Exhibit 1.01
3,750,000 SHARES
ACUSPHERE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
October __, 2003
XX Xxxxx Securities Corporation
Xxxxxx Xxxxxx Partners LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
As Representatives of the several Underwriters
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Acusphere, Inc., a Delaware corporation (the "Company"),
proposes to sell, pursuant to the terms of this Agreement, to the several
underwriters named in Schedule A hereto (the "Underwriters," or, each an
"Underwriter"), an aggregate of 3,750,000 shares (the "Firm Stock") of common
stock, $0.01 par value (the "Common Stock"), of the Company. The Company also
proposes to sell to the Underwriters, upon the terms and conditions set forth in
Section 4 hereof, up to an additional 562,500 shares of Common Stock (the
"Optional Stock"). The Firm Stock and the Optional Stock are hereinafter
collectively referred to as the "Stock." XX Xxxxx Securities Corporation ("XX
Xxxxx"), Xxxxxx Xxxxxx Partners LLC, U.S. Bancorp Xxxxx Xxxxxxx Inc. and
Friedman, Billings, Xxxxxx & Co., Inc. are acting as representatives of the
several Underwriters and in such capacity are hereinafter referred to as the
"Representatives."
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-106725) (the
"Initial Registration Statement") in respect of the Stock has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the Commission
thereunder, which became or will become effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore
been filed with the Commission, other than the request of the Company for
confidential treatment of certain terms of certain agreements filed as
exhibits to the Initial Registration Statement (copies of which request,
together with all related correspondence with the Commission, have been
previously provided to XX Xxxxx on behalf of the Underwriters); and no
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, and to the
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Company's knowledge no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the Rules and Regulations, is hereinafter called a
"Preliminary Prospectus"); the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and including the information contained in the form
of final prospectus filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations and deemed by virtue of Rule 430A of the Rules
and Regulations to be part of the Initial Registration Statement at the
time it was declared effective, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statements"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) of the Rules and Regulations, is hereinafter called the
"Prospectus." No document has been or will be prepared or distributed in
reliance on Rule 434 of the Rules and Regulations. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the
Commission.
(b) The Initial Registration Statement, the Rule 462(b) Registration
Statement, if any, the Prospectus and any amendments or supplements to
either of the Registration Statements or the Prospectus, when they became
or become effective or were or are filed with the Commission conform or
will confirm, as the case may be, in all material respects to the
requirements of the Securities Act and the Rules and Regulations and do
not and will not, as of the applicable effective date (as to the
Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto), contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that the
foregoing representations and warranties shall not apply to information
contained in or omitted from the Registration Statements, the Prospectus
or any such amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information the parties hereto agree is limited
to the Underwriters' Information (as defined in Section 16).
(c) The Company owns or controls, directly or indirectly, only the
corporations, associations or other entities listed in Exhibit 21 to Item
16a of the Initial Registration Statement (the "Subsidiaries"). The
Company and each of the Subsidiaries have been duly incorporated and are
validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification,
and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except
where the failure to so qualify or have such power or authority would not
have, singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and the Subsidiaries taken as a whole (a
"Material Adverse Effect").
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) The Stock has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and nonassessable and free of any preemptive or
similar rights that have not been duly waived and will conform in all
material respects to the description thereof contained in the Prospectus.
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(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable, and conform in all material respects to the description
thereof contained in the Prospectus.
(g) All the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable, and are owned by the Company directly or indirectly
through one or more wholly owned subsidiaries, free and clear of any
claim, lien, encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party, other than the security
interest held by the holders of the Company's 10% convertible promissory
notes described in the Prospectus, which security interest will be
extinguished upon the closing of the sale of the Firm Stock to the
Underwriters.
(h) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Subsidiaries is subject,
(ii) result in any violation of the provisions of the charter or by-laws
of the Company or any of the Subsidiaries, or (iii) result in any
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
the Subsidiaries or any of their properties or assets, except where any
such breach, violation or default described in clause (i) or (iii) would
not have, singularly or in the aggregate, a Material Adverse Effect.
(i) Except for the registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), applicable state securities laws, and rules and
regulations of the National Association of Securities Dealers, Inc. (the
"NASD") in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby.
(j) To the best of the Company's knowledge and belief, Deloitte & Touche
LLP, who have expressed their opinions on certain of the audited financial
statements included in the Registration Statements and the Prospectus, are
independent public accountants with respect to the Company as required by
the Securities Act and the applicable Rules and Regulations. To the best
of the Company's knowledge and belief, Xxxxxx Xxxxxxxx LLP, who previously
expressed their opinions on certain of the audited financial statements
included in the Registration Statements and the Prospectus (but have not
consented to inclusion of such opinions in the registration statements),
at all times at which they served as public accountants, were independent
public accountants with respect to the Company within the meaning of the
Securities Act and the applicable Rules and Regulations.
(k) The financial statements, together with the related notes, included in
the Prospectus and in each Registration Statement fairly present the
financial position and the results of operations and changes in financial
position of the Company and the Subsidiaries and of Acusphere Newco Ltd.
at the respective dates or for the respective periods therein specified.
Such statements and related notes have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
except as may be set forth in the Prospectus; provided, however, that
those financial
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statements that are unaudited are subject to year-end adjustments and do
not contain all footnotes required under generally accepted accounting
principles. The financial statements, together with the related notes and
schedules, included in the Prospectus comply in all material respects with
the Securities Act and the Rules and Regulations thereunder. No other
financial statements or supporting schedules or exhibits are required by
the Securities Act or the Rules and Regulations thereunder to be included
in the Prospectus.
(l) Since December 31, 2002, neither the Company nor any of the
Subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus; and, since such date, there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company or any of the Subsidiaries or any material adverse change in the
business, general affairs, management, financial position, stockholders'
equity, results of operations or prospects of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus.
(m) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of the
Subsidiaries is a party or of which any property or assets of the Company
or any of the Subsidiaries is the subject that, singularly or in the
aggregate, if determined adversely to the Company or any of the
Subsidiaries, might reasonably be expected to have a Material Adverse
Effect or would prevent or adversely affect the ability of the Company to
perform its obligations under this Agreement; and to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(n) Neither the Company nor any of the Subsidiaries (i) is in violation of
its charter or by-laws, (ii) is in default in any respect, and no event
has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or
(iii) is in violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may
be subject, except, with respect to clauses (ii) and (iii), any violations
or defaults that, singularly or in the aggregate, would not have a
Material Adverse Effect.
