Common Stock ($0.001 Par Value) EQUITY UNDERWRITING AGREEMENT
EXHIBIT 1.1
8,000,000 Shares
Common Stock
($0.001 Par Value)
January
30, 2006
Deutsche Bank Securities Inc.
Xxxxxxxxx & Company, Inc.
As Representatives of the
Several Underwriters
Xxxxxxxxx & Company, Inc.
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ThermoGenesis Corp., a Delaware corporation (the “Company”) proposes to sell to the several
underwriters (the “Underwriters”) named in Schedule I hereto for whom you are acting as
representatives (the “Representatives”) an aggregate of 8,000,000 shares (the “Firm Shares”) of the
Company’s common stock, $0.001 par value (the “Common Stock”) all of which will be sold by the
Company. The respective amounts of the Firm Shares to be so purchased by the several Underwriters
are set forth opposite their names in Schedule I hereto. The Company also proposes to sell at the
Underwriters’ option an aggregate of up to 800,000 additional shares of the Company’s Common
Stock (the “Option Shares”) as set forth below.
As the Representatives, you have advised the Company (a) that you are authorized to enter into
this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm Shares set forth
opposite their respective names in Schedule I, plus their pro rata portion of the Option Shares if
you elect to exercise the over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the “Shares.”
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to each of the Underwriters as follows:
(a) A registration statement on Form S-3 (File No. 333-129845) with respect to the Shares has
been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as
amended (the “Act”), and the rules and regulations (the “Rules and Regulations”) of the Securities
and Exchange Commission (the “Commission”) thereunder and has been filed with the Commission. The
Company and the transactions contemplated by this Agreement meet the requirements and comply with
the conditions for the use of Form S-3. Copies of such registration statement, including any
amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and schedules, as finally
amended and revised, have heretofore been delivered by the Company to you. Such registration
statement, together with any registration statement filed by the Company pursuant to Rule 462(b)
under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to
include all information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act
and contained in the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the date of this
Agreement. “Prospectus” means the form of prospectus first filed with the Commission pursuant to
and within the time limits described in Rule 424(b) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is herein referred to
as a “Preliminary Prospectus.” Any reference herein to the Registration Statement, any Preliminary
Prospectus or to the Prospectus or to any amendment or supplement to any of the foregoing documents
shall be deemed to refer to and include any documents incorporated by reference therein, and, in
the case of any reference herein to the Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule 424(b) under the Act, and prior to
the termination of the offering of the Shares by the Underwriters.
(b) As of the Applicable Time (as defined below) and as of the Closing Date or the Option
Closing Date, as the case may be, neither (i) the General Use Free Writing Prospectus(es) (as
defined below) issued at or prior to the Applicable Time, the Statutory Prospectus (as defined
below) and the information included on Schedule II hereto, all considered together (collectively,
the “General Disclosure Package”), nor (ii) any individual Limited Use Free Writing Prospectus (as
defined below), when considered together with the General Disclosure Package, included or will
include any untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from any Issuer Free
Writing Prospectus, in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the Representatives, specifically for use
therein, it being
understood and agreed that the only such information is that described in Section 13 herein. As
used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 6:30 pm (New York time) on the date of this Agreement or such other
time as agreed to by the Company and the Representatives.
“Statutory Prospectus” as of any time means the Preliminary Prospectus relating to the Shares
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Shares in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g) under the Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule III to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(c) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and authority to own or
lease its properties and conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus. The Company is duly qualified to transact business
in all jurisdictions in which the conduct of its business requires such qualification. The
Company has no subsidiaries.
d) The outstanding shares of Common Stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for as contemplated herein will be
validly issued, fully paid and non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof. Neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to
any rights, other than those which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(e) The information set forth under the caption “Capitalization” in the Registration
Statement and the Prospectus (and any similar section or information contained in the General
Disclosure Package) is true and correct. All of the Shares conform to the description thereof
contained in the Registration Statement, the General Disclosure Package and the Prospectus. The
form of certificates for the Shares conforms to the corporate law of the jurisdiction of the
Company’s incorporation.
(f) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Shares, and no proceeding for that purpose or pursuant to Section 8A of
the Act has been instituted or, to the Company’s knowledge, threatened by the Commission. The
Registration Statement contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and will conform to, the
requirements of the Act and the Rules and Regulations. The documents incorporated, or to be
incorporated, by reference in the Prospectus, at the time filed with the Commission conformed or
will conform, in all respects to the requirements of the Securities Exchange Act of 1934 (“Exchange
Act”) or the Act, as applicable, and the rules and regulations of the Commission thereunder. The
Registration Statement and any amendment thereto do not contain, and will not contain, any untrue
statement of a material fact and do not omit, and will not omit, to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. The Prospectus
and any amendments and supplements thereto do not contain, and will not contain, any untrue
statement of a material fact; and do not omit, and will not omit, to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use therein, it being understood and agreed that the only such
information is that described in Section 13 herein.
(g) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares or until any earlier date that
the Company notified or notifies the Representatives as described in the next sentence, did not,
does not and will not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus, including any document
incorporated by reference therein that has not been superseded or modified.
(h) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus and other materials, if any, permitted under the Act and consistent with
Section 4(b) below. The Company will file with the Commission all Issuer Free Writing Prospectuses
in the time required under Rule 433(d) under the Act. The Company has satisfied or will satisfy
the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any
electronic road show.
(i) (i) At the time of filing the Registration Statement and (ii) as of the date hereof
(with such date being used as the determination date for purposes of this clause(ii)), the Company
was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking
into account any determination by the Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company be considered an ineligible issuer), including, without limitation, for
purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares as
contemplated by the Registration Statement.
