnishing of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the Nasdaq Global Market and any
registration thereof under the Exchange Act, (vi) review of the public offering of the
Shares by the NASD Regulation, Inc. (including associated filing fees and the reasonable
legal fees and disbursements of counsel for the Underwriters), (vii) the costs and expenses
of the Company relating to presentations or meetings undertaken in connection with the
marketing of the offer and sale of the Shares to prospective investors and your sales
forces, including, without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel, lodging and other expenses incurred by the officers of the
Company and any such consultants, and the cost of any aircraft
chartered by or on behalf of the Company in connection with
the road show, (viii) the costs and expenses of qualifying the Shares for inclusion in
DTC’s book-entry settlement system and (ix) the performance of the Company’s other
obligations hereunder;
17
(n) to comply with Rule 433(g) under the Act;
(o) for so long as the delivery of a prospectus (whether physically or through
compliance with Rule 172 under the Act or any similar rule) is required in connection with
the offer or sale of the Shares, to furnish to you a reasonable period of time before
filing with the Commission a copy of any document proposed to be filed pursuant to Section
13, 14 or 15(d) of the Exchange Act and to not make any filing to which you shall
reasonably object;
(p) to furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet, statement of income,
stockholders’ equity and cash flows of the Company for such fiscal year, accompanied by a
copy of the report thereon of nationally recognized independent certified public
accountants duly registered with the Public Company Oversight Accounting Board);
(q) to not take, directly or indirectly, any action designed to or which may
constitute or which might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(r) not to sell, offer or agree to sell, contract to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable or exercisable for Common Stock
or any warrants or other rights to purchase Common Stock or any such securities or any
other securities of the Company that are substantially similar to Common Stock, or file or
cause to be declared effective a registration statement under the Act relating to the offer
and sale of any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or any warrants or other rights to purchase Common Stock or
any other securities of the Company that are substantially similar to Common Stock, for a
period of 180 days after the date hereof (the “Lock-Up Period”), without the prior
written consent of First Albany, except for (i) the registration of the offer and sale of
the Shares, and the sales of the Shares, to the Underwriters pursuant to this Agreement,
(ii) issuances of Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement (excluding the exhibits thereto), the Disclosure
Package and the Prospectus and (iii) the issuance of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option plans described in the Registration
Statement (excluding the exhibits thereto), the Disclosure Package and the Prospectus;
provided, however, that, if (i) during the period that begins on the date
that is 15 calendar days plus 3 business days before the last day of the Lock-Up Period and
ends on the last day of the Lock-Up Period, the Company issues an earnings release or
significant news or a significant event relating to the Company occurs; or (ii) prior to
the expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed by this Section 3(r) shall continue to apply until the expiration
18
of the date that is 15 calendar days plus 3 business days after the date on which such
significant news, such significant event or the issuance of such earnings release occurs;
(s) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock;
(t) subject to Section 3(o) hereof, to file promptly all reports and any definitive
proxy or information statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus (whether physically or through compliance with Rule
172 under the Act or any similar rule) is required in connection with the offering or sale
of the Shares, and to promptly notify you of such filing;
(u) not to, directly or indirectly, offer or sell any Shares by means of any
“prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning
of the Act) in connection with the offer or sale of the Shares, in each case other than the
Preliminary Prospectuses and the Permitted Free Writing Prospectuses, if any; not to,
directly or indirectly, prepare, use or refer to any Permitted Free Writing Prospectus
except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted
Free Writing Prospectus is accompanied or preceded by the most recent Preliminary
Prospectus that contains a price range, and that such Permitted Free Writing Prospectus is
so sent or given after the Registration Statement was filed with the Commission (and after
such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the
Act, filed with the Commission), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433
(without reliance on subsections (b), (c) and (d) of Rule 164 each of the Preliminary
Prospectuses dated [insert dates of red herrings actually distributed] is a prospectus
that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act, including a price range where required by rule; and
(v) to use its best efforts to cause the Common Stock to be listed for quotation on
the Nasdaq Global Market and to maintain such listing.
4. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any
reason other than the termination of this Agreement pursuant to the last paragraph of Section 7
hereof or the default by one or more of the Underwriters in its or their respective obligations
hereunder, the Company agrees, in addition to paying the amounts described in Section 3(m) hereof,
to reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of their counsel.
5. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder to purchase Shares at the time of purchase or any additional time of
purchase shall be subject to the accuracy of the representations and warranties of the
19
Company on the date hereof and at the time of purchase and, with respect to the purchase of
Shares at any additional time of purchase, at such additional time of purchase, the performance by
the Company of its obligations hereunder and to the following additional conditions precedent:
(a) You shall have received, at the time of purchase and at any such additional time
of purchase, as the case may be, an opinion of Akerman Senterfitt, counsel for the Company,
addressed to the Underwriters and dated the time of purchase or such additional time of
purchase, as the case may be, with reproduced copies for each of the other Underwriters and
in form and substance satisfactory to you, in the form set forth in Exhibit B
hereto.
(b) You shall have received at the time of purchase and at any such additional time of
purchase, as the case may be, the opinion of Xxxxxxx & Xxxxx, patent counsel to Brookhaven
Science Associates, addressed to the Underwriters and dated the time of purchase or such
additional time of purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form and substance satisfactory to you, in the form set forth in
Exhibit C hereto.
(c) You shall have received at the time of purchase and at any such additional time of
purchase, as the case may be, the opinion of Xxxxx, Xxxxxx & XxXxxxxx, PC, regulatory
counsel to the Company, addressed to the Underwriters and dated the time of purchase or
such additional time of purchase, as the case may be, with reproduced copies for each of
the other Underwriters and in form and substance satisfactory to you, in the form set forth
in Exhibit D hereto.
(d) You shall have received at the time of purchase and at any such additional time of
purchase, as the case may be, the opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, dated the time of purchase or such additional time of purchase, as the case
may be, with respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Disclosure Package, the Prospectus and such other related
matters as the Underwriters may require.
(e) You shall have received from Xxxxx Xxxxxxxx LLP letters dated, respectively, the
date of this Agreement and the time of purchase and any such additional time of purchase,
as the case may be, and addressed to the Underwriters (with reproduced copies for each of
the other Underwriters) in the forms approved by you.
(f) No amendment to the Registration Statement or supplement to any Preliminary
Prospectus or to the Prospectus shall at any time have been filed to which you have
objected in writing.
(g) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been
filed and shall have become effective under the Act; the registration statement on form 8-A
under the Exchange Act shall have become effective; and, if
20
Rule 430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30 PM New York City time on
the second full business day after the date of this Agreement or such shorter period of
time prescribed by such Rule 424(b).
(h) Prior to the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) the Disclosure
Package shall not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and (iv) the Prospectus, and no
amendment or supplement thereto shall include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(i) Between the time of execution of this Agreement and the time of purchase or any
additional time of purchase, as the case may be (i) no change or any development involving
a prospective change in the business, operations, properties, prospects, management,
condition (financial or other) or results of operations of the Company shall occur or
become known and (ii) no transaction shall have been entered into by the Company, the
effect of which, in any case referred to in clause (i) or (ii) above, is, in your sole
judgment, so material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Shares as contemplated by the Registration Statement
(exclusive of any amendment thereof ), the Disclosure Package or the Prospectus (exclusive
of any supplement thereto).
(j) The Company will, at the time of purchase or any such additional time of purchase,
as the case may be, deliver to you a certificate, dated the time of purchase or such
additional time of purchase, as the case may be, signed by its chief executive officer and
its chief financial officer, in the form attached hereto as Exhibit E.
(k) You shall have received each of the signed Lock-Up Agreements referred to in
Section 2(bb) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and such additional time of purchase, as the case may be.
(l) The Shares shall have been approved for inclusion in the Nasdaq Global Market,
subject only to notice of issuance at or prior to the time of purchase or any such
additional time of purchase, as the case may be.
21
(m) Between the time of execution of this Agreement and the time of purchase or any
such additional time of purchase, as the case may be (i) no downgrading shall have occurred
in the rating accorded any securities of, or guaranteed by, the Company or any Subsidiary
by any “nationally recognized statistical rating organization,” as that term is defined in
Rule 436(g)(2) under the Act, and (ii) no such organization shall have announced or given
notice of any intended or potential downgrading in any such rating or of a possible change
in any such rating that does not indicate the direction of the possible change.