(o) The Company and each of the Subsidiaries possess and have performed
their respective obligations with respect to all licenses, certificates,
authorizations and permits issued by, and have made all filings with, the
appropriate state, federal or foreign regulatory agencies or bodies that
are necessary for the conduct of their respective businesses as described
in the Prospectus, including all such licenses, certificates,
authorizations and permits required by the United States Food and Drug
Administration (the "FDA") or any other federal, state or foreign agencies
or bodies engaged in the regulation of pharmaceuticals, except where any
failures to possess or make the same, singularly or in the aggregate,
would not have a Material Adverse Effect; and the Company has not received
notification of any proceeding relating to revocation or modification of
any such license, certificate, authorization or permit and has no reason
to believe that any such license, certificate, authorization or permit
will not be renewed. The studies, tests and preclinical trials, if any,
conducted by or on behalf of the Company that are described in the
Registration Statements and the Prospectus were and, if still pending, are
being, conducted in all material respects in accordance with experimental
protocols, procedures and controls pursuant to, where applicable, accepted
professional scientific standards; the descriptions of the results of such
studies, tests and trials contained in the Registration Statements and the
Prospectus are accurate in all material respects; and the Company has not
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received any notices or correspondence from the FDA or any foreign, state
or local governmental body exercising comparable authority requiring the
termination, suspension or material modification of any studies, tests or
preclinical or clinical trials conducted by or on behalf of the Company
that termination, suspension or material modification could reasonably be
expected to have a Material Adverse Effect.
(p) Neither the Company nor any of the Subsidiaries is or, after giving
effect to the offering of the Stock and the application of the proceeds
thereof as described in the Prospectus, will become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder.
(q) Neither the Company nor any of its officers, directors or affiliates
has taken or will take, directly or indirectly, any action designed or
intended to stabilize or manipulate the price of any security of the
Company, or that caused or resulted in, or that might in the future
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
(r) The information contained in the Registration Statements and the
Prospectus concerning the issued patents and pending patent applications,
owned by or licensed to the Company and the Subsidiaries is accurate in
all material respects. The Company and the Subsidiaries own or possess
rights from all necessary third parties (the "Licensors") to use any
patents, trademarks, trade names, service marks, service names,
copyrights, confidential and proprietary information, including trade
secrets, know-how, inventions and technology, whether patented or not,
proprietary computer software and other intellectual property rights
(collectively, the "Intellectual Property") necessary to conduct the
respective businesses of the Company and the Subsidiaries in the manner in
which they have been and are contemplated to be conducted, as described in
the Prospectus, and without any conflict with the rights of others, except
as described in the Prospectus and except for such conflicts that, if
determined adversely to the Company or the Subsidiaries, would not have,
singly or in the aggregate, a Material Adverse Effect. Neither the Company
nor any of the Subsidiaries has knowledge that, or has received any notice
from any other person alleging that, the businesses of the Company and the
Subsidiaries in the manner in which they have been and are contemplated to
be conducted, as described in the Prospectus, conflict with the
Intellectual Property rights of others, except for such conflicts that, if
determined adversely to the Company or the Subsidiaries, would not have,
singly or in the aggregate, a Material Adverse Effect.
(s) All patent applications owned by or licensed to the Company or any of
the Subsidiaries that are material to the conduct of the respective
businesses of the Company and the Subsidiaries in the manner in which they
have been and are contemplated to be conducted have been duly and properly
filed or caused to be filed with the United States Patent and Trademark
Office ("PTO") and, in some cases, applicable foreign and international
patent authorities, and assignments for all patents and patent
applications owned by or licensed to the Company or any of the
Subsidiaries that are material to the conduct of the respective businesses
of the Company and the Subsidiaries in the manner in which they have been
and are contemplated to be conducted (collectively, the "Patent Rights")
have been properly executed and recorded for each named inventor. To the
knowledge of the Company, all printed publications and patent references
material to the patentability of the inventions claimed in the Patent
Rights have been disclosed to those patent offices so requiring. To the
knowledge of the Company, each of the Company, the Subsidiaries, their
assignors or the Licensors, as applicable, has met its duty of candor and
good faith to the PTO for the Patent Rights. To the knowledge of the
Company, no material misrepresentation has been made to any patent office
in connection with the Patent Rights. Neither the Company nor any of the
Subsidiaries is aware of any facts material to a determination of
patentability regarding the Patent Rights not disclosed to the PTO or
other applicable patent office. Neither the Company nor any of the
Subsidiaries is aware of any facts not disclosed to the PTO or other
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applicable patent office that would preclude the patentability, validity
or enforceability of any patent or patent application in the Patent
Rights. The Company has no knowledge of any facts that would preclude the
Company, the Subsidiaries or the Licensors, as applicable, from having
clear title to the patents and patent applications in the Patent Rights.
To the knowledge of the Company, the patents in the Patent Rights are
valid and enforceable, and have not been adjudged invalid or unenforceable
in whole or in part.
(t) To the knowledge of the Company, no third party is engaging in any
activity that infringes, misappropriates or otherwise violates the
Intellectual Property owned by or licensed to the Company or the
Subsidiaries, except as described in the Prospectus and except for such
activities that, singly or in the aggregate, would not have a Material
Adverse Effect.
(u) With respect to each material agreement governing all rights in and to
any Intellectual Property licensed by or licensed to the Company or any of
the Subsidiaries: (i) such agreement is valid and binding and in full
force and effect; (ii) neither the Company nor any of the Subsidiaries has
received any notice of termination or cancellation under such agreement,
received any notice of breach or default under such agreement, which
breach has not been cured, or granted to any third party any rights,
adverse or otherwise, under such agreement that would constitute a
material breach of such agreement; and (iii) none of the Company, the
Subsidiaries or, to knowledge the knowledge of the Company, any other
party to such agreement, is in breach or default thereof in any material
respect, and no event has occurred that, with notice or lapse of time,
would constitute such a material breach or default or permit termination,
modification or acceleration under such agreement.
(v) The Company and each of the Subsidiaries have valid title to, or have
valid rights to lease or otherwise use, all items of real or personal
property that are material to the business of the Company and the
Subsidiaries taken as a whole, in each case free and clear of all liens,
encumbrances, claims and defects that might reasonably be expected to
result in a Material Adverse Effect.
(w) No labor disturbance by the employees of the Company or any of the
Subsidiaries exists or, to the best of the Company's knowledge, is
imminent that might reasonably be expected to have a Material Adverse
Effect. The Company has not been notified by any executive officer of the
Company that she or he plans to terminate employment with the Company or
such Subsidiary.
(x) No "prohibited transaction" (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan that might reasonably be expected to have a
Material Adverse Effect; each employee benefit plan of the Company or any
of the Subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code; neither the Company nor any
of the Subsidiaries has incurred or expects to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from, any
"pension plan"; and each "pension plan" (as defined in ERISA) for which
the Company or any of the Subsidiaries would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by
failure to act, that might reasonably be expected to cause the loss of
such qualification.
(y) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due
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to, or caused by the Company or any of the Subsidiaries (or, to the best
of the Company's knowledge, any other entity for whose acts or omissions
the Company or any of the Subsidiaries is or may be liable) upon any of
the property now or previously owned or leased by the Company or any of
the Subsidiaries, or upon any other property, in violation of any statute
or any ordinance, rule, regulation, order, judgment, decree or permit or
which would, under any statute or any ordinance, rule (including rule of
common law), regulation, order, judgment, decree or permit, give rise to
any liability, except for any violation or liability which would not have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; there has been no disposal, discharge, emission
or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Company or any of the Subsidiaries
have knowledge, except for any such disposals, discharges, emissions or
other releases of any kind that would not have, singularly or in the
aggregate, a Material Adverse Effect.