(j) The financial statements of the Company, together with related notes and schedules as set
forth or incorporated by reference in the Registration Statement, the General Disclosure Package
and the Prospectus, present fairly the financial position and the results of operations and cash
flows of the Company, at the indicated dates and for the indicated periods. Such financial
statements and related schedules have been prepared in accordance with generally accepted
principles of accounting (“GAAP”), consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair presentation of results for such
periods have been made. The summary and selected financial and statistical data included or
incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus presents fairly the information shown therein and such data has been compiled on a basis
consistent with the financial statements presented therein and the books and records of the
Company. The Company does not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations or any “variable interest entities” within the meaning
of Financial Accounting Standards Board Interpretation No. 46), not disclosed in, or incorporated
by reference into, the Registration Statement, the General Disclosure Package and the Prospectus.
There are no financial statements (historical or pro forma) that are required to be included in or
incorporated into the Registration Statement, the General Disclosure Package or the Prospectus that
are not included as required.
(k) Ernst & Young LLP, who have certified certain of the financial statements filed with the
Commission as part of, or incorporated by reference in, the Registration Statement, the General
Disclosure Package and the Prospectus, is an independent registered public accounting firm with
respect to the Company and the Subsidiaries within the meaning of the Act and the applicable Rules
and Regulations and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(l) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any of the Subsidiaries is aware of (i) any material weakness
in its internal control over financial reporting or (ii) change in internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(m) Solely to the extent that the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and
regulations promulgated by the Commission and the Nasdaq Capital Market thereunder (the
“Xxxxxxxx-Xxxxx Act”) has been applicable to the Company, there is and has been no failure on the
part of the Company to comply in all material respects with any provision of the Xxxxxxxx-Xxxxx
Act. The Company has taken all necessary actions to ensure that it is in compliance with all
provisions of the Xxxxxxxx-Xxxxx Act that are in effect and with which the Company is required to
comply and is actively taking steps to ensure that it will be in compliance with other provisions
of the Xxxxxxxx-Xxxxx Act not currently in effect or which will become applicable to the Company.
(n) There is no action, suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company before any court or administrative agency or otherwise
which if determined adversely to the Company would either (i) have, individually or in the
aggregate, a material adverse effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the Company or (ii) prevent
the consummation of the transactions contemplated hereby (the occurrence of any such effect or any
such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material
Adverse Effect”), except as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus.
(o) The Company has good and marketable title to all of the properties and assets reflected
in the financial statements hereinabove described in or incorporated into the Registration
Statement, the General Disclosure Package and the Prospectus, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such financial statements or described
in the Registration Statement, the General Disclosure Package and the Prospectus or which are not
material in amount. The Company occupies its leased properties under valid and binding leases
conforming in all material respects to the description thereof set forth in or incorporated into
the Registration Statement, the General Disclosure Package and the Prospectus.
(p) The Company has filed all Federal, State, local and foreign tax returns which have been
required to be filed and have paid all taxes indicated by such returns and all assessments received
by them or any of them to the extent that such taxes have become due and are not being contested in
good faith and for which an adequate reserve for accrual has been established in accordance with
GAAP. All tax liabilities have been adequately provided for in the financial statements of the
Company, and the Company does not know of any actual or proposed additional material tax
assessments.
(q) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, there has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise), or prospects of the Company,
whether or not occurring in the ordinary course of business, and there has not been any material
transaction entered into or any material transaction that is probable of being entered into by the
Company, other than transactions in the ordinary course of business and changes and transactions
described in or incorporated into the Registration Statement, the General Disclosure Package and
the Prospectus, as each may be amended or supplemented. The Company has no material contingent
obligations which are not disclosed in the Company’s financial statements which are included in the
Registration Statement, the General Disclosure Package and the Prospectus.
(r) The Company has not been, nor with the giving of notice or lapse of time or both, will
be, (i) in violation of its certificate or articles of incorporation, by-laws, certificate of
formation, limited liability agreement, partnership agreement or other organizational documents or
(ii) in violation of or in default under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it, or any of its properties, is bound
and, solely with respect to this clause (ii), which violation or default would have a Material
Adverse Effect. The execution and delivery of this Agreement and the consummation of the
transactions herein
contemplated and the fulfillment of the terms hereof will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a party or by which the Company
or any of its properties is bound, or of the certificate or articles of incorporation or by-laws of
the Company or any law, order, rule or regulation judgment, order, writ or decree applicable to the
Company of any court or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction.
(s) The execution and delivery of, and the performance by the Company of its obligations
under, this Agreement has been duly and validly authorized by all necessary corporate action on the
part of the Company, and this Agreement has been duly executed and delivered by the Company.
(t) Each approval, consent, order, authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental body necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the Commission, the
National Association of Securities Dealers, Inc. (the “NASD”) or such additional steps as may be
necessary to qualify the Shares for public offering by the Underwriters under state securities or
Blue Sky laws) has been obtained or made and is in full force and effect.
(u) The Company holds all material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their businesses; the Company owns or possesses
the right to use all patents, patent rights, trademarks, trade names, service marks, service names,
copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable
proprietary or confidential information, systems or procedures) and other intellectual property
rights (“Intellectual Property”) necessary to carry on its business in all material respects; the
Company has not infringed, and the Company has received notice of conflict with, any Intellectual
Property of any other person or entity. The Company has taken all reasonable steps necessary to
secure interests in such Intellectual Property from its contractors. There are no outstanding
options, licenses or agreements of any kind relating to the Intellectual Property of the Company
that are required to be described in the Registration Statement, the General Disclosure Package and
the Prospectus and are not described in all material respects. The Company is not a party to or
bound by any options, licenses or agreements with respect to the Intellectual Property of any other
person or entity that are required to be set forth in the Prospectus and are not described in all
material respects. None of the technology employed by the Company has been obtained or is being
used by the Company in violation of any contractual obligation binding on the Company or any of its
officers, directors or employees or otherwise in violation of the rights of any persons; the
Company has not received any written or oral communications alleging that the company has violated,
infringe or conflicted with, or, by conducting its business as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus, would violate, infringe or conflict
with, any of the Intellectual Property of any other person or entity. Except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, the Company knows of no
infringement by others of Intellectual Property owned by or licensed to the Company.