(n) The Company shall have furnished to you such other documents and certificates as
to the accuracy and completeness of any statement in the Registration Statement, the
Disclosure Package and the Prospectus as of the time of purchase and any additional time of
purchase, as the case may be, as you may reasonably request.
6. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement. Until such time as this
Agreement has become effective, it may be terminated by you or the Company at any time and for any
reason.
The obligations of the several Underwriters hereunder shall be subject to termination in your
absolute discretion if subsequent to the execution and delivery of this Agreement, there shall have
occurred: (i) any change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in your sole judgment, be likely to
prejudice materially the success of the proposed issue, sale or distribution of the Shares, whether
in the primary market or in respect of dealings in the secondary market; (ii) any suspension or
material limitation of trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market, or any setting of minimum prices for trading on the New York Stock Exchange or the
Nasdaq National Market, or any suspension or material limitation of trading of any securities of
the Company on the Nasdaq or on any exchange or in the over-the-counter market; (iii) any banking
moratorium declared by U.S. Federal or New York authorities; (iv) any major disruption in
commercial banking or settlements of securities or clearance services in the United States; or (v)
any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United
States, any declaration of war by Congress or any other national or international calamity or
emergency if, in your sole judgment, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impracticable or inadvisable to proceed with completion
of the offering or the sale of and payment for the Shares on the terms and in the manner
contemplated by the Registration Statement, the Disclosure Package or the Prospectus.
If you elect to terminate this Agreement as provided in this Section 6, you shall notify the
Company and each other Underwriter promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unwilling or
22
unable to comply with any of the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided in Sections 3(m), 4 and
8 hereof), and the Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 8 hereof) or to one another hereunder.
7. Increase in Underwriters’ Commitments. Subject to Sections 5 and 6 hereof, if any
Underwriter shall default in its obligation to purchase and pay for the Firm Shares to be purchased
by it hereunder, and if the number of Firm Shares which all Underwriters so defaulting shall have
agreed but failed to purchase and pay for does not exceed 10% of the total number of Firm Shares,
then the non-defaulting Underwriters shall purchase and pay for (in addition to the aggregate
number of Firm Shares they are obligated to purchase pursuant to Section 1 hereof) the number of
Firm Shares agreed to be purchased by all such defaulting Underwriters, as hereinafter provided.
Such Firm Shares shall be purchased and paid for by such non-defaulting Underwriter or Underwriters
in such amount or amounts as you may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Firm Shares shall be purchased and paid for by
all non-defaulting Underwriters pro rata in proportion to the aggregate number of Firm Shares set
opposite the names of such non-defaulting Underwriters in Schedule A hereto.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with this Section 7, the Company or you
shall have the right to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement, the Disclosure Package or the
Prospectus or other documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 7 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.
If the aggregate number of Shares which the defaulting Underwriter or Underwriters agreed to
purchase exceeds 10% of the total number of Shares which all Underwriters agreed to purchase
hereunder, and if neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five business day period stated above for the purchase of all the Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall terminate
without further act or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any non-defaulting Underwriter
to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting
23
Underwriter from liability in respect of any default of such Underwriter under this Agreement.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its partners,
directors and officers, and any person who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the Company) or arises
out of or is based upon any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, except insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use in, the Registration Statement or arises out of or is based upon any
omission or alleged omission to state a material fact in the Registration Statement in connection
with such information, which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary to make such
information not misleading, (ii) any untrue statement or alleged untrue statement of a material
fact included in any Prospectus (the term Prospectus for the purpose of this Section 8 being deemed
to include any Preliminary Prospectus, the Prospectus and any amendments or supplements to the
foregoing), in any Issuer Free Writing Prospectus, in any “issuer information” (as defined in Rule
433 under the Act) of the Company or arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except, with respect to such
Prospectus or Permitted Free Writing Prospectus, insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the Company expressly for
use in, such Prospectus or Permitted Free Writing Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or Permitted Free Writing
Prospectus in connection with such information, which material fact was not contained in such
information and which material fact was necessary in order to make the statements in such
information, in the light of the circumstances under which they were made, not misleading, (iii)
any untrue statement or alleged untrue statement made by the Company in Section 2 hereof or the
failure by the Company to perform, when and as required, any agreement or covenant contained
herein; or (iv) any untrue statement or alleged untrue statement of any material fact contained in
any audio or visual materials provided by the Company or based upon written information furnished
by or on behalf of
24
the Company including, without limitation, slides, videos, films or tape recordings used in
connection with the marketing of the Shares.
