Exhibit 1.01
UNDERWRITING AGREEMENT
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
1. INTRODUCTORY. Acusphere, Inc., a Delaware corporation ("COMPANY"),
proposes to issue and sell from time to certain of its unsecured debt
securities, preferred stock, $0.01 par value ("PREFERRED STOCK"), common stock,
$0.01 par value ("COMMON STOCK"), warrants to purchase debt securities ("DEBT
SECURITY WARRANTS"), warrants to purchase shares of Preferred Stock ("PREFERRED
STOCK WARRANTS") and warrants to purchase shares of Common Stock ("COMMON STOCK
WARRANTS") (collectively, the Debt Security Warrants, Preferred Stock Warrants
and Common Stock Warrants are referred to herein as the "WARRANTS") registered
under the registration statement referred to in Section 2(a) ("REGISTERED
SECURITIES"). The Registered Securities constituting debt securities will be
issued under an indenture, dated as of , ("INDENTURE"), between
the Company and The Bank of New York as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions, selling
prices and other terms. The Registered Securities constituting Preferred Stock
may be issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices and other terms. The Registered Securities
constituting Warrants will be issued under a separate warrant agreement (each, a
"WARRANT AGREEMENT") between the Company and the warrant agent identified
therein. The Warrants may vary, as applicable, as to, among other terms, title,
type, specific number, exercise dates or periods, exercise prices, expiration
dates and terms of the related underlying securities. Particular series or
offerings of Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333- ), including a prospectus,
relating to the Registered Securities has been filed with the Securities
and Exchange Commission ("COMMISSION") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "REGISTRATION
STATEMENT", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or Preferred Stock) and the
terms of the offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)")
under the Securities Act of 1933 ("Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939
("Trust Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
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the date of each Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) The Company is an existing corporation in good standing under the
laws of the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where such failure to so qualify would not
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("Material
Adverse Effect").
(d) Each subsidiary of the Company is an existing corporation in good
standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where such failure to so qualify would not individually or in the aggregate
have a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects.
(e) If the Offered Securities are debt securities, the Indenture has
been duly authorized and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date (as defined below) or pursuant to Delayed Delivery
Contracts (as hereinafter defined), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and such
Offered Securities will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) If the Offered Securities are Preferred Stock, the Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock, the Offered Securities
and all other outstanding shares of Common Stock of the Company have been
duly authorized; all outstanding shares of Common Stock of the Company are,
and, when the Offered Securities have been delivered and paid for in
accordance with the Terms Agreement on the Closing Date, such Offered
Securities will have been, validly issued, fully paid and nonassessable and
will conform to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect to
the Offered Securities.
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(h) If the Offered Securities are convertible into Common Stock of the
Company, when the Offered Securities are delivered and paid for pursuant to
the Terms Agreement on the Closing Date, such Offered Securities will be
convertible into Common Stock of the Company in accordance with their terms
(if the Offered Securities are Preferred Stock) or the Indenture (if the
Offered Securities are debt securities); the shares of Common Stock
initially issuable upon conversion of such Offered Securities have been
duly authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Common Stock to be issued upon conversion.
(i) If the Offered Securities are Common Stock or are convertible into
Common Stock, except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment
in connection with the offering of the Offered Securities.
(j) If the Offered Securities are Common Stock or are convertible into
Common Stock, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act, except in each case in connection with securities
offered or to be offered pursuant to registration statements filed by the
Company under the Act prior to the date of the Prospectus.
(k) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act and, if the Offered Securities
are debt securities, the Trust Indenture Act and such as may be required
under state securities laws.
(l) If the Offered Securities are Warrants, the Warrant Agreement has
been duly authorized and the Offered Securities have been duly authorized;
and when the Offered Securities are delivered and paid for pursuant to the
Terms Agreement on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined), the Warrant Agreement
will have been duly executed and delivered, such Offered Securities will
have been duly executed, authenticated, issued and delivered and will
conform to the description thereof contained in the Prospectus and the
Warrant Agreement and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(m) If the Offered Securities are Common Stock Warrants or Preferred
Stock Warrants, when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date, the shares of Common
Stock or Preferred Stock of the Company, as applicable, initially issuable
upon exercise of such Offered Securities will have been duly authorized and
reserved for issuance upon such exercise of such Offered Securities and,
when issued upon such exercise, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock (if the Offered
Securities are Common Stock Warrants) or Preferred Stock (if the Offered
Securities are Preferred Stock Warrants) of the Company, as applicable,
have been duly authorized and validly issued, are fully paid and
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nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Common Stock or Preferred Stock, as applicable, to be
initially issued upon exercise of such Offered Securities.