(v) Neither the Company, nor to the Company’s knowledge, any of its affiliates, has taken or
may take, directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the stabilization or manipulation
of the price of the shares of Common Stock to facilitate the sale or resale of the Shares. The
Company acknowledges that the Representatives may engage in passive market making transactions in
the shares of Common Stock on the Nasdaq Capital Market in accordance with Regulation M under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(w) The Company is not and, after giving effect to the offering and sale of the Shares
contemplated hereunder and the application of the net proceeds from such sale as described in the
Properties, will not be an “investment company” within the meaning of such term under the
Investment Company Act of 1940 as amended (the “1940 Act”), and the rules and regulations of the
Commission thereunder.
(x) The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP 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.
(y) The Company has established and maintains “disclosure controls and procedures” (as
defined in Rules 13a-14(c) and 15d-14(c) under the Exchange Act); the Company’s “disclosure
controls and procedures” are reasonably designed to ensure that all information (both financial and
non-financial) required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the rules and regulations of the Exchange Act, and that all such information is
accumulated and communicated to the Company’s management as appropriate to allow untimely decisions
regarding required disclosure and to make the certifications of the Principal Executive Officer and
Principal Financial Officer of the Company required under the Exchange Act with respect to such
reports.
(z) The statistical, industry-related and market-related data included in or incorporated
into the Registration Statement, the General Disclosure Package and the Prospectus are based on or
derived from sources which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
(aa) The operations of the Company are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable
rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any or its subsidiaries with respect to the Money Laundering Laws is
pending or, to the Company’s knowledge, threatened.
(bb) Neither the Company nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(cc) The Company carries, or is 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.
(dd) The Company is in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“ERISA”); no “reportable event” (as defined
in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the “Code”); and each “pension
plan” for which the Company 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, which would cause the loss of such qualification.
(ee) To the Company’s knowledge, there are no affiliations or associations between any member
of the NASD and any of the Company’s officers, directors or 5% or greater securityholders, except
as set forth in the Registration Statement.
(ff) The Company is not in violation of any statute, 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
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.
(gg) The Shares have been approved for listing subject to notice of issuance on the Nasdaq
Capital Market.
(hh) There are no relationships or related-party transactions involving the Company or any
other person required to be described in the Prospectus which have not been described as required.
(ii) The Company has not made any contribution or other payment to any official of, or
candidate for, any federal, state or foreign office in violation of any law which violation is
required to be disclosed in the Prospectus.
2. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the Underwriters and each
Underwriter agrees, severally and not jointly, to purchase, at a
price of $3.76 per share, the
number of Firm Shares set forth opposite the name of each Underwriter in Schedule I hereof, subject
to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in Federal (same day)
funds against delivery of certificates therefor to the Representatives for the several accounts of
the Underwriters. Such payment and delivery are to be made through the facilities of The
Depository Trust Company, New York, New York at 10:00 a.m., New York time, on the third business
day after the date of this Agreement or at such other time and date not later than five business
days thereafter as you and the Company shall agree upon, such time and date being herein referred
to as the “Closing Date.” (As used herein, “business day” means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for business and are not
permitted by law or executive order to be closed.)
(c) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company hereby grants an option to the
several Underwriters to purchase the Option Shares at the price per share as set forth in the first
paragraph of this Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once thereafter within
30 days after the date of this Agreement, by you, as Representatives of the several Underwriters,
to the Company setting forth the number of Option Shares as to which the several Underwriters are
exercising the option and the time and date at which such certificates are to be delivered. The
time and date at which certificates for Option Shares are to be delivered shall be determined by
the Representatives but shall not be earlier than three nor later than 10 full business days after
the exercise of such option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the “Option Closing Date”). If the date of exercise of the option is three
or more days before the Closing Date, the notice of exercise shall set the Closing Date as the
Option Closing Date. The number of Option Shares to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Shares being purchased as the number of Firm
Shares being purchased by such Underwriter bears to the total number of Firm Shares, adjusted by
you in such manner as to avoid fractional shares. The option with respect to the Option Shares
granted hereunder may be exercised only to cover over-allotments in the sale of the Firm Shares by
the Underwriters. You, as Representatives of the several Underwriters, may cancel such option at
any
time prior to its expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Shares shall be made on the
Option Closing Date in Federal (same day funds) through the facilities of The Depository Trust
Company in New York, New York drawn to the order of the Company.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Firm
Shares as soon as the Representatives deem it advisable to do so. The Firm Shares are to be
initially offered to the public at the initial public offering price set forth in the Prospectus.
The Representatives may from time to time thereafter change the public offering price and other
selling terms.
It is further understood that you will act as the Representatives for the Underwriters in the
offering and sale of the Shares in accordance with a Master Agreement Among Underwriters entered
into by you and the several other Underwriters.
4. Covenants of the Company.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under
the Act a Prospectus in a form approved by the Representatives containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B
or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an
amendment or supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall have reasonably objected in
writing or which is not in compliance with the Rules and Regulations, and (C) file on a timely
basis all reports and any definitive proxy or information statements required to be filed by the
Company with the Commission subsequent to the date of the Prospectus and prior to the termination
of the offering of the Shares by the Underwriters.