(z) The Company and the Subsidiaries each (i) have filed all necessary
federal, state, local and foreign income and franchise tax returns, except
where failure to so file would not have a Material Adverse Effect, (ii)
have paid all federal state, local and foreign taxes due and payable for
which they are liable, except to the extent that such taxes are being
contested in good faith and by appropriate proceedings, and (iii) do not
have any tax deficiency or claims outstanding or assessed or, to the best
of the Company's knowledge, proposed against them that might reasonably be
expected to have a Material Adverse Effect.
(aa) The Company and each of the Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses
in similar industries, except for Directors and Officers Liability
Insurance which the Company is seeking to have in place by the First
Closing Date (as defined below).
(bb) Each of the Company and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity in
all material respects with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) The minute books of the Company and each of the Subsidiaries have
been made available to the Underwriters and counsel for the Underwriters,
and such books (i) contain a summary of all meetings and actions of the
board of directors (including each board committee) and stockholders of
the Company and the Subsidiaries since the time of its respective
incorporation through the date of the latest meeting and action, and (ii)
accurately in all material respects reflect all transactions referred to
in such minutes.
(dd) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be
described in the Prospectus or to be filed as an exhibit to the
Registration Statements that is not described or filed therein as
required; and all descriptions of any franchises, leases, contracts,
agreements or documents contained in the Registration Statements are
accurate and complete descriptions of such documents in all material
respects. Other than as described in the Prospectus, no such franchise,
lease, contract or agreement has been suspended or terminated for
convenience or default by the Company or any of the other parties thereto,
and the
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Company has not received notice or any other knowledge of any such pending
or threatened suspension or termination, except for such pending or
threatened suspensions or terminations that would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse
Effect.
(ee) No relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries, on the one hand, and any director,
officer, stockholder, customer or supplier of the Company or any of the
Subsidiaries, on the other hand, that is required to be described in the
Prospectus and that is not so described.
(ff) No person or entity has the right to require registration of shares
of Common Stock or other securities of the Company concurrent with or as a
result of the offering of the Stock, except as disclosed in the Prospectus
and except for persons and entities that have expressly waived such rights
or that have been given timely and proper notice and have failed to
exercise such right within the time or times required under the terms and
conditions of such rights.
(gg) Neither the Company nor any of the Subsidiaries owns any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System, and none of the proceeds of the
sale of the Stock will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin security, for the purpose of reducing or
retiring any indebtedness that was originally incurred to purchase or
carry any margin security or for any other purpose which might cause any
of the Securities to be considered a "purpose credit" within the meanings
of Regulation T, U or X of such Board.
(hh) Neither the Company nor any of the Subsidiaries is a party to any
contract, agreement or understanding (other than this Agreement) with any
person or entity that would give rise to a valid claim against the
Company, any of the Subsidiaries or the Underwriters for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Stock.
(ii) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(jj) The Stock has been approved for listing subject to notice of issuance
on the Nasdaq National Market System ("Nasdaq").
(kk) The Company has complied in all material respects with the currently
effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all
rules and regulations promulgated thereunder.
(ll) The Company has taken all necessary actions to ensure that, upon the
First Closing Date, it will be in compliance in all material respects with
all applicable corporate governance requirements set forth in the Nasdaq
Marketplace Rules that are then in effect.
(mm) Deloitte & Touche LLP is delivering to the Representatives,
contemporaneously with the execution and delivery of this Agreement, a
letter, addressed to the Underwriters and dated the date hereof, in form
and substance satisfactory to XX Xxxxx (i) confirming that they are
independent certified public accountants with respect to the Company and
the Subsidiaries within the meaning of the Securities Act and the Rules
and Regulations and (ii) stating the conclusions and findings of such firm
with respect to the financial statements and certain financial information
contained in the Prospectus.
(nn) The Company has delivered to the Representatives letter agreements of
all of the executive officers and directors and certain stockholders of
the Company, pursuant to which those persons
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have agreed to certain transfer restrictions with respect to their
holdings of securities of the Company.
3. Qualified Independent Underwriter.
(a) The Company hereby confirms its engagement of the services of XX Xxxxx
(the "Independent Underwriter") without compensation as, and the
Independent Underwriter hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the
meaning of Rule 2720(b)(15) of the NASD with respect to the offering and
sale of the Stock.
(b) The Independent Underwriter has participated in the preparation of the
Registration Statement and the Prospectus, has complied in all material
respects with all of the requirements of Rule 2720 applicable to it in
connection with the offering and sale of the Stock, and recommends, as of
the date of the execution and delivery of this Agreement, that the
Purchase Price (as defined below) for each share be not more than $______.
4. Purchase, Sale and Delivery of Offered Stock. 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 each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of shares of Firm Stock (rounded up or down, as
determined by XX Xxxxx in its discretion, in order to avoid fractions) obtained
by multiplying the total number of shares of Firm Stock by a fraction, the
numerator of which is the number of shares of Firm Stock set forth opposite the
name of such Underwriter in Schedule A hereto and the denominator of which is
the total number of shares of Firm Stock (subject to adjustment by XX Xxxxx to
eliminate fractions).
The purchase price to be paid by the Underwriters to the Company for the
Stock will be $_____ per share (the "Purchase Price").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the second full business day preceding the
First Closing Date), against payment of the aggregate Purchase Price therefor by
wire transfer to an account at a bank reasonably acceptable to XX Xxxxx, payable
to the order of the Company, all at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. The time and date of
the delivery and closing shall be at 10:00 A.M., New York time, on ______ ,
2003, in accordance with Rule 15c6-1 under the Exchange Act. The time and date
of such payment and delivery are herein referred to as the "First Closing Date."
The First Closing Date and the location of delivery of, and the form of payment
for, the Firm Stock may be varied by agreement between the Company and XX Xxxxx.
For purposes of this Agreement, "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading.
The Company shall make the certificates for the Firm Stock available to
the Representatives for examination on behalf of the Underwriters in New York,
New York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of shares of Optional
Stock specified in the written notice by XX Xxxxx described below and the
Underwriters agree, severally and not jointly, to
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purchase such shares of Optional Stock. Such shares of Optional Stock shall be
purchased from the Company for the account of each Underwriter in the same
proportion as the number of shares of Firm Stock set forth opposite such
Underwriters' name bears to the total number of shares of Firm Stock (subject to
adjustment by XX Xxxxx to eliminate fractions). The option granted hereby may be
exercised as to all or any part of the Optional Stock at any time, and from time
to time, not more than thirty days subsequent to the date of this Agreement. No
Optional Stock shall be sold and delivered unless the Firm Stock previously has
been, or simultaneously is, sold and delivered. The right to purchase the
Optional Stock or any portion thereof may be surrendered and terminated at any
time upon notice by XX Xxxxx to the Company.