(n) If the Offered Securities are Debt Security Warrants, when the
Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, the debt securities initially issuable upon
exercise of such Offered Securities will have been duly authorized for
issuance upon such exercise of such Offered Securities and, when issued
upon such exercise and authenticated in the manner provided for in the
Indenture and delivered in accordance with the terms of the Debt Security
Warrants, will conform to the description thereof contained in the
Prospectus and constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(o) The execution, delivery and performance of the Indenture (if the
Offered Securities are debt securities), the Warrant Agreement (if the
Offered Securities are Warrants), the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Offered Securities and, if the Offered Securities
are debt securities, Preferred Stock or Warrants, compliance with the terms
and provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (1) any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company,
any subsidiary of the Company or any of their properties, (2) any agreement
or instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (3) the
charter or by-laws of the Company or any such subsidiary, except, in the
case of subclauses (1) and (2), such breaches, violations and defaults
which would not individually or in the aggregate have a Material Adverse
Effect, and the Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement).
(p) The Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities or Preferred Stock, any
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(q) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(r) Except as disclosed in the Prospectus, the Company and its
subsidiaries possess adequate certificates, authorities or permits issued
by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(s) Except as disclosed in the Prospectus, no labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent that would reasonably be expected to have a
Material Adverse Effect.
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(t) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct the
business now operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect.
(u) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or
is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(v) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture (if the Offered Securities are debt securities), the
Warrant Agreement (if the Offered Securities are Warrants), the Terms
Agreement (including the provisions of this Agreement) or any Delayed
Delivery Contracts, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(w) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements have been prepared
in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; provided, however, that those
financial statements that are unaudited are subject to year-end adjustments
and do not contain all footnotes required under generally accepted
accounting principles; any schedules included in the Registration Statement
present fairly the information required to be stated therein; and if pro
forma financial statements are included in the Registration Statement and
Prospectus, the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(x) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
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(y) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (XXXXX) system.
(z) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
3. PURCHASE AND OFFERING OF OFFERED SECURITIES. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares or Warrants to be purchased by each Underwriter, the purchase price to
be paid by the Underwriters and (if the Offered Securities are debt securities,
Preferred Stock or Warrants) the terms of the Offered Securities not already
specified (in the Indenture, in the case of Offered Securities that are debt
securities and in the Warrant Agreement, in the case of Offered Securities that
are Warrants), including, but not limited to, interest rate (if debt
securities), dividend rate (if Preferred Stock), maturity (if debt securities),
any redemption provisions and any sinking fund requirements and whether any of
the Offered Securities may be sold to institutional investors pursuant to
Delayed Delivery Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or such
other time not later than seven full business days thereafter as the Underwriter
first named in the Terms Agreement (the "LEAD UNDERWRITER") and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "CLOSING DATE"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities. For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the Closing
Date (if later than the otherwise applicable settlement date) shall be the date
for payment of funds and delivery of securities for all the Offered Securities
sold pursuant to the offering, other than Contract Securities for which payment
of funds and delivery of securities shall be as hereinafter provided. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("DELAYED DELIVERY
CONTRACTS") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount or number of shares of Offered Securities to be sold pursuant
to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The Underwriters will not
have any responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
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If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "GLOBAL SECURITIES") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of Acusphere, Inc. at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the Trustee as custodian for
DTC of the Global Securities representing all of the Offered Securities.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that it will furnish to counsel for the Underwriters, one signed
copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Lead Underwriter, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the 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 Act, the Company promptly will notify the
Lead Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus
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supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Lead Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are debt securities,
Preferred Stock or Warrants) the determination of their eligibility for
investment under the laws of such jurisdictions in the United States as the
Lead Underwriter designates and will continue such qualifications in effect
so long as required for the distribution, provided, however, that the
Company will not be required to qualify as a foreign corporation or to file
a general consent to service of process in any such jurisdiction.