If any action, suit or proceeding (each, a “Proceeding”) is brought against an
Underwriter or any such person in respect of which indemnity may be sought against the Company
pursuant to the foregoing paragraph, such Underwriter or such person shall promptly notify the
Company in writing of the institution of such Proceeding and the Company shall assume the defense
of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission to
so notify the Company shall not relieve the Company from any liability which the Company may have
to any Underwriter or any such person or otherwise. Such Underwriter or such person shall have the
right to employ its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it or them which are different from, additional to or in conflict with those available to the
Company (in which case the Company shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company and paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The Company shall not be
liable for any settlement of any Proceeding effected without the written consent of the Company,
but if settled with the written consent of the Company, the Company agrees to indemnify and hold
harmless any Underwriter and any such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested the Company to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the Company agrees that it shall be
liable for any settlement of any Proceeding effected without the Company’s written consent if (i)
such settlement is entered into more than 60 business days after receipt by the Company of the
aforesaid request, (ii) the Company shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) the indemnified party
shall have given the Company at least 30 days’ prior notice of its intention to settle. The
Company shall not, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such indemnified party.
25
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the Company, its
directors and officers, and any person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which the Company or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in writing
by or on behalf of such Underwriter through you to the Company expressly for use in, the
Registration Statement (or in the Registration Statement as amended by any post-effective amendment
thereof by the Company), or arises out of or is based upon any omission or alleged omission to
state a material fact in such Registration Statement in connection with such information, which
material fact was not contained in such information and which material fact was required to be
stated in such Registration Statement or was necessary to make such information not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use in, a Prospectus or a Permitted Free
Writing Prospectus, or arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the light of the circumstances
under which they were made, not misleading.
If any Proceeding is brought against the Company or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the Company or
such person shall promptly notify such Underwriter in writing of the institution of such Proceeding
and such Underwriter shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such Underwriter shall not
relieve such Underwriter from any liability which such Underwriter may have to the Company or any
such person or otherwise. The Company or such person shall have the right to employ their or its
own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been authorized in
writing by such Underwriter in connection with the defense of such Proceeding or such Underwriter
shall not have, within a reasonable period of time in light of the circumstances, employed counsel
to defend such Proceeding or such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or additional to or in
conflict with those available to such Underwriter (in which case such Underwriter shall not have
the right to direct the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), in any of which events such
fees and expenses shall be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more than one
26
separate counsel (in addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the Company and any such person
from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such settlement is entered
into more than 60 business days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under subsections (a) or (b), as applicable, of this Section 8 in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses, liabilities or
claims (i) 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 or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the Company, and
the total underwriting discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of the Company on the one hand
and of the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed to include any
legal or other fees
27
or expenses reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 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 that
does not take account of the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 8, in no case shall any Underwriter be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to the public exceeds
the amount of any damage which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to
their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section 8 and the covenants,
warranties and representations of the Company contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any Underwriter, its
partners, directors or officers or any person (including each partner, officer or director of such
person) who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or by or on behalf of the Company, its directors or officers or any person who
controls any of the foregoing within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the issuance and delivery of
the Shares. The Company and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company, against any of the
officers or directors of the Company in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Permitted Free Writing Prospectus or any Issuer Free Writing Prospectus.
9. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient
in all respects if delivered or sent to First Albany Capital Inc., Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: Syndicate Department; and if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at 000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxx Xxxxxx, XX 00000, Attention: Chief Executive Officer.
10. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which they may be acting,
on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the
Underwriters in connection with the offering and the process leading up
28
to the offering is as independent contractors and not in any other capacity. Furthermore, the
Company agrees that it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is currently advising the
Company on related or other matters). The Company agrees that it will not claim that the
Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary
or similar duty to the Company, in connection with such transaction or the process leading thereto.