(b) The Company will (i) not make any offer relating to the Shares that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 under the Act) required to be filed by the Company with the Commission under
Rule 433 under the Act unless the Representatives approves its use in writing prior to first use
(each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing
Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus
as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under
the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to
timely filing with the Commission, legending and record keeping and (iv) not take any action that
would result in an Underwriter or the Company being required to file with the Commission pursuant
to Rule 433(d) under the Act a free writing prospectus prepared by or on
behalf of such Underwriter that such Underwriter otherwise would not have been required to file
thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a
requirement to file with the Commission any electronic road show.
(c) The Company will advise the Representatives promptly (A) when the Registration Statement
or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments
from the Commission, (C) of any request of the Commission for amendment of the Registration
Statement or for supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution
of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its
best efforts to prevent the issuance of any such order and to obtain as soon as possible the
lifting thereof, if issued.
(d) The Company will cooperate with the Representatives in endeavoring to qualify the Shares
for sale under the securities laws of such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company shall not be
required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent. The Company
will, from time to time, prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the Shares.
(e) The Company will deliver to, or upon the order of, the Representatives, from time to time,
as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The
Company will deliver to, or upon the order of, the Representatives, from time to time, as many
copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The
Company will deliver to, or upon the order of, the Representatives during the period when delivery
of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the
“Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing Date, four signed copies of
the Registration Statement and all amendments thereto including all exhibits filed therewith, and
will deliver to the Representatives such number of copies of the Registration Statement (including
such number of copies of the exhibits filed therewith that may reasonably be requested), including
documents incorporated by reference therein, and of all amendments thereto, as the Representatives
may reasonably request.
(f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act,
and the rules and regulations of the Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under
the Act) is required by law to be delivered by an Underwriter or dealer, any event shall
occur as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement
the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with
the Commission an appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange
Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended
or supplemented will not, in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with the law.
(g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then
on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to
comply with any law, the Company promptly will either (i) prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to
the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the General Disclosure Package
so that the General Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration Statement then on file, or so that
the General Disclosure Package will comply with law.
(h) The Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the effective date of the
Registration Statement, an earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 under the Act and will advise you in writing when such statement has been so
made available.
(i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they
have been prepared by or are available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period covered by the most recent
financial statements appearing in the Registration Statement and the Prospectus.
(j) No offering, sale, short sale or other disposition of any shares of Common Stock of the
Company or other securities convertible into or exchangeable or exercisable for shares of Common
Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days
after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder
or with the prior written consent of Deutsche Bank Securities Inc. Notwithstanding the foregoing,
if (1) during the last 17 days of the 90-day restricted period, the Company issues an
earnings release or material news or a material event relating to the Company occurs; or (2) prior
to the expiration of the 90-day restricted period, the Company announces that it will release
earnings results during the 16-day period following the last day of the 90-day restricted period,
then in each case the restrictions imposed by this Agreement shall continue to apply until the
expiration of the 18-day period beginning on the date of the release of the earnings results or the
occurrence of material news or a material event relating to the Company, as the case may be, unless
the Representatives waive, in writing, such extension.
(k) The Company will use its best efforts to list the Shares for quotation on the Nasdaq
Capital Market and maintain the listing of the Shares on the Nasdaq Capital Market.
(l) The Company has caused each officer and director of the Company to furnish to you, on or
prior to the date of this agreement, a letter or letters, substantially in the form attached hereto
as Exhibit A (the “Lockup Agreement”).
(m) The Company shall apply the net proceeds of its sale of the Shares as set forth in the
Registration Statement, General Disclosure Package and the Prospectus.
(n) The Company shall not invest, or otherwise use the proceeds received by the Company from
its sale of the Shares in such a manner as would require the Company to register as an investment
company under the 0000 Xxx.
(o) The Company will maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(p) The Company will not take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the performance of the
obligations of the Company under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and disbursements of counsel
for the Company; the cost of printing and delivering to, or as requested by, the Underwriters
copies of the Registration Statement, Preliminary Prospectuses, the Issuer Free Writing
Prospectuses, the Prospectus, this Agreement, the Underwriters’ Selling Memorandum, the
Underwriters’ Invitation Letter, the Additional Listing Application, if any, the Blue Sky Survey
and any supplements or amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any required review by the
NASD of the terms of the sale of the Shares; the Additional Listing Fee of the Nasdaq Capital
Market; the expenses of the Representatives, plus fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under State securities or
Blue Sky laws. In addition, if this Agreement shall not be consummated because the conditions in
Section 6 hereof are not satisfied, or because this Agreement is terminated by the Representatives
pursuant to Section 11 hereof, or by reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any
of the terms hereof on its part to be performed, unless such failure, refusal or inability is due
primarily to the default or omission of any Underwriter, the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to market the Shares
or in contemplation of performing their obligations hereunder; but the Company shall not in any
event be liable to any of the several Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date are subject to the accuracy, as of the
Applicable Time, the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the performance by the
Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become
effective and the Prospectus and each Issuer Free Writing Prospectus required shall have been filed
as required by Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within the time
period prescribed by, and in compliance with, the Rules and Regulations, and any request of the
Commission for additional information (to be included in the Registration Statement or otherwise)
shall have been disclosed to the Representatives and complied with to its reasonable satisfaction.
No stop order suspending the effectiveness of the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under
the Act shall have been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or the Option Closing Date,
as the case may be, the opinion of Bullivant/Xxxxxx/Xxxxxx P.C., counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and authority to own or
lease its properties and conduct its business as described in the Registration Statement; the
Company is duly qualified to transact business in all jurisdictions in which the conduct of its
business requires such qualification, or in which the failure to qualify would not have a
materially adverse effect upon the business of the Company.