(g) If the Offered Securities are debt securities, Preferred Stock,
Debt Security Warrants or Preferred Stock Warrants, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Act relating to United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one year from
the date of issue (if the Offered Securities are debt securities or Debt
Security Warrants) or any series of Preferred Stock issued or guaranteed by
the Company (if the Offered Securities are Preferred Stock or Preferred
Stock Warrants), or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
the Lead Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date
specified under "Blackout" in the Terms Agreement, except in each case in
connection with securities being offered or to be offered pursuant to
registration statements filed by the Company under the Act prior to the
date of the Prospectus.
(h) If the Offered Securities are Common Stock, Common Stock Warrants
or are convertible into Common Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its Common Stock, Common Stock Warrants or
securities convertible into or exchangeable or exercisable for any shares
of its Common Stock, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of the Lead Underwriter for a period beginning at the time of
execution of the Terms Agreement and ending the number of days after the
Closing Date specified under "Blackout" in the Terms Agreement, except
issuances of Common Stock pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date of the Terms Agreement,
grants of employee stock options pursuant to the terms of stock option or
equity incentive plan of the Company, issuances of Common Stock pursuant to
the exercise of such options or issuances of Common Stock pursuant to the
Company's employee stock purchase or other similar plan.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Deloitte & Touche LLP in form and substance satisfactory to the
Representatives concerning the financial information with respect to the
Company set forth in the Prospectus, including any documents incorporated
by reference therein.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4 (a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that
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purpose shall have been instituted or, to the knowledge of the Company or
any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as one enterprise which, in the judgment of a majority in interest of
the Underwriters including any Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities or Preferred Stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities or Preferred Stock of the Company (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating) or any
announcement that the Company has been placed on negative outlook; (iii)
any change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Underwriters including any
Representatives, be likely to prejudice materially the success of the
proposed issue, sale or disposition of the Offered Securities, whether in
the primary market or in respect of dealings in the secondary market; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or, New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States,
any declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including any Representatives, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, counsel for the Company,
substantially to the effect that:
(i) The Company is an existing corporation in good standing under
the laws of the State of Delaware, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in Massachusetts;
(ii) If the Offered Securities are debt securities, the Indenture
has been duly authorized, executed and delivered by the Company and
has been duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized; the Offered Securities other
than any Contract Securities have been duly executed, authenticated,
issued and delivered; the Indenture and the Offered Securities other
than any Contract Securities constitute, and any Contract Securities,
when executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles (it being
agreed that such counsel may recite that they are members only of the
bar of the Commonwealth of Massachusetts and that its opinion as to
enforceability assumes that the applicable law governing
enforceability is that of the Commonwealth of Massachusetts); and the
Offered Securities other than any Contract Securities conform, and any
Contract Securities, when
-10-
so issued and delivered and sold will conform, to the description
thereof contained in the Prospectus;
(iii) If the Offered Securities are Preferred Stock, the Offered
Securities have been duly authorized; the Offered Securities other
than any Contract Securities have been validly issued and are fully
paid and nonassessable; any Contract Securities, when issued,
delivered and sold pursuant to Delayed Delivery Contracts, will be
validly issued, fully paid and non-assessable; and the Offered
Securities other than any Contract Securities conform, and any
Contract Securities, when so issued, delivered and sold, will conform,
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities;
(iv) If the Offered Securities are Common Stock, the Offered
Securities have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have
no preemptive rights with respect to the Offered Securities;
(v) If the Offered Securities are convertible into Common Stock
of the Company, the Offered Securities other than any Contract
Securities are, and any Contract Securities, when (if the Offered
Securities are debt securities) executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts or (if the Offered Securities are Preferred
Stock) when issued, delivered and sold pursuant to Delayed Delivery
Contracts, will be convertible into Common Stock of the Company in
accordance with (if they are debt securities) the Indenture or (if
they are Preferred Stock) their terms; the shares of Common Stock
initially issuable upon conversion of the Offered Securities have been
duly authorized and reserved for issuance upon such conversion and,
when issued upon such conversion, will be validly issued, fully paid
and nonassessable; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock to be issued upon
conversion;
(vi) If the Offered Securities are Common Stock or are
convertible into Common Stock, there are no contracts, agreements or
understandings known to such counsel between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act, except in each case in connection with
securities offered or to be offered pursuant to registration
statements filed by the Company under the Act prior to the date of the
Prospectus.