The option granted hereby may be exercised by written notice being given
to the Company by XX Xxxxx setting forth the number of shares of the Optional
Stock to be purchased by the Underwriters and the date and time for delivery of
and payment for the Optional Stock. Each date and time for delivery of and
payment for the Optional Stock (which may be the First Closing Date, but not
earlier) is herein called an "Option Closing Date" and shall in no event be
earlier than two business days nor later than five business days after written
notice is given. The Option Closing Date and the First Closing Date are herein
called the "Closing Dates."
On each Option Closing Date, the Company will deliver Optional Stock to
the Underwriters (in the form of definitive certificates, issued in such names
and in such denominations as the Representatives may direct by notice in writing
to the Company given at or prior to 12:00 Noon, New York time, on the second
full business day preceding such Option Closing Date) against payment of the
aggregate Purchase Price therefor in federal (same-day) funds by certified or
official bank check or checks or wire transfer to an account at a bank
reasonably acceptable to XX Xxxxx payable to the order of the Company, all at
the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. The Company shall make the certificates for the
Optional Stock to be delivered on such Option Closing Date available to the
Representatives for examination on behalf of the Underwriters in New York, New
York, not later than 10:00 A.M., New York time, on the business day preceding
such Option Closing Date. Any Option Closing Date and the location of delivery
of, and the form of payment for, the Optional Stock may be varied by agreement
between the Company and XX Xxxxx.
The several Underwriters propose to offer the Firm Stock for sale upon the
terms and conditions set forth in the Prospectus.
5 Further Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and file the Rule
462(b) Registration Statement with the Commission on the date hereof;
prepare the Prospectus in a form approved by the Representatives and file
the Prospectus pursuant to Rule 424(b) of the Rules and Regulations not
later than the second business day following the execution and delivery of
this Agreement; make no further amendment or any supplement to either
Registration Statement or to the Prospectus to which the Representatives
shall reasonably object by notice to the Company after a reasonable period
(but in any event within 48 hours) to review, unless, after such period,
the Company and its counsel determine, in their reasonable judgment, such
amendment or supplement is required by law; advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to either Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Representatives with copies thereof; advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the
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Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of
the Registration Statements or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, use its best efforts
to obtain the withdrawal of such order promptly.
(b) If, at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Stock is required to be delivered, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representatives
thereof and upon their request will prepare an amended or supplemented
Prospectus that will correct such statement or omission or otherwise
effect such compliance. The Company will furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of such amended
or supplemented Prospectus; and in case any Underwriter is required to
deliver a prospectus relating to the Stock nine months or more after the
effective date of the Initial Registration Statement, the Company upon the
request of the Representatives and at the expense of such Underwriter will
prepare promptly an amended or supplemented Prospectus as may be necessary
to permit compliance with the requirements of Section 10(a)(3) of the
Securities Act.
(c) The Company has furnished, or will furnish promptly upon any filing
after the delivery of this Agreement, to each of the Representatives and
to counsel for the Underwriters a conformed copy of each of the
Registration Statements as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and
exhibits filed therewith.
(d) The Company will deliver promptly to the Representatives in New York,
New York such number of the following documents as the Representatives
shall reasonably request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits); (ii) each Preliminary
Prospectus; (iii) the Prospectus (not later than 10:00 A.M., New York
time, of the business day following the execution and delivery of this
Agreement) and (iv) any amended or supplemented Prospectus (not later than
10:00 A.M., New York time, on the business day following the date of such
amendment or supplement).
(e) The Company will make generally available to its stockholders as soon
as practicable, but in any event not later than 18 months after the
effective date of the Registration Statement (as defined in Rule 158(c) of
the Rules and Regulations), an earnings statement of the Company and the
Subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as the
Representatives may reasonably request to qualify the Stock for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Representatives may designate and to continue such qualifications in
effect for so long as required for the distribution of the Stock; provided
that the Company and the Subsidiaries shall not be obligated to qualify as
foreign corporations in any jurisdiction in which they are not so
qualified or to file general consents to service of process in any
jurisdictions.
12
(g) To the extent that any such reports, financial statements or other
communications are not available through the Commission's Electronic Data
Gathering and Retrieval System ("XXXXX") or any system succeeding or
replacing XXXXX, during the period of five years from the date hereof, the
Company will deliver to the Representatives and, upon request, to each of
the other Underwriters, (i) as soon as they are available, copies of all
reports or other communications furnished to stockholders and (ii) as soon
as they are available, copies of any reports and financial statements
furnished or filed with the Commission pursuant to the Exchange Act or any
national securities exchange or automatic quotation system on which the
Common Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock for a period of 180 days from the date of the Prospectus
without the prior written consent of XX Xxxxx, other than the sale of the
Stock hereunder and the issuance of shares of Common Stock pursuant to
employee benefit plans, qualified stock option plans, employee stock
purchase plans or other employee compensation plans existing on the date
hereof or pursuant to currently outstanding options, warrants, convertible
preferred stock or convertible indebtedness.
(i) The Company will supply the Representatives with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to each of the Closing Dates the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for any
periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business
and consistent with the past practices of the Company and of which the
Representatives are notified), without the prior written consent of the
Representatives, unless in the judgment of the Company and its counsel,
and after notification to the Representatives, such press release or
communication is required by law.
(l) In connection with the offering of the Stock, until XX Xxxxx shall
have notified the Company of the completion of the resale of the Stock,
the Company will not, and will cause its affiliated purchasers (as defined
in Regulation M under the Exchange Act) not to, either alone or with one
or more other persons, (i) bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any
Common Stock, (ii) attempt to induce any person to purchase any Common
Stock, or (iii) make bids for or purchase Common Stock for the purpose of
creating actual, or apparent, active trading in the Common Stock or of
raising the price of the Common Stock.
(m) The Company will apply the net proceeds from the sale of the Stock as
set forth in the Prospectus under the heading "Use of Proceeds."
6. Payment of Expenses. The Company agrees with the Underwriter to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Stock and any taxes payable in that connection; (b) the costs incident to
the registration of the Stock under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of each Registration Statement,
each Preliminary Prospectus, the Prospectus, and any amendments, supplements or
exhibits thereto; (d) the costs of
13
printing, reproducing and distributing the Agreement Among Underwriters, the
Master Selected Dealers' Agreement, the Underwriters' Questionnaire and this
Agreement by mail, telex or other means of communications; (e) the fees and
expenses (including related fees and expenses of counsel for the Underwriters)
reasonably incurred in connection with filings made with the NASD; (f) any
applicable listing or other fees; (g) the fees and expenses of qualifying the
Stock under the securities laws of the several jurisdictions as provided in
Section 5(f) hereof and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and expenses of
counsel to the Underwriters reasonably incurred in connection therewith); (h)
all fees and expenses of the registrar and transfer agent of the Common Stock;
and (i) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement (including the fees and expenses
of the Company's counsel and the Company's independent accountants); provided
that, except as otherwise provided in this Section 6 and in Section 10 hereof,
the Underwriters shall pay their own costs and expenses, including travel, meals
and lodging costs, the fees and expenses of their counsel, any transfer taxes on
the Stock that they sell and the expenses of any advertising made by the
Underwriters of the offering of the Stock.