(ii) The Company has authorized and outstanding capital stock as set forth under the caption
“Capitalization” in the Registration Statement and the Prospectus (and any similar section or
information contained in the General Disclosure Package); the authorized shares of the Company’s
Common Stock have been duly authorized; the outstanding shares of the Company’s Common Stock have
been duly authorized and validly issued and are fully paid and non-assessable; all of the Shares
conform to the description thereof contained in the Registration Statement, the General Disclosure
Package and the Prospectus; the certificates for the Shares, assuming they are in the form filed
with the Commission, are in due and proper form; the shares of Common Stock, including the Option
Shares, if any, to be sold by the Company pursuant to this Agreement have been duly authorized and
will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by
this Agreement; and no preemptive rights of stockholders exist with respect to any of the Shares or
the issue or sale thereof.
(iii) Except as described in or contemplated by the Registration Statement, the General
Disclosure Package and the Prospectus, there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of
capital stock of the Company and there are no outstanding or authorized options, warrants or rights
of any character obligating the Company to issue any shares of its capital stock or any securities
convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of
such stock; and except as described in the Registration Statement, the General Disclosure Package
and the Prospectus, no holder of any securities of the Company or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company
to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Shares
or the right to have any Common Shares or other securities of the Company included in the
Registration Statement or the right, as a result of the filing of the Registration Statement, to
require registration under the Act of any shares of Common Stock or other securities of the
Company.
(iv) The Registration Statement has become effective under the Act and, to the best of the
knowledge of such counsel, no stop order proceedings with respect thereto and no proceeding for
that purpose or pursuant to Section 8A of the Act have been instituted or are pending or threatened
under the Act.
(v) The Registration Statement, the Prospectus and each amendment or supplement thereto and
document incorporated by reference therein comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the financial statements and
related schedules or incorporated by reference therein). The conditions for the use of Form S-3,
set forth in the General Instructions thereto, have been satisfied.
(vi) Such counsel does not know of any contracts or documents required to be filed as
exhibits to or incorporated by reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed, incorporated by reference or
described as required, and such contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material respects.
(vii) Such counsel knows of no material legal or governmental proceedings pending or
threatened against the Company except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(viii) The execution and delivery of this Agreement and the consummation of the transactions
contemplated herein do not and will not conflict with or violate any of the terms or provisions of
the charter or by-laws of the Company, or conflict with or result in a breach of, or default under,
any of the terms or provisions of any material indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which the Company may be bound.
(ix) This Agreement has been duly authorized, executed and delivered by the Company.
(x) No approval, consent, order, authorization, designation, declaration or filing by or with
any regulatory, administrative or other governmental body is necessary in connection with the
execution and delivery of this Agreement and the consummation of the transactions herein
contemplated (other than as may be required by the NASD or as required by State securities and Blue
Sky laws as to which such counsel need express no opinion) except such as have been obtained or
made, specifying the same.
(xi) The Company is not, and will not become, as a result of the consummation of the
transactions contemplated by this Agreement, and application of the net proceeds therefrom as
described in the Prospectus, required to register as an investment company under the 0000 Xxx.
(xii) Any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 under
the Act has been made within the time period required by Rule 433(d) under the Act.
In rendering such opinion Bullivant/Xxxxxx/Xxxxxx P.C. may rely as to matters governed by the
laws of states other than California or Federal laws on local counsel in such jurisdictions,
provided that in each case Bullivant/Xxxxxx/Xxxxxx P.C. shall state that they believe that they and
the Underwriters are justified in relying on such other counsel. In addition to the matters set
forth above, such opinion shall also include a statement to the effect that nothing has come to the
attention of such counsel which leads them to believe that (i) the Registration Statement, at the
time it became effective under the Act (including the information deemed to be a part of the
Registration Statement at the time it became effective pursuant to Rules 430A, 430B or 430C under
the Act) and as of the Closing Date or the Option Closing Date, as the case may be, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, (ii) the
General Disclosure Package, as of the Applicable Time, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and (iii) the Prospectus, or
any supplement thereto, on the date it was filed pursuant to the Rules and Regulations and as of
the Closing Date or the Option Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading (except that such counsel need express no view as to financial statements and schedules
and other financial data therein). With respect to such statement, Bullivant/Xxxxxx/Xxxxxx P.C.
may state that their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(c) The Representatives shall have received on the Closing Date or the Option Closing Date,
as the case may be, the opinion of Xxxxxxxxx, Genshlea & Chediak, a law corporation, special
intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date,
as the case may be, addressed to the Underwriters (and stating that it may be relied upon by
counsel to the Underwriters) to the effect that:
(i) As to the statements in the Annual Report on Form 10-K, incorporated by reference into the
Registration Statement and Prospectus under the caption “Business — Patents and Proprietary
Rights,” nothing has come to such counsel’s attention which causes such counsel to believe that the
above-mentioned sections of the Registration Statement and the Prospectus and any amendment or
supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became
effective and at all times subsequent thereto up to and on the Closing Date and on any Option
Closing Date, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(ii) With the exception of review by the United States Patent and Trademark Office or similar
non-U.S. authority review of pending applications, such counsel knows of no material action, suit,
claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights,
copyrights, collaborative research, licenses or royalty arrangements or agreements or trade
secrets, know-how or proprietary techniques, including processes and substances, owned by or
affecting the business or operations of the Company which are pending or threatened against the
Company or any of its officers or directors.