(vii) If the Offered Securities are Warrants, the Warrant
Agreement has been duly authorized and the Offered Securities have
been duly authorized; the Warrant Agreement has been duly executed,
issued and delivered by the Company, such Offered Securities have been
duly executed, authenticated, issued and delivered by the Company and
conform to the description thereof contained in the Prospectus; and
the Warrant Agreement and Offered Securities constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (it being agreed that such counsel may
recite that they are members only of the bar of the Commonwealth of
Massachusetts and that its opinion as to enforceability assumes that
the applicable law governing enforceability is that of the
Commonwealth of Massachusetts).
(viii) If the Offered Securities are Common Stock Warrants or
Preferred Stock Warrants, the shares of Common Stock or Preferred
Stock of the Company, as applicable, initially issuable upon exercise
of such Offered Securities have been duly authorized and reserved for
issuance upon such exercise of such Offered Securities and, when
issued upon such exercise, will be
-11-
validly such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
issued, fully paid and nonassessable; and the stockholders of the
Company have no preemptive rights with respect to the Common Stock or
Preferred Stock, as applicable, initially issuable upon exercise of
such Offered Securities.
(ix) If the Offered Securities are Debt Security Warrants, the
debt securities initially issuable upon exercise of such Offered
Securities have been duly authorized for issuance upon such exercise
of such Offered Securities and, when issued upon such exercise and
authenticated in the manner provided for in the Indenture and
delivered in accordance with the terms of the Debt Security Warrants,
will conform to the description thereof contained in the Prospectus
and constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (it being agreed
that such counsel may recite that they are members only of the bar of
the Commonwealth of Massachusetts and that its opinion as to
enforceability assumes that the applicable law governing
enforceability is that of the Commonwealth of Massachusetts).
(x) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and the Trust Indenture
Act and, if the Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state securities laws;
(xi) The execution, delivery and performance of the Indenture (if
the Offered Securities are debt securities), the Warrant Agreement (if
the Offered Securities are Warrants), the Terms Agreement (including
the provisions of this Agreement) and, if the Offered Securities are
debt securities or Preferred Stock, any Delayed Delivery Contracts and
the issuance and sale of the Offered Securities and, if the Offered
Securities are debt securities, Preferred Stock or Warrants,
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (1) any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, (2) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or (3) the charter or
by-laws of the Company or any such subsidiary, except, in the case of
subclauses (1) and (2), such breaches, violations and defaults which
would not individually or in the aggregate have a Material Adverse
Effect, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(xii) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel has
participated in conferences with officers and other representatives of
the Company, and representatives of the independent public accountants
for the Company, and representatives of the Underwriters, at which
conferences the contents of the Registration Statement and related
matters
-12-
were discussed and although such counsel need not pass upon, nor
assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, no facts
have come to the attention of such counsel that cause such counsel to
believe that the Registration Statement, as of the date of the Terms
Agreement or as of the Closing Date, or any amendment thereto, as of
its date or as of the Closing Date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein, in the light of the circumstances under which they
were made, not misleading, it being understood that such counsel need
express no belief with respect to the financial statements, the notes
thereto and related schedules, or other financial data or statistical
data derived from the financial statements included in, or omitted
from, the Registration Statement, and that the descriptions in the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and
(xiii) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities,
Preferred Stock or Warrants, any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of counsel for the Company, substantially to the effect that:
(i) Each subsidiary of the Company that (a) is guaranteeing the
Offered Securities, (b) is pledging its assets to secure, or the
capital stock of which is being pledged to secure, the Offered
Securities and (c) is a significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X, as promulgated by the
Commission as of the date hereof) is an existing corporation in good
standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and
conduct its business as may be described in the Prospectus; and each
such subsidiary of the Company that is incorporated in the United
States is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where such failure to so qualify would not
individually or in the aggregate have a Material Adverse Effect; and
the capital stock of each such subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(f) The Representatives shall have received from intellectual property
counsel for the Company, such opinion or opinions, dated the Closing Date,
with respect to the intellectual property rights, as defined herein, of the
Company and other related matters as the Representatives may require.