7. Conditions of Underwriters' Obligations. The respective obligations of the
several Underwriters hereunder on any Closing Date are subject to the accuracy,
when made and on such Closing Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) No stop order suspending the effectiveness of either of the
Registration Statements shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the Commission, and any
request for additional information on the part of the Commission (to be
included in the Registration Statements or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Representatives. The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in accordance
with Section 5(a) hereof.
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to such Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact that, in the opinion of counsel for the
Underwriters, is material or omits to state any fact that, in the opinion
of such counsel, is material and is either required to be stated therein
or necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Stock, the
Registration Statement and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall have furnished to the
Representatives such counsel's written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Closing Date, in form and
substance reasonably satisfactory to the Representatives, concerning the
matters set forth on Exhibit A attached hereto.
(e) Holland & Knight LLP shall have furnished to the Representatives such
counsel's written opinion, as patent counsel to the Company, addressed to
the Underwriters and dated such Closing Date, in form and substance
reasonably satisfactory to the Representatives, concerning the matters set
forth on Exhibit B attached hereto.
14
(f) Greenberg, Taurig, LLP shall have furnished to the Representatives
such counsel's written opinion, as FDA regulatory counsel to the Company,
addressed to the Underwriters and dated such Closing Date, in form and
substance reasonably satisfactory to the Representatives, concerning the
matters set forth on Exhibit C attached hereto.
(g) Xxxx and Xxxx LLP shall have furnished to the Representatives such
counsel's written opinion as counsel for the Underwriters, addressed to
the Underwriters and dated such Closing Date, with respect to such matters
as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for enabling them
to pass upon such matters.
(h) Deloitte & Touche LLP shall have furnished to the Representatives a
letter (the "bring-down letter"), addressed to the Underwriters and dated
such Closing Date, confirming, as of such Closing Date (or, with respect
to matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as of
a date not more than three business days prior to such Closing Date), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter delivered to the
Representatives concurrently with the execution of this Agreement pursuant
to Section 2(mm) hereof.
(j) The Company shall have furnished to the Representatives a certificate,
dated such Closing Date, of its President and Chief Executive Officer and
its Senior Vice President and Chief Financial Officer stating that (i)
such officers have carefully examined the Registration Statements and the
Prospectus and, in their opinion, the Registration Statements as of their
respective effective dates and the Prospectus, as of its date and such
Closing Date, did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) since the
effective date of the Initial Registration Statement no event has occurred
that should have been set forth in a supplement or amendment to the
Registration Statements or the Prospectus, (iii) to the best of their
knowledge after reasonable investigation, as of such Closing Date, the
representations and warranties of the Company in this Agreement are true
and correct and the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date, and (iv) subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Company and the Subsidiaries, or any change, or any development including
a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company
and the Subsidiaries taken as a whole, except as set forth in the
Prospectus.
(k) Since the date of the latest audited financial statements included in
the Prospectus, (i) neither the Company nor any of the Subsidiaries shall
have sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus and
(ii) there shall not have been any change in the capital stock or
long-term debt of the Company or any of the Subsidiaries or any change, or
any development involving a prospective change, in or affecting the
business, general affairs, management, financial position, stockholders'
equity or results of operations of the Company and the Subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the
Stock on the terms and in the manner contemplated in the Prospectus.
15
(l) No action shall have been taken, and no statute, rule, regulation or
order shall have been enacted, adopted or issued, by any governmental
agency or body that would, as of such Closing Date, prevent the issuance
or sale of the Stock or materially and adversely affect the business,
operations or prospects of the Company; and no injunction, restraining
order or order of any other nature by any federal or state court of
competent jurisdiction shall have been issued as of such Closing Date that
would prevent the issuance or sale of the Stock or materially and
adversely affect the business, operations or prospects of the Company.
(m) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum or maximum prices or maximum ranges for prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States; (iii) the United States shall
have become engaged in hostilities or the subject of an act of terrorism,
there shall have been an escalation in hostilities involving the United
States, or there shall have been a declaration of a national emergency or
war by the United States; or (iv) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
sale or delivery of the Stock on the terms and in the manner contemplated
in the Prospectus.
(n) Nasdaq shall have approved the Stock for inclusion, subject only to
official notice of issuance and evidence of satisfactory distribution.
(o) The Company shall have furnished the transfer agent and registrar of
the Common Stock with written instructions, reasonably acceptable in form
and substance to XX Xxxxx and counsel for the Underwriters, to enforce the
terms of the agreements delivered pursuant to Section 2(nn) hereof.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, the
officers, employees, representatives and agents of each Underwriter, and
each person, if any, who controls any Underwriter within the meaning of
the Securities Act (collectively the "Underwriter Indemnified Parties" and
each an "Underwriter Indemnified Party") against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, either of the Registration Statements or the
Prospectus or in any amendment or supplement thereto, (ii) the omission or
alleged omission to state in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus or in any amendment or
supplement thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act
or failure to act, or any alleged act or failure to act, by any
Underwriter in connection with, or relating in any manner to, the Stock or
the offering contemplated hereby, and that is included as part of or
referred to in any loss, claim, damage,
16
liability or action arising out of or based upon matters covered by clause
(i) or (ii) above, (provided that the Company shall not be liable in the
case of any matter covered by this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly from any
such act or failure to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each Underwriter Indemnified Party promptly upon demand for any
legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to defend
or defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from the Preliminary
Prospectus, either of the Registration Statements or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for use therein, which
information the parties hereto agree is limited to the Underwriters'
Information; provided, further however, that the foregoing indemnification
agreement with respect to the Preliminary Prospectus shall not inure to
the benefit of any Underwriter from which the person asserting any such
loss, claim, damage or liability purchased Stock, or any officers,
employees, representatives, agents or controlling persons of such
Underwriter, if (i) a copy of the Prospectus (as then amended or
supplemented) was required by law to be delivered to such person at or
prior to the written confirmation of the sale of Stock to such person,
(ii) a copy of the Prospectus (as then amended or supplemented) was not
sent or given to such person by or on behalf of such Underwriter and such
failure was not due to non-compliance by the Company with Section 5(d)
hereof, and (iii) the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or
liability. This indemnity agreement is not exclusive and will be in
addition to any liability that the Company might otherwise have and shall
not limit any rights or remedies that may otherwise be available at law or
in equity to an Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, the directors, officers, employees, representatives
and agents of the Company, and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively the
"Company Indemnified Parties" and each a "Company Indemnified Party")
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company Indemnified Parties may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, either of the Registration
Statements or the Prospectus or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company through the Representatives by or on behalf of that
Underwriter specifically for use therein, and shall reimburse the Company
Indemnified Parties for any legal or other expenses reasonably incurred by
such parties in connection with investigating or preparing to defend or
defending against or appearing as a third-party witness in connection with
any such loss, claim, damage, liability or action as such expenses are
incurred; provided that the parties hereto hereby agree that such written
information provided by the Underwriters consists solely of the
Underwriters' Information. This indemnity agreement is not exclusive and
will be in addition to any liability that the Underwriters might otherwise
have and shall not limit any rights or remedies that may otherwise be
available at law or in equity to the Company Indemnified Parties.