11. Information Furnished by the Underwriters. The statements set forth in the eighth
paragraph, and in the section “Stabilization and Short Positions,” under the caption “Underwriting”
in the Prospectus, only insofar as such statements relate to the amount of selling concession and
reallowance or to over-allotment and stabilization activities that may be undertaken by the
Underwriters, constitute the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 2 and 8 hereof.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and you and the
Company consent to the jurisdiction of such courts and personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any court in which any Claim
arising out of or in any way relating to this Agreement is brought by any third party against an
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) waives all right
to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding thereupon, and may be enforced in any other courts in the jurisdiction to
which the Company is or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters, the Company and, to the extent provided in Section 8 hereof,
the controlling persons, directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
29
15. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
30
If the foregoing correctly sets forth the understanding among the Company and the
Underwriters, please so indicate in the space provided below for such purpose, whereupon this
letter and your acceptance shall constitute a binding agreement among the Company and the several
Underwriters.
| Very truly yours, Catalyst Pharmaceutical Partners, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed to as of the date
first above written:
first above written:
First Albany Capital Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of the several Underwriters
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of the several Underwriters
| By: | First Albany Capital Inc. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
31
SCHEDULE A
| Underwriter | Number of Firm Shares | |||
First Albany Capital Inc. |
[ ] | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
[ ] | |||
[ ] |
[ ] | |||
[ ] |
[ ] | |||
Total |
[ ] | |||
SA-1
SCHEDULE B
Permitted Free Writing Prospectuses
[(Excluding Electronic Roadshows)]
[ ]
B-1
EXHIBIT A
Common Stock
__________, 2006
First Albany Capital Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of the several Underwriters
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of the several Underwriters
c/o First Albany Capital Inc.
Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting Agreement”) to be entered into by and among Catalyst
Pharmaceutical Partners, Inc., a Delaware corporation (the “Company”), and you, as representatives
of the several Underwriters named therein, with respect to the public offering (the “Offering”) of
common stock, par value $0.001 per share, of the Company (the “Common Stock”).
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
during the period (the “Lock-Up Period”) that begins on the date hereof and ends as of the close of
business, New York time, on the 181st day after the date of the final prospectus relating to the
Offering, the undersigned will not, directly or indirectly, without the prior written consent of
First Albany Capital Inc., (i) sell, offer to sell, contract to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, or file or participate in
the filing of a registration statement with the Securities and Exchange Commission (the
“Commission”) with respect to, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder with
respect to, any Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or any warrants or other rights to purchase Common Stock or any such security, except
for the exercise of any stock option by the undersigned, (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or any warrants or other rights to purchase Common Stock or any such security,
whether any such transaction is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise, or (iii) publicly announce an intention to effect any transaction specified
in clause (i) or (ii). The foregoing sentence shall not
A-1
apply to (a) the registration of, or sale to the Underwriters of, any Common Stock pursuant to
the Offering and the Underwriting Agreement, (b) bona fide gifts, provided the recipient or
recipients thereof agree in writing to be bound by the terms of this Lock-Up Letter Agreement or
(c) dispositions to any trust for the direct or indirect benefit of the undersigned and/or the
immediate family of the undersigned, provided that such trust agrees in writing to be bound by the
terms of this Lock-Up Letter Agreement. For purposes of this paragraph, “immediate family” shall
mean the undersigned and the spouse, any lineal descendant, father, mother, brother or sister of
the undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of a registration statement relating to
the Offering. The undersigned further agrees that, during the Lock-Up Period, the undersigned will
not, directly or indirectly, without the prior written consent of First Albany Capital Inc., make
any demand for, or exercise any right with respect to, the registration of Common Stock of the
Company or any securities convertible into or exercisable or exchangeable for Common Stock.
In addition, if (i) during the period that begins on the date that is 15 calendar days plus 3
business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up
Period, the Company issues an earnings release or significant news or a significant event relating
to the Company occurs; or (ii) prior to the expiration of the Lock-Up Period, the Company announces
that it will release earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed by this Lock-Up Letter Agreement shall continue to
apply until the expiration of the date that is 15 calendar days plus 3 business days after the date
on which such significant news, such significant event or the issuance of such earnings release
occurs.
This Lock-Up Letter Agreement shall be terminated and the undersigned shall be released from
the undersigned’s obligations hereunder (i) upon the date the Company notifies you in writing that
it does not intend to proceed with the Offering, (ii) upon the date the registration statement
filed with the Securities and Exchange Commission with respect to the Offering is withdrawn or
(iii) upon the date the Underwriting Agreement is terminated, for any reason, prior to the “time of
purchase” (as defined in the Underwriting Agreement).
| Yours very truly, |
||||
| Name: | ||||
A-2
EXHIBIT B
OPINION OF AKERMAN SENTERFITT
1. The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of Delaware, with the requisite corporate power and authority to own,
lease and operate its properties and conduct its business as described in the Registration
Statement, the Disclosure Package or the Prospectus, to execute and deliver the Underwriting
Agreement and to issue, sell and deliver the Shares as contemplated by the Underwriting Agreement.