(iii) To such counsel’s knowledge, except as set forth on Schedule A or Schedule B to such
opinion, (i) the Company is listed in the records of the United States Patent and Trademark Office
as the holder of record of the patents listed on Schedule A hereto (the “Patents”) and each of the
applications listed on Schedule B hereto (the “Applications”), and (ii) there are no claims of
third parties to any ownership interest or lien with respect to any of the Patents or Applications.
Such counsel is not aware of any material defect in form in the preparation or filing of the
Applications on behalf of the Company. To such counsel’s knowledge, the Applications are being
pursued by the Company. To such counsel’s knowledge, except as indicated on Schedule A or Schedule
B, the Company owns as its sole property the Patents and pending Applications.
(iv) The Company is listed in the records of the appropriate foreign offices as the sole
holder of record of the foreign patents listed on a schedule to such opinion (the
“Foreign Patents”) and each of the applications listed on a schedule to such opinion (the “Foreign
Applications”). Such counsel knows of no claims of third parties to any ownership interest or lien
with respect to the Foreign Patents or Foreign Applications. Such counsel is not aware of any
material defect of form in the preparation or filing of the Foreign Applications on behalf of the
Company. To the knowledge of such counsel, the Foreign Applications are being pursued by the
Company. To the knowledge of such counsel, the Company owns as its sole property the Foreign
Patents and pending Foreign Applications.
(v) Such counsel knows of no reason why the Patents or Foreign Patents are not valid as
issued. Such counsel has no knowledge of any reason why any patent that may issue from a pending
Application or Foreign Application would not be valid.
(d) The Representatives shall have received on the Closing Date or the Option Closing Date,
as the case may be, the opinion of Bullivant/Xxxxxx/Xxxxxx P.C., special regulatory counsel for the
Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the Underwriters) to the effect
that:
(i) Such counsel is familiar with the United States Federal Food, Drug, and Cosmetic Act (the
“FFDC Act”) set forth at 21 U.S.C. § 201 et seq., regulations promulgated the authority of the FFDC
Act, and the enforcement of the FFDC Act and its regulations by the United States Food and Drug
Administration (the “FDA”) (for purposes of this opinion referred to collectively as the “FDA
Laws”) and has reviewed the information in the Annual Report on Form 10-K incorporated by reference
into the Registration Statement and the Prospectus under the captions “Factors Affecting Future
Results — Our Business is Heavily Regulated, Resulting in Increased Costs of Operations and Delays
in Product Sales,” and “Business — Government Regulation” (collectively, the “Regulatory
Portion”);
(ii) In such counsel’s opinion, insofar as the statements in the Regulatory Portion
constitute summaries of the FDA Laws, the Regulatory Portion is accurate in all material respects;
(iii) The Company has obtained such licenses, permits, approvals, and authorizations required
by the FDA that are necessary for the conduct of the business of the Company as it is currently
conducted and described in or incorporated into the Registration Statement and the Prospectus and
to our knowledge such authorizations are in effect;
(iv) Counsel is not aware of any lawsuit or regulatory proceeding, pending or threatened,
brought by or before the FDA, in which the Company is or would be the defendant or respondent, nor
is counsel aware of any adverse judgment, decree or order currently in effect that has been issued
by the FDA against the Company; and
(v) Nothing has come to the attention of such counsel which caused them to believe that the
Regulatory Portion of the Registration Statement and the Prospectus (and any similar section or
information contained in the General Disclosure Package) and any amendment
or supplement thereto made available and reviewed by such counsel, at the time the Registration
Statement became effective and at all times subsequent thereto up to and on the Closing Date and on
any Option Closing Date, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(e) The Representatives shall have received from Xxxxxx Xxxxxx LLP, counsel for the
Underwriters, an opinion dated the Closing Date or the Option Closing Date, as the case may be, in
such form as shall be agreed to with the Underwriters.
(f) The Representatives shall have received at or prior to the Closing Date from Xxxxxx
Xxxxxx LLP a memorandum or summary, in form and substance satisfactory to the Representatives, with
respect to the qualification for offering and sale by the Underwriters of the Shares under the
State securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably have
designated to the Company.
(g) You shall have received, on each of the date hereof, the Closing Date and, if applicable,
the Option Closing Date, a letter dated the date hereof, the Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to you, of Ernst & Young LLP
confirming that they are an independent registered public accounting firm with respect to the
Company and the Subsidiaries within the meaning of the Act and the applicable Rules and Regulations
and the PCAOB and stating that in their opinion the financial statements and schedules examined by
them and included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related Rules and Regulations; and containing such other
statements and information as is ordinarily included in accountants’ “comfort letters” to
Underwriters with respect to the financial statements and certain financial and statistical
information contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(h) The Representatives shall have received on the Closing Date and, if applicable, the
Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive
Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date
or the Option Closing Date, as the case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement or no order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been
issued, and no proceedings for such purpose or pursuant to Section 8A of the Act have been taken or
are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained in Section 1 hereof are true
and correct as of the Closing Date or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules 424, 430A, 430B or 430C under
the Act have been made as and when required by such rules;
(iv) He or she has carefully examined the General Disclosure Package and any individual
Limited Use Free Writing Prospectus and, in his or her opinion, as of the Applicable Time, the
statements contained in the General Disclosure Package and any individual Limited Use Free Writing
Prospectus did not contain any untrue statement of a material fact, and such General Disclosure
Package and any individual Limited Use Free Writing Prospectus, when considered together with the
General Disclosure Package, did not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
(v) He or she has carefully examined the Registration Statement and, in his or her opinion,
as of the effective date of the Registration Statement, the Registration Statement and any
amendments thereto did not contain any untrue statement of a material fact and did not omit to
state a material fact necessary in order to make the statements therein not misleading, and since
the effective date of the Registration Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus which has not been so set forth in such
supplement or amendment;
(vi) He or she has carefully examined the Prospectus and, in his or her opinion, as of its
date and the Closing Date or the Option Closing Date, as the case may be, the Prospectus and any
amendments and supplements thereto did not contain any untrue statement of a material fact and did
not omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
(vii) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and Prospectus, there has not been any material adverse
change or any development involving a prospective material adverse change in or affecting the
business, management, properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business.