17
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, provided further that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there may
be one or more legal defenses available to it that are different from or
additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has
failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by XX Xxxxx, if the
indemnified parties under this Section 8 include any Underwriter
Indemnified Party, or by the Company, if the indemnified parties under
this Section 8 consist solely of Company Indemnified Parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 8(a) and 8(b) hereof, shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. Subject to the provisions of Section 8(d) hereof, no indemnifying
party shall be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 8 effected without
its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the request for
reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 60 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such fees and expenses of such indemnified party in accordance
with such request prior to the date of such settlement.
18
(e) Without limitation and in addition to its obligations under the other
subsections of this Section 8, the Company agrees to indemnity and hold
harmless the Independent Underwriter and each person, if any, who controls
the Independent Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including any legal or other
expenses reasonably incurred in connection with defending or investigating
any such action or claim) arising out of or based upon the Independent
Underwriter's acting as a "qualified independent underwriter" (within the
meaning of NASD Conduct Rule 2720) in connection with the offering
contemplated by this Agreement, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage or liability; provided
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability results from the willful
misconduct, bad faith or gross negligence of the Independent Underwriter
or from the failure of the Independent Underwriter to observe in any
material respect the applicable rules and regulations of the NASD in
connection with its service to the Company as a "qualified independent
underwriter."
(f) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under Section 8(a)
or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Stock 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 the Underwriters on the
other with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits
received by the Company, the Underwriters and the Independent Underwriter
(in its capacity as "qualified independent underwriter" within the meaning
of NASD Conduct Rule 2720), with respect to such offering shall be deemed
to be in the same proportion as (A) the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting
expenses) received by the Company, (B) the total underwriting discounts
and commissions received by the Underwriters with respect to the Stock
purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus, and (C) the compensation, if any, paid
by the Company to the Independent Underwriter (in such capacity).
(g) For purposes of Section 8(f), the relative fault of the Company on the
one hand and the Underwriters on the other, with respect to such loss,
claim, damage or liability, or action in respect thereof, shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission;
provided that the parties hereto agree that the written information
furnished to the Company through the Representatives by or on behalf of
the Underwriters for use in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus consists solely of the
Underwriters' Information. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section
8(g) were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(g)
19
shall be deemed to include, for purposes of this Section 8(g), any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(g), (i) no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Stock underwritten by it and
distributed to the public were offered to the public less the amount of
any damages that such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission and (ii) the Independent Underwriter, in its capacity as
"qualified independent underwriter" (within the meaning of NASD Conduct
Rule 2710) shall not be required to contribute any amount in excess of the
compensation received by the Independent Underwriter for acting in such
capacity. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided
in this Section 8(g) are several in proportion to their respective
underwriting obligations and not joint.
9. Termination. The obligations of the Underwriters hereunder may be terminated
by XX Xxxxx, in its absolute discretion by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(k), 7(l) or 7(m) hereof have
occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) this Agreement shall have
been terminated pursuant to Section 9 or 11 hereof, (b) the Company shall fail
to tender Stock for delivery to the Underwriters for any reason permitted under
this Agreement or (c) the Underwriters shall decline to purchase Stock for any
reason permitted under this Agreement, the Company shall reimburse the
Underwriters for the fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been reasonably incurred by them in
connection with this Agreement and the proposed purchase of such Stock, and upon
demand the Company shall pay the full amount thereof to XX Xxxxx. If this
Agreement is terminated pursuant to Section 11 hereof by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
11. Substitution of Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent of the total number of
shares underwritten, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the shares
that such defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters shall so default and the aggregate number of
shares with respect to which such default or defaults occur is more than ten
percent of the total number of shares underwritten and arrangements satisfactory
to the Representatives and the Company for the purchase of such shares by other
persons are not made within 48 hours after such default, this Agreement shall
terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 11, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five full business days in order that the Company may effect whatever changes
may thereby be made necessary in the Registration Statements or the Prospectus,
or in any other documents or arrangements, and the Company agrees promptly to
file any amendments to the Registration Statements or supplements to the
Prospectus that may thereby be made necessary, and (ii) the respective numbers
of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their
20
underwriting obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of its liability to the
Company or the other Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 11 shall
be without liability on the part of any non-defaulting Underwriter or the
Company, except expenses to be paid or reimbursed pursuant to Sections 6 and 10
hereof and except the provisions of Section 8 hereof shall not terminate and
shall remain in effect.
12. Successors; Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties and the
Independent Underwriter, and the indemnities of the several Underwriters shall
also be for the benefit of the Company Indemnified Parties. It is understood
that the Underwriters' responsibility to the Company is solely contractual in
nature and the Underwriters do not owe the Company, or any other party, any
fiduciary duty as a result of this Agreement.
13. Survival of Indemnities, Representations, Warranties, etc. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Company or any person controlling any of them and shall
survive delivery of and payment for the Stock.
14. Notices. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Underwriters or the Independent Underwriter, shall be
delivered or sent by mail, telex or facsimile transmission to XX Xxxxx
Securities Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Head of Equity Capital Markets (fax: 000.000.0000), with
a copy to the Legal Department (fax: 000.000.0000); provided, however,
that any notice to an Underwriter pursuant to Section 8 hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto
by XX Xxxxx upon request; or
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to Acusphere, Inc., 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: President and Chief Executive Officer
(fax: 000.000.0000), with a copy to Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxxx X.
Xxxxxxxxxx, Esq. (fax: 000.000.0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Underwriters' Information. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last paragraph on
the front cover page; (ii) the statements concerning the Underwriters
21
contained in the third paragraph under the heading "Underwriting" (which
paragraph begins "The underwriters propose to offer the shares . . .") and (iii)
the statements concerning the Underwriters contained in the ninth paragraph, and
each of the paragraphs under the subheading "Xxxxxx Xxxxxx Partners LLC and the
Qualified Independent Underwriter," under the heading "Underwriting."
17. Authority of the Representatives. In connection with this Agreement, you
will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Representatives, will be binding on all the
Underwriters.
18. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. General. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The term "including" as used in
this Agreement shall not be construed so as to exclude any other thing not
referred to or described. The section headings in this Agreement are for the
convenience of the parties only and will not affect the construction or
interpretation of this Agreement. This Agreement may be amended or modified, and
the observance of any term of this Agreement may be waived, only by a writing
signed by the Company and the Representatives.
20. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of the agreement
between the Company and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
Acusphere, Inc.