2. The Company and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which such qualification is necessary,
except where the failure to so qualify would not, individually or in the aggregate, have a Material
Adverse Effect.
3. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
4. The Shares have been duly authorized and, when issued and delivered to and paid for by the
Underwriters, will be validly issued, fully paid and non-assessable.
5. The Company has authorized and outstanding shares of capital stock as set forth in the
Registration Statement, the Disclosure Package or the Prospectus; the outstanding shares of capital
stock of the Company (A) have been duly authorized and validly issued and are fully paid and
non-assessable, (B) are free of preemptive, subscription or similar rights under the
B-1
Delaware General Corporation Law, including all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these laws (collectively, the “DGCL”)
or the charter or bylaws or other organizational documents of the Company or any contract,
commitment or instrument described in the Registration Statement or the Prospectus or filed as an
exhibit to the Registration Statement or otherwise known to us and (C) to our knowledge, were
issued in compliance with all applicable federal and state securities laws; the Shares, when
issued, will be free of preemptive, subscription or similar rights
under the DGCL or the charter
or bylaws or other organizational documents of the Company or any contract, commitment or
instrument described in the Registration Statement or the Prospectus or filed as an exhibit to the
Registration Statement or otherwise known to us; the holders of the Shares will not be subject to
personal liability by reason of being such holders; and the certificates for the Shares are in due
and proper form and conform to the requirements of the DGCL and the Nasdaq.
6. The capital stock of the Company, including the Shares, conforms in all material respects
to the description thereof contained in the Registration Statement, the Disclosure Package or the
Prospectus.
7. The Registration Statement, each Preliminary Prospectus and the Prospectus (except as to
the financial statements and schedules and the financial data derived therefrom, as to which we
express no opinion) comply as to form in all material respects with the requirements of the Act.
8. To our knowledge, the Company is not an “ineligible issuer” (as defined in Rule 405 under
the Act) as of the eligibility determination date for purposes of Rule 164 and Rule 433 under the
Act with respect to the offering of the Shares contemplated by the Registration Statement.
9. The Registration Statement has become effective under the Act, and to our knowledge no
stop order with respect to the effectiveness thereof has been issued and no stop order proceedings
with respect thereto are pending or threatened under the Act; and any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424 under the Act has been made in the
manner and within the time period required by such Rule 424 and in the manner and within the time
period required by Rule 430A under the Act.
10. No approval, authorization, consent or order of or filing with any federal or state
governmental commission, board, body, authority or agency, or under any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority (including, but not
limited to, the Nasdaq), or of or with the stockholders of the Company, is required in connection
with the execution and delivery of the Underwriting Agreement and the issuance, sale
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and delivery of the Shares and consummation of the other transactions contemplated by the
Underwriting Agreement other than those that have been obtained under the Act and the rules of the
Nasdaq and other than any necessary qualification under the state securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the Underwriters or any
necessary approval of the Corporate Financing Department of the NASD, as to which qualification and
approval we express no opinion.
11. The execution and delivery by the Company of the Underwriting Agreement and the
performance by the Company of its obligations hereunder, including the consummation of the
transactions contemplated by the Underwriting Agreement and by the Registration Statement and the
Prospectus, do not constitute, and will not result in, a breach or violation of, or a default under
(nor an event which, with notice, lapse of time or both would result in a breach or violation of,
or constitute a default under or give the holder of any indebtedness the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under), nor result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to (A) any provision of the charter or bylaws or other organizational documents of
the Company, (B) any provision of any license, permit, franchise or
authorization issued to the Company, or of any indenture, mortgage, deed
of trust, note, bank loan or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company is a
party or by which it may be bound or affected, or to which any of the property
or assets of the Company is subject or may be bound or affected, in each
case that is described in the Registration Statement or the Prospectus or filed as an exhibit to
the Registration Statement or otherwise known to us, (C) any federal or state law, regulation or
rule or any rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, but not limited to, the Nasdaq) or (D) any decree, judgment or
order known by us to be applicable to the Company.