(g) The Representatives shall have received from ________, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Registration Statement, the Prospectus and other related
matters as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or
-13-
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in the Prospectus or
as described in such certificate.
(i) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to the
Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. The Lead Underwriter may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters under this Agreement and the Terms Agreement.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any
-14-
liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could reasonably be expected to have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or behalf of an indemnified party. No indemnified party shall effect any
settlement of any pending or threatened action without the prior written consent
of the indemnifying party, which such consent shall not be unreasonably withheld
or delayed.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities 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 in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
-15-
under this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount (if debt securities) or number of shares (if
Preferred Stock or Common Stock) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
Preferred Stock or Common Stock) of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount (if debt securities) or number of shares (if Preferred Stock or
Common Stock) of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount (if debt securities) or
number of shares (if Preferred Stock or Common Stock) of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. If the Offered
Securities are debt securities or Preferred Stock, the respective commitments of
the several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations to
purchase the principal amounts (if debt securities) or numbers of shares (if
Preferred Stock) of the Offered Securities set forth opposite their names in the
Terms Agreement as a result of Delayed Delivery Contracts entered into by the
Company.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 5(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. NOTICES. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Acusphere, Inc., Xxxxx Xxxxxxxxxx Xxxxx,
Xxxxxxx, XX, 00000, Attention: Chief Financial Officer.
-16-
10. SUCCESSORS. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. REPRESENTATION OF UNDERWRITERS. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. COUNTERPARTS. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to the Terms Agreement (including the
provisions of this Agreement) or the transactions contemplated thereby.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ACUSPHERE, INC.
By
------------------------
[Insert title]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
[NAMES OF UNDERWRITERS]
____________________________________
____________________________________
[Acting on behalf of themselves and as the Representatives of the
several Underwriters.]
ANNEX I
(THREE COPIES OF THIS DELAYED DELIVERY CONTRACT SHOULD BE SIGNED AND
RETURNED TO THE ADDRESS SHOWN BELOW SO AS TO ARRIVE NOT LATER THAN 9:00
A.M., NEW YORK TIME, ON______,______(1))
DELAYED DELIVERY CONTRACT
[INSERT DATE OF INITIAL PUBLIC OFFERING]
Acusphere, Inc.
c/o [Name & Address of UNDERWRITER]
Gentlemen:
The undersigned hereby agrees to purchase from Acusphere, Inc., a Delaware
corporation ("COMPANY"), and the Company agrees to sell to the undersigned, [IF
ONE DELAYED CLOSING, INSERT--AS of the DATE hereof, for delivery on
_________________ ("DELIVERY DATE"),]
[$]_________[shares]
--PRINCIPAL AMOUNT--OF THE COMPANY'S [INSERT TITLE OF SECURITIES]
("SECURITIES"), offered by THE COMPANY'S PROSPECTUS DATED _________________ AND
A PROSPECTUS Supplement dated _____________, relating thereto, receipt of copies
of which is hereby acknowledged, at ___% of the principal amount thereof plus
accrued interest, if any, --$_________ per share plus accrued dividends, if
any,--and on the further terms and conditions set forth in this Delayed Delivery
Contract ("CONTRACT").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the--principal--amounts set
forth below:
(1) INSERT DATE WHICH IS THE THIRD FULL BUSINESS DAY PRIOR TO CLOSING DATE
UNDER THE TERMS AGREEMENT.