By:
-------------------------------------
Name:
Title:
Accepted as of the date first above written:
XX Xxxxx Securities Corporation
Xxxxxx Xxxxxx Partners LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Acting on their own behalf and as Representatives
of the several Underwriters referred to in the
foregoing Agreement
By: XX Xxxxx Securities Corporation
22
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Head of Equity Capital Markets
XX Xxxxx Securities Corporation
Acting in its capacity as Independent Underwriter
By: XX Xxxxx Securities Corporation
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Head of Equity Capital Markets
SCHEDULE A
Number of
Shares of
Firm Stock to
Name be Purchased
---- ----------
XX Xxxxx Securities Corporation..............................
Xxxxxx Xxxxxx Partners LLC...................................
US Bancorp Xxxxx Xxxxxxx Inc.................................
Friedman, Billings, Xxxxxx & Co., Inc........................
---------
Total...................................... 3,750,000
=========
EXHIBIT A
FORM OF LEGAL OPINION OF COMPANY COUNSEL
[Closing Date]
XX Xxxxx Securities Corporation
Xxxxxx Xxxxxx Partners LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
As Representatives of the several Underwriters
c/o XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for Acusphere, Inc., a Delaware corporation (the
"Company"), in connection with the sale by the Company to you (collectively, the
"Underwriters"), pursuant to the Underwriting Agreement dated October __, 2003
(the "Underwriting Agreement") by and among you and the Company, of an aggregate
of 3,750,000 shares (the "Firm Stock") of the Company's common stock, par value
$.01 per share (the "Common Stock") and up to an aggregate of 562,500 shares of
Common Stock issuable pursuant to an over-allotment option granted to the
Underwriters (the "Optional Stock", and together with the Firm Stock, the
"Stock"). Capitalized terms used herein, unless otherwise defined herein, shall
have the respective meanings assigned to such terms in the Underwriting
Agreement.
This opinion is furnished to you pursuant to Section 7(d) of the
Underwriting Agreement.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, including:
(i) the Company's Registration Statement on Form S-1 (File No.
333-106725) relating to the Stock, filed with the Securities and Exchange
Commission (the "Commission") on July 1, 2003 under the Securities Act of
1933, as amended (the "Securities Act"), including information deemed to
be part of the registration statement at the time of effectiveness
pursuant to Rule 430A of the General Rules and Regulations promulgated
under the Securities Act (the "Rules and Regulations") (such registration
statement, as so amended, being hereinafter referred to as the
"Registration Statement");
(ii) the final prospectus relating to the Stock, dated October ___,
2003, in the form in which such prospectus was filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations (the "Prospectus");
(iii) executed copies of the Underwriting Agreement;
(iv) Certificates of the Secretary of State of the State of Delaware
and the Secretary of the Commonwealth of Massachusetts with respect to the
Company;
(v) Certificates of the Secretary of the Commonwealth of
Massachusetts with respect to Acusphere Securities Corporation;
(vi) the Amended and Restated Certificate of Incorporation of the
Company as filed on October ___, 2003 (the "Certificate of
Incorporation"), as certified by the Secretary of State of the State of
Delaware;
(vii) the by-laws of the Company (the "By-Laws"), as currently in
effect;
(viii) the minute books and stock records of the Company;
(ix) a Secretary's Certificate of the Company, dated the date
hereof;
(x) the officers' certificates, dated the date hereof; and
(xi) such other documents, records, and materials as we deemed
necessary for the purpose of rendering the opinions rendered herein.
For the purposes of this letter and the opinions set forth below, we have
assumed your compliance with all federal and state laws and regulations relating
to your authority to enter into the Underwriting Agreement and to effect the
transactions contemplated thereby. In making our examination of documents
executed by parties other than by the Company, we have assumed that such parties
had the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and the validity and binding effect thereof. In rendering the opinions set forth
in paragraph (i) below as to the valid existence and good standing of the
Company in the State of Delaware and the Commonwealth of Massachusetts, we have
assumed the completeness and accuracy of, and are relying solely upon,
certificates of legal existence and good standing issued by the Secretary of
State of the State of Delaware and the Secretary of the Commonwealth of
Massachusetts, respectively. In rendering the opinions set forth in paragraph
(i) below as to the valid existence and good standing of Acusphere Securities
Corporation in the Commonwealth of Massachusetts, we have assumed the
completeness and accuracy of, and are relying solely upon, certificates of legal
existence and good standing issued by the Secretary of the Commonwealth of
Massachusetts. In rendering this opinion, as to all matters of fact relevant to
this opinion, we have assumed the completeness and accuracy of, and are relying
solely upon, the representations, warranties and agreements of the Company set
forth in the Underwriting Agreement and upon the oral or written statements and
representations of officers and other representatives of the Company, public
officials and others without making any independent investigation or inquiry
with respect to the completeness or accuracy of such representations,
warranties, agreements or statements.
We have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to original
documents of documents submitted to us as certified or photostatic copies,
whether certified or not.
Any reference herein to "our knowledge," "known to us" or any variation
thereof shall be limited to attorneys in this firm who have rendered substantive
attention to this transaction and shall mean that in the course of our
representation of the Company, in connection with the preparation of the
Registration Statement and the Prospectus, we have not obtained actual knowledge
of the existence or absence of any facts that would contradict our opinions set
forth below. We have not searched any computer databases or the dockets of any
court, administrative body, agency or other filing office in any jurisdiction or
made any other independent investigation.
We have made such examination of the federal laws of the United States of
America as we have deemed relevant for purposes of this opinion. We are members
of the bar of the Commonwealth of Massachusetts and do not hold ourselves out as
experts in, and express no opinion as to, the laws of any other state or
jurisdiction other than the laws of the Commonwealth of Massachusetts and the
federal laws of the United States of America and, to the extent necessary for
this opinion, the General Corporation Law of the State of Delaware.
Based on and subject to the foregoing, we are of the opinion that:
(i) The Company and Acusphere Securities Corporation are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation. The Company is duly qualified
to do business and is in good standing as a foreign corporation in the
Commonwealth of Massachusetts.
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable, and conform in all material respects to the
description thereof contained in the Prospectus.
(iii) All the outstanding shares of capital stock of Acusphere
Securities Corporation have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company directly, free
and clear of any claim, lien or encumbrance, other than the security
interest granted by the Company in connection with the issuance of the 10%
convertible promissory notes described in the Prospectus, which security
interest will be terminated upon conversion of such promissory notes
immediately prior to the consummation by the Company of the sale of the
Firm Stock on the Closing Date.
(iv) The Stock has been duly authorized and, when issued and
delivered in accordance with the terms of the Underwriting Agreement, will
be validly issued, fully paid and non-assessable.
(v) There are no preemptive or other rights to subscribe for or to
purchase, any shares of the Stock pursuant to the Company's charter or
by-laws or any agreement or other instrument known to us, except for such
rights and/or restrictions that have been duly waived.