12. To
our knowledge, the Company is not in breach or
violation of, or in default under (nor has any event occurred which with notice, lapse of time or
both would result in any breach or violation of, or constitute a default under, or give the holder
of any indebtedness the right to require the repurchase, redemption or repayment of all or a part
of such indebtedness under) (i) its charter, bylaws or other
organizational documents; (ii) any
provision of any license, permit, franchise or authorization issued to the Company, or
of any indenture, mortgage, deed of trust, note, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other agreement or instrument to which
the Company is a party or by which it may be bound or affected,
or to which any of the property or assets of the Company is
subject or may be bound or affected, in each case that is described
in the Registration Statement or the Prospectus or filed as an
exhibit to the Registration Statement or otherwise know to us; (iii) any federal or state law, regulation or rule or any rule
or regulation of any self-regulatory organization or other non-governmental regulatory authority
(including, but not limited to, the Nasdaq; or (iv) any decree, judgment or order applicable to
the Company, or any of its properties.
13. To our knowledge, there are no contracts, licenses, agreements, leases, documents or
affiliate transactions of a character which are required to be described in the
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Registration Statement, any Preliminary Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so described or filed as required.
14. To our knowledge, there are no actions, suits, claims, investigations or proceedings
pending or threatened to which the Company or any of the Subsidiaries is subject or of which any of
their respective properties is subject, whether at law or in equity or before or by any federal,
state, local or foreign governmental or regulatory commission, court, board, body, authority or
agency, which are required to be described in the Registration Statement or the Prospectus but are
not so described as required.
15. The
Company is not and, after giving effect to the offer and sale
of the Shares, will not be an “investment company” or an entity “controlled” by an
“investment company,” as such terms are defined in the Investment Company Act.
16. Those statements in the Registration Statement, the Preliminary Prospectus or the
Prospectus that are descriptions of contracts, agreements or other legal documents or of legal
proceedings, or refer to statements of law or legal conclusions, are accurate and complete in all
material respects and present fairly the information purported to be shown.
17. No person has the right, pursuant to the terms of any contract, agreement or other
instrument described in the Registration Statement or the Prospectus or filed as an exhibit to the
Registration Statement, or otherwise known to us, to have any securities issued by the Company
registered pursuant to the Act, included in the Registration Statement or sold in the offering
contemplated thereby.
We have participated in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement, the Disclosure Package and the
Prospectus were discussed and, although we are not passing upon and do not assume responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Disclosure Package or the Prospectus (except as and to the extent stated in
subparagraphs 5, 6, and 16 above), on the basis of the foregoing, nothing has come to our attention
that causes us to believe that (i) the Registration Statement, at the Effective Time, contained an
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its
date, or as of the date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or (iii) the Disclosure
Package, as of the time of the determination of the price of the Shares or the date hereof,
included or includes an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that we express no opinion with respect
to the financial statements and schedules, and other financial, or
statistical data derived therefrom, included in
the Registration Statement, the Disclosure Package or the Prospectus.
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EXHIBIT C
OPINION OF XXXXXXX & XXXXX
1. Based on information provided by Brookhaven Science Associates (“BSA”) and to our
knowledge, BSA is listed in the records of the appropriate patent offices as the owner of the
Patents.
2. Based on information provided by BSA and to our knowledge, BSA has complied with the United
States Patent and Trademark Office’s duty of candor and good faith as set forth in 37 C.F.R.
Section 1.56 for all of the Patents.
3. We have no knowledge of any facts that form a basis for finding of unenforceability or
invalidity of any of the patent rights owned by BSA, and we are unaware of any facts that would
preclude the grant of a patent from each of the patent applications set forth in Exhibit A hereto.
4. Based on information provided by BSA and to our knowledge, there is no infringement by any
third party of any of the Patents of BSA.
5. Other than those rights retained by the U.S. Government and its sublicensees, to our
knowledge, there is no pending or threatened action, suit, proceeding or legal claim by others
challenging the Company’s or its licensor’s right in and/or to any rights in the Patents and we are
unaware of any facts that would form a reasonable basis for such claim.