PRINCIPAL AMOUNT
DELIVERY DATE NUMBER OF SHARES
--------------- ------------------
____________________________ _____________________________
____________________________ _____________________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
in Federal (same day) funds by certified or official bank check or wire transfer
to an account designated by the Company, at the office of _________, at 10 A.M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned for delivery on such Delivery Date in
definitive [IF DEBT ISSUE, INSERT--FULLY registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not
at--the--such--Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total--principal amount--number of shares--of
the Securities less the--principal amount---number of shares--thereof covered by
this and other similar Contracts. The undersigned represents that its investment
in the Securities is not, as of the date hereof, prohibited under the laws of
any jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
-------------------------------------
(Name of Purchaser)
By
-----------------------------------
-------------------------------------
(Title of Signatory)
-------------------------------------
(ADDRESS OF PURCHASER)
Accepted, as of the above date.
ACUSPHERE, INC.
By
----------------------------------
[INSERT TITLE]
EXHIBIT A
ACUSPHERE, INC.("COMPANY")
DEBT SECURITIES
[FORM OF] TERMS AGREEMENT
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the terms and
conditions of the
Underwriting Agreement filed as an exhibit to the Company's
registration statement on Form S-3 (No. 333- ) ("
UNDERWRITING AGREEMENT"), the
following securities ("OFFERED SECURITIES") on the following terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
PRINCIPAL AMOUNT: $
OVER-ALLOTMENT: In addition, upon written notice from the Representative[s]
given to the Company from time to time not more than 30 days subsequent to the
date hereof, the Underwriters may purchase up to $_________ additional principal
amount of the Offered Securities (the "Optional Securities") at the purchase
price. The Company agrees to sell to the Underwriters the Optional Securities,
and the Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the Principal Amount of Offered Securities
set forth opposite such Underwriter's name on Schedule A hereto (subject to
adjustment by the Representative[s] to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Offered Securities. No Optional Securities shall
be sold or delivered unless the Offered Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representative[s] to the Company.
INTEREST: [ % per annum, from _______________, ____, payable semiannually
on ________and ________, commencing __________________, ____ to holders of
record on the preceding _________ or __________, as the case may be.] [Zero
coupon.]
MATURITY:
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be , .
Underwriters' fee is % of the principal amount of the Contract Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest[i, if any,]
from
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by the
[Representative[s] [Underwriters].
CLOSING: 10 A.M. on , , at ____________, in
Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only
via DTC.]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF THE [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the
Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of _____________ at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the
Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of (i) the following information in the Prospectus furnished
on behalf of each Underwriter: the concession and reallowance figures appearing
in the paragraph under the caption "Underwriting" in the prospectus supplement
and the information contained in the paragraph
under the caption "Underwriting" in the prospectus supplement; and (ii) the
following information in the prospectus supplement furnished on behalf of
[INSERT NAME OF UNDERWRITER]: .
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ACUSPHERE, INC.
By
-------------------------
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
[NAMES OF UNDERWRITER[S]]
____________________________________
____________________________________
[Acting on behalf of themselves and as the Representatives of the
several Underwriters.]
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
------------- ------------------
$
------------------
Total $
------------------
EXHIBIT B
ACUSPHERE, INC.
("COMPANY")
PREFERRED--COMMON--STOCK
[FORM OF] TERMS AGREEMENT
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the terms and
conditions of the
Underwriting Agreement filed as an exhibit to the Company's
registration statement on Form S-3 (No. 333- ) ("
UNDERWRITING AGREEMENT"), the
following securities ("OFFERED SECURITIES") on the following terms:
TITLE:
NUMBER OF SHARES:
OVER-ALLOTMENT: In addition, upon written notice from the Representative[s]
given to the Company from time to time not more than 30 days subsequent to the
date hereof, the Underwriters may purchase up to additional shares of the
Offered Securities (the "Optional Securities") at the purchase price. The
Company agrees to sell to the Underwriters the Optional Securities, and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the Number of Offered Securities set forth
opposite such Underwriter's name on Schedule A hereto (subject to adjustment by
the Representative[s] to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Offered Securities. No Optional Securities shall be sold or
delivered unless the Offered Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Representative[s] to the Company.
(1) DIVIDEND RATE:
(1) TO BE INCLUDED ONLY IF TERMS AGREEMENT RELATES TO PREFERRED STOCK
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be , .