(vi) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated thereby
(other than the performance by the Company of its indemnification
obligations thereunder, as to which we render no opinion) will not (a) to
our knowledge, constitute a material breach of any of the terms or
provisions of, or constitute a material default under, any agreement or
instrument to which the Company or Acusphere Securities Corporation is a
party that is an exhibit to the Registration Statement, (b) result in any
violation of the charter or by-laws of the Company or (c) to our
knowledge, result in any material violation of any judgment, order or
decree of any court or governmental agency or body having jurisdiction
over the Company or Acusphere Securities Corporation or any of their
properties or assets, except for those defaults, violations or failures
which, individually or in the aggregate, would not have a Material Adverse
Effect.
(viii) Except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, applicable state
securities laws (as to which we render no opinion), and rules and
regulations of the
NASD in connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Underwriting
Agreement by the Company and the consummation of the transactions
contemplated thereby.
(ix) The statements (A) in the Prospectus under the headings "Risk
Factors -- Provisions of Delaware law or our charter documents could delay
or prevent an acquisition of us, even if the acquisition would be
beneficial to our stockholders, and could make it more difficult for you
to change management," "Management -- Employee Benefit Plans," "Management
-- Limitation of Liability and Indemnification of Officers and Directors,"
"Description of Capital Stock," "Shares Eligible for Future Sale" and
"Material United States Federal Income Tax Considerations for Non-U.S.
Holders of Our Common Stock" and (B) in the Registration Statement in
Items 14 and 15, to the extent that such statements constitute summaries
of matters of law or regulation or legal conclusions, fairly summarize the
matters described therein in all material respects.
(x) To our knowledge, there are no contracts or other documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(xi) To our knowledge and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or Acusphere Securities Corporation is a party or of which any
property or asset of the Company or Acusphere Securities Corporation is
the subject that are required to be described.
(xii) The Registration Statement, the Prospectus, and each amendment
or supplement to the Registration Statement and the Prospectus, as of
their respective effective or issue dates (other than the financial
statements and other financial data contained therein, as to which we
express no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations.
(xiii) To our knowledge, except as disclosed in the Registration
Statement, there are no contracts, agreements or understandings between
the Company and any person or entity granting such person or entity the
right to require registration of shares of Common Stock or other
securities of the Company because of the filing or effectiveness of the
Registration Statement or otherwise that have not been duly waived.
(xiv) Assuming the Company invests the proceeds from the sale of the
Firm Stock in the manner provided in the Prospectus, the Company is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder.
The Registration Statement has become effective under the Securities Act
and, to our knowledge, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are pending before or threatened by
the Commission.
In the course of the preparation of the Registration Statement and the
Prospectus, we participated in conferences with officials and representatives of
the Company, representatives of the Underwriters, counsel for the Underwriters
and Deloitte & Touche LLP, the independent certified public accountants of the
Company, at which the contents of the Registration Statement and Prospectus and
related matters
were discussed. We have not, however, independently verified and are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus. Based upon our participation described above, nothing has come to
our attention that would cause us to believe that (except for financial
statements and schedules and other financial and statistical data as to which we
express no belief) the Registration Statement and the Prospectus included
therein at the time the Registration Statement became effective contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that (except for financial statements and schedules and other financial and
statistical data, as to which we express no belief) the Prospectus, as of its
date and the date hereof, contained or contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Underwriting Agreement and
may not to be relied upon, used, circulated, quoted or otherwise referred to by
any other person or entity or for any other purpose without our express written
permission. We hereby expressly disclaim any duty to update any of the
statements made herein.
Very truly yours,
XXXXX, XXXXXXX & XXXXXXXXX, LLP
EXHIBIT B
FORM OF OPINION OF PATENT COUNSEL
(i) The statements in the Prospectus under the caption "Business --
Patents and Proprietary Rights," insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the matters
referred to therein.
(ii) Such counsel is not aware of any facts that would preclude the
Company or the Licensors from having clear title to their respective
patents and patent applications included in the Patent Rights, or that
would preclude the Company from having a valid license to the patents and
patent applications in the Patent Rights licensed from the Licensors. To
the knowledge of such counsel, the Company, the Licensors, and inventors
have complied with the PTO duty of candor and good faith in dealing with
the PTO, including the duty to disclose to the PTO all information known
to be material to the patentability of each of such United States patents
and patent applications. To the knowledge of such counsel, all assignments
from each named inventor to, as the case may be, the Company or the
Licensors have been executed and recorded with the PTO for each patent and
patent application. Such counsel has no knowledge that the Company lacks
any rights or licenses to use all patents and know-how necessary to
conduct the business now conducted or proposed to be conducted by the
Company as described in the Registration Statements and Prospectus, except
as described therein. Such counsel does not know of any facts that would
form a basis for a finding that any of the claims of the patents or patent
applications owned or licensed by the Company is unpatentable,
unenforceable or invalid. Such counsel is not aware of any pending U.S. or
foreign patent applications that, if issued, would limit or prohibit the
business now conducted or proposed to be conducted by the Company as
described in the Registration Statements and the Prospectus, except as
described therein. Such counsel does not know of any pending or threatened
action, suit, proceeding or claim by others that the Company is infringing
any patent that could result in a Material Adverse Effect.
(iii) There are no legal or governmental proceedings pending
relating to the Patent Rights, other than PTO review of pending
applications for patents, including appeal proceedings, and, to the
knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or others.
(iv) The products sold by the Company are covered, in whole or in
part, by claims of United States Patent Nos.: .
(v) As to the sections of the Prospectus under the captions "Risk
Factors -- If we are unable to protect our intellectual property rights,
our competitors may develop and market products with similar features that
may reduce demand for our products, and we may be prevented from
establishing collaborative relationships on favorable terms" "Risk Factors
-- We may become involved in lawsuits to protect or enforce our patents
that would be expensive and time-consuming," "Risk Factors -- Claims by
other companies that we infringe their proprietary technology may result
in liability for damages or stop our development and commercialization
efforts" and "Business -- Patents and Proprietary Rights," we have no
reason to believe that such sections, at the time the Initial Registration
Statement became effective or at any time subsequent thereto up to and as
of such Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
EXHIBIT C
FORM OF OPINION OF REGULATORY COUNSEL
(i) The statements in the Prospectus under the caption "Business --
Government Regulation," insofar as such statements constitute summaries of
the legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein.
(ii) To the knowledge of such counsel, there are no legal or
governmental proceedings relating to the Federal Food, Drug and Cosmetics
Act, the Public Health Service Act or any regulations of the FDA pending
or threatened to which the Company or any of the Subsidiaries is a party,
nor is such counsel aware of any material violations of such Acts or
regulations by the Company or any of the Subsidiaries.
(iii) As to the sections of the Prospectus under the captions "Risk
Factors -- If our products fail in clinical trials or if we cannot enroll
enough patients to complete our clinical trials we will not be able to
commercialize or sell our products," "Risk Factors -- If we fail to obtain
regulatory approvals for our products under development we will not be
able to commercialize or sell our products," and "Business -- Government
Regulation," such counsel has no reason to believe that such sections, at
the time the Initial Registration Statement became effective or at any
time subsequent thereto up to and as of such Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