(i) The Firm Shares and Option Shares, if any, have been approved for designation upon notice
of issuance on the Nasdaq Capital Market.
(j) The Lockup Agreements described in Section 4(j) are in full force and effect.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects satisfactory to the
Representatives and to Xxxxxx Xxxxxx LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representatives by notifying the Company of
such termination in writing or by telegram at or prior to the Closing Date or the Option Closing
Date, as the case may be.
In such event, the Company and the Underwriters shall not be under any obligation to each
other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions that at the Closing
Date or the Option Closing Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or proceedings therefor initiated
or threatened.
8. Indemnification.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which such
Underwriter or any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus the Prospectus or 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 in the light
of the circumstances under which they were made; 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, or omission
or alleged omission made in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by or through the
Representatives 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 Section 13 herein; and
(2) to reimburse each Underwriter and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event that it is finally
judicially
determined that the Underwriters were not entitled to receive payments for legal and other
expenses pursuant to this subparagraph, the Underwriters will
promptly return all sums that
had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer, or controlling person
may become subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter will be liable in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by or through the
Representatives 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 Section
13 herein. This indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to this Section 8, such
person (the “indemnified party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 8(a)
or (b) shall be available to any party who shall fail to give notice as provided in this Section
8(c) if the party to whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a) or (b). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the fees and expenses
of the counsel retained by the indemnified party in the event (i) the indemnifying party and the
indemnified party
shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them or (iii) the indemnifying party shall have
failed to assume the defense and employ counsel acceptable to the indemnified party within a
reasonable period of time after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all
such indemnified parties. Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the case of parties indemnified pursuant
to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or not any indemnified party
is an actual or potential party to such claim, action or proceeding) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.
(d) To the extent the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) 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 Shares. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits 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 (or actions or proceedings in respect thereof), 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, in each case as set
forth in the table on the cover page of the Prospectus. 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 on the one hand or the Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(d)
shall be deemed to include 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 subsection (d), (i) no Underwriter shall be required to contribute any amount
in excess of the underwriting discounts and commissions applicable to the Shares purchased by such
Underwriter and (ii) 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 Section 8(d) to
contribute are several in proportion to their respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any supplement or amendment thereto, each party
against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction of
any court having jurisdiction over any other contributing party, agrees that process issuing from
such court may be served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an additional defendant in
any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its directors or officers or
any persons controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to any Underwriter, or any person
controlling any Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
9. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case may be, any Underwriter shall
fail to purchase and pay for the portion of the Shares which such Underwriter has agreed to
purchase and pay for on such date (otherwise than by reason of any default on the part of the
Company), you, as Representatives of the Underwriters, shall use your reasonable efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from
the Company such amounts as may be agreed upon and upon the terms set forth herein, the Shares
which the defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other Underwriters, or any others,
to purchase the Shares agreed to be purchased by the defaulting Underwriter or Underwriters, then
(a) if the aggregate number of shares with respect to which such default shall occur does not
exceed 10% of the Shares to be purchased on the Closing Date or the Option Closing date, as the
case may be, the other Underwriters shall be obligated, severally, in proportion to the respective
numbers of Shares which they are obligated to purchase hereunder, to purchase the Shares which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of
shares of Shares with respect to which such default shall occur exceeds 10% of the Shares to be
purchased on the Closing Date or the Option Closing Date, as the case may be, the Company or you as
the Representatives of the Underwriters will have the right, by written notice given within the
next 36-hour period to the parties to this Agreement, to terminate this Agreement without liability
on the part of the non-defaulting Underwriters or of the Company except to the extent provided in
Sections 5 and 8 hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9, the Closing Date or Option Closing Date, as the case may be, may be
postponed for such period, not exceeding seven days, as you, as Representatives, may determine in
order that the required changes in the Registration Statement, the General Disclosure Package or in
the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter”
includes any person substituted for a defaulting Underwriter. Any action taken under this Section
9 shall not relieve any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: (a) if to the
Underwriters, to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Syndicate Manager, with a copy to Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, and with a copy to Xxxxxx Xxxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, Esq., and (b) if to
the Company, to ThermoGenesis Corp., 0000 Xxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxxxxxxxx, Attention:
Xxxxxx X. Xxxxxx, Chief Executive Officer, with a copy to Bullivant/Xxxxxx/Xxxxxx P.C., 0000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.
11. Termination.
This Agreement may be terminated by you by notice to the Company (a) at any time prior to the
Closing Date or any Option Closing Date (if different from the Closing Date and then only as to
Option Shares) if any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package and the
Prospectus, any material adverse change or any development involving a prospective material adverse
change in or affecting the earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, (ii) any outbreak or escalation
of hostilities or declaration of war or national emergency or other national or international
calamity or crisis or change in economic or political conditions if the effect of such
outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial markets
of the United States would, in your judgment, make it impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares, or (iii) suspension of trading in
securities generally on the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market or the Nasdaq Capital Market or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or order of any court or
other governmental authority which in your opinion materially and adversely affects or may
materially and adversely affect the business or operations of the Company, (v) the declaration of a
banking moratorium by United States or New York State authorities, (vi) any downgrading, or
placement on any watch list for possible downgrading, in the rating of any of the Company’s debt
securities by any “nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Exchange Act); (vii) the suspension of trading of the Company’s common
stock by the Nasdaq Capital Market, the Commission, or any other governmental authority or, (viii)
the taking of any action by any governmental body or agency in respect of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect on the securities markets in
the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters and the Company
and their respective successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign merely because of such purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only information furnished or
to be furnished by any Underwriter to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus consists of the third
and ninth through fourteenth paragraphs under the caption “Underwriting” in the Prospectus.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained in this Agreement and
the representations, warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its
directors or officers, and (c) delivery of and payment for the Shares under this Agreement.