6. Based on information provided by BSA and to our knowledge, there is no pending or
threatened action, suit, proceeding or legal claim by others challenging the validity or scope of
any Intellectual Property, and we are unaware of any facts that would form a reasonable basis for
any such claim.
7. Based on information provided by BSA and to our knowledge, there is no pending or
threatened action, suit, proceeding or legal claim by others that the technology covered by the
Patents infringe any patent. We advise that as to “method of treatment” or “method of use” claims,
a license may be required from the owner of any patent for an action substance(s) used in such
method(s).
8. To our knowledge, including our comments set forth in Exhibit C hereto, we know of no prior
are that would render subject matter claimed in the Patents unpatentable.
9. Based on information provided by BSA and to our knowledge, there are no inventorship
challenges, any interference which has been declared or provoked, or any other material fact with
respect to the Patents that would either (A) preclude the issuance of patents with respect to
pending applications; (B) lead us to conclude that patents issuing from such patent applications
would not be valid and enforceable; or (C) subject to rights retained by the U.S. Government and
its sublicensees, result in a third party having any rights in any patents issuing from such patent
applications.
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10. The statements included in the Registration Statement, the Preliminary Prospectus or the
Prospectus referencing Intellectual Property matters, insofar as such statements constitute
summaries of legal matters, contracts, agreements, documents or proceedings referred to therein, or
refer to statements of law or legal conclusions, are in all material respects accurate and complete
statements or summaries of the matters therein set forth and present fairly the information therein
set forth.
11. Nothing has come to our attention that causes us to believe that such above-described
portions of the Registration Statement, at the time such Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or that such above
described portions of the Disclosure Package and Prospectus, at the time of the determination of
the price of the Shares and on the date hereof contained or contains an untrue statement of
material fact or omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
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EXHIBIT D
OPINION OF XXXXX, XXXXXX & XXXXXXXX, PC
1. Insofar as the statements in the Registration Statement, the Disclosure Package or the
Prospectus relating to FDA regulatory matters (the “Designated Regulatory Provisions”) purport to
describe or summarize applicable provisions of the FDA Laws, at the time the Registration Statement
became effective, as of the date of the date of the Prospectus, and on the date hereof, such
statements were and are accurate in all material respects, subject to any qualifications set forth
therein; and
2. Nothing has come to our attention which causes us to believe that the Designated Regulatory
Provisions, at the time the Registration Statement became effective and at all times subsequent
thereto up to and on the Closing Date, 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.
D-1
EXHIBIT E
OFFICERS’ CERTIFICATE
Each of the undersigned, Xxxxxxx X. XxXxxxx, Chief Executive Officer of Catalyst
Pharmaceutical Partners, Inc., a [Delaware] corporation (the “Company”), and Xxxx Xxxxxxxxx, Chief
Financial Officer of the Company, on behalf of the Company, does hereby certify pursuant to Section
5(j) of that certain Underwriting Agreement dated [trade date] (the “Underwriting Agreement”)
between the Company and, on behalf of the several Underwriters named therein (the “Underwriters”),
First Albany Capital Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated [other co-managers], that as of
[closing date]:
1. He has reviewed the Registration Statement, the Disclosure Package and the Prospectus and
each Permitted Free Writing Prospectus.
2. The representations and warranties of the Company as set forth in the Underwriting
Agreement are true and correct as of the date hereof and as if made on the date hereof.
3. The Company has performed and complied with all of its obligations and agreements and
satisfied all conditions on its part to be performed, complied with or satisfied under the
Underwriting Agreement at or prior to the date hereof.
4. No stop order suspending the effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose have been instituted or are contemplated by the Commission.
5. The Registration Statement and all amendments thereto do not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectus and all amendments or supplements thereto
do not contain an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they are made, not
misleading.
6. [Any required 462(b) Registration Statement, satisfying the requirements of subparagraphs
(1) and (3) of Rule 462(b) under the Act, was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time
the Prospectus was printed and distributed to any Underwriter.]
7. The financial statements and other financial information included in the Registration
Statement or the Prospectus fairly present the financial condition, results of operations and cash
flows of the Company and the Subsidiaries as of, and for, the periods therein presented.
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
E-1
In Witness Whereof, the undersigned have hereunto set their hands on this [closing
date].
| Name: | Xxxxxxx X. XxXxxxx | |||
| Title: | Chief Executive Officer | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
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