Underwriters' fee is $ per share of the Contract Securities.]
PURCHASE PRICE: $ per share [IF PREFERRED STOCK ISSUE,
INSERT--PLUS accrued dividends[, if any,] from , ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
CLOSING: 10 A.M. on , , at ____________, in Federal (same day) funds.
(2) UNDERWRITER[S']['S] COMPENSATION: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF THE [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the
Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of ________at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the
Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of (i) the following information in the Prospectus furnished
on behalf of each Underwriter: the concession and reallowance figures appearing
in the paragraph under the caption "Underwriting" in the prospectus supplement
and the information contained in the paragraph under the caption "Underwriting"
in the prospectus supplement; and (ii) the following information in the
prospectus supplement furnished on behalf of [INSERT NAME OF UNDERWRITER]: .
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ACUSPHERE, INC.
By
------------------------
[INSERT TITLE]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
[NAMES OF UNDERWRITER[S]]
____________________________________
____________________________________
[Acting on behalf of themselves and as the Representatives of the
several Underwriters.]
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
------------- ------------------
$
------------------
Total $
------------------
EXHIBIT C
ACUSPHERE, INC.
("COMPANY")
[COMMON STOCK] [PREFERRED STOCK] [DEBT SECURITY] WARRANTS
[FORM OF] TERMS AGREEMENT
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the terms and
conditions of the
Underwriting Agreement filed as an exhibit to the Company's
registration statement on Form S-3 (No. 333- ) ("UNDERWRITING AGREEMENT"), the
following securities ("OFFERED SECURITIES") on the following terms:
TITLE:
NUMBER: WARRANT AGENT:
NUMBER OF [COMMON STOCK] [PREFERRED STOCK] [DEBT SECURITY] WARRANTS ISSUED
WITH EACH [SHARE OF COMMON STOCK] [SHARE OF PREFERRED STOCK] [$ PRINCIPAL AMOUNT
OF DEBT SECURITIES]:
[NUMBER OF SHARES] [PRINCIPAL AMOUNT] PURCHASABLE UPON EXERCISE OF ONE
[COMMON STOCK] [PREFERRED STOCK] [DEBT SECURITY] WARRANT:
DATE ON WHICH [COMMON STOCK] [PREFERRED STOCK] [DEBT SECURITY] WARRANTS
EXPIRE:
OVER-ALLOTMENT: In addition, upon written notice from the Representative[s]
given to the Company from time to time not more than 30 days subsequent to the
date hereof, the Underwriters may purchase up to________________________________
_____________________________________________________________________additional
shares of the Offered Securities (the "Optional Securities") at the purchase
price. The Company agrees to sell to the Underwriters the Optional Securities,
and the Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the Number of Offered Securities set forth
opposite such Underwriter's name on Schedule A hereto (subject to adjustment by
the Representative[s] to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Offered Securities. No Optional Securities shall be sold or
delivered unless the Offered Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Representative[s] to the Company.
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.][Delivery Date[s] shall be , .
Underwriters' fee is .] EXERCISE PRICE(s): $
PURCHASE PRICE: $
EXPECTED REOFFERING PRICE: $
CLOSING: 10 A.M. on , , at ________, in Federal (same day) funds.
(3) UNDERWRITER[S']['S] COMPENSATION: $ payable to the [Representative[s]
for the proportionate accounts of the] Underwriter[s] on the Closing Date.
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF THE [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of ________at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of (i) the following information in the Prospectus furnished
on behalf of each Underwriter: the concession and reallowance figures appearing
in the paragraph under the caption "Underwriting" in the prospectus supplement
and the information contained in the paragraph under the caption "Underwriting"
in the prospectus supplement; and (ii) the following information in the
prospectus supplement furnished on behalf of [INSERT NAME OF UNDERWRITER]: .
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ACUSPHERE, INC.
By
------------------------
[INSERT TITLE]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
[NAMES OF UNDERWRITER[S]]
____________________________________
____________________________________
[Acting on behalf of themselves and as the Representatives of the
several Underwriters.]
SCHEDULE A
UNDERWRITER NUMBER OF WARRANTS
------------- ---------------------
$
------------------
Total $
------------------