The Company acknowledges and agrees that each Underwriter in providing investment banking
services to the Company in connection with the offering, including in acting pursuant to the terms
of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and
the Company does not intend such Underwriter to act in any capacity other than as an independent
contractor, including as a fiduciary or in any other position of higher trust.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York, including, without limitation, Section 5-1401 of the New York General Obligations Law.
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||
| THERMOGENESIS CORP. | ||||
| By | ||||
| Xxxxxx X. Xxxxxx | ||||
| Chief Executive Officer | ||||
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
As Representatives of the several
Underwriters listed on Schedule I
By:
|
Deutsche Bank Securities Inc. | |||
By |
||||
| Authorized Officer | ||||
By |
||||
| Authorized Officer |
SCHEDULE I
Schedule of Underwriters
| Number of Firm Shares | ||
| Underwriter | to be Purchased | |
Deutsche Bank Securities Inc.
|
6,200,000 | |
Xxxxxxxxx & Company, Inc.
|
1,800,000 |
SCHEDULE II
1. Number of Shares Offered : 8,000,000
2. Initial Price to Public : $4.00 per share
3. Approximate Total Net Proceeds (before Company expenses) : $30,080,000
2. Initial Price to Public : $4.00 per share
3. Approximate Total Net Proceeds (before Company expenses) : $30,080,000
SCHEDULE III
None.
EXHIBIT A
LOCK-UP AGREEMENT
January , 2006
Deutsche Bank Securities Inc.
The Other Underwriters Named in the
Underwriting Agreement (as defined below)
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Other Underwriters Named in the
Underwriting Agreement (as defined below)
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Deutsche Bank Securities Inc. and the other underwriters
named in the Underwriting Agreement, as representatives (the “Representatives”) of the several
underwriters (the “Underwriters”), propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with ThermoGenesis Corp. (the “Company”), providing for the public
offering by the Underwriters, including the Representatives, of common stock, par value $0.001 (the
“Common Stock”), of the Company (the “Public Offering”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned agrees that, without the prior
written consent of the Representatives, the undersigned will not, directly or indirectly, offer,
sell, pledge, contract to sell (including any short sale), grant any option to purchase or
otherwise dispose of any shares of Common Stock (including, without limitation, shares of Common
Stock of the Company which may be deemed to be beneficially owned by the undersigned on the date
hereof in accordance with the rules and regulations of the Securities and Exchange Commission,
shares of Common Stock which may be issued upon exercise of a stock option or warrant and any other
security convertible into or exchangeable for Common Stock) or enter into any Hedging Transaction
(as defined below) relating to the Common Stock (each of the foregoing referred to as a
“Disposition”) during the period specified in the following paragraph (the “Lock-Up Period”). The
foregoing restriction is expressly intended to preclude the undersigned from engaging in any
Hedging
Transaction or other transaction which is designed to or reasonably expected to lead to or
result in a Disposition during the Lock-Up Period even if the securities would be disposed of by someone other
than the undersigned. “Hedging Transaction” means any short sale (whether or not against the box)
or any purchase, sale or grant of any right (including, without limitation, any put or call option)
with respect to any security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from the Common Stock.
The initial Lock-Up Period will commence on the date hereof and continue until, and include,
the date that is 90 days after the date of the final prospectus relating to the Public Offering
(the “Initial Lock-Up Period”); provided, however, that if (1) during the last 17 days of the
Initial Lock-Up Period, (A) the Company releases earnings results or (B) material news or a
material event relating to the Company occurs, or (2) prior to the expiration of the Initial
Lock-Up Period, the Company announces that it will release earnings results during the 16-day
period following the last day of the Initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18-day period beginning on the date of the release of
the earnings results or the occurrence of material news or a material event relating to the
Company, as the case may be, unless the Representatives waive, in writing, such extension.
Notwithstanding the foregoing, the undersigned may transfer (a) shares of Common Stock
acquired in open market transactions by the undersigned after the completion of the Public
Offering, and (b) any or all of the shares of Common Stock or other Company securities if the
transfer is by (i) gift, will or intestacy, or (ii) distribution to partners, members or
shareholders of the undersigned; provided, however, that in the case of a transfer pursuant to
clause (b) above, it shall be a condition to the transfer that the transferee execute an agreement
stating that the transferee is receiving and holding the securities subject to the provisions of
this Lock-Up Agreement.
The undersigned agrees that the Company may, and that the undersigned will, (i) with respect
to any shares of Common Stock or other Company securities for which the undersigned is the record
holder, cause the transfer agent for the Company to note stop transfer instructions with respect to
such securities on the transfer books and records of the Company and (ii) with respect to any
shares of Common Stock or other Company securities for which the undersigned is the beneficial
holder but not the record holder, cause the record holder of such securities to cause the transfer
agent for the Company to note stop transfer instructions with respect to such securities on the
transfer books and records of the Company.
In addition, the undersigned hereby waives any and all notice requirements and rights with
respect to registration of securities pursuant to any agreement, understanding or otherwise setting
forth the terms of any security of the Company held by the undersigned, including any registration
rights agreement to which the undersigned and the Company may be party; provided that such waiver
shall apply only to the proposed Public Offering, and any other action taken by the Company in
connection with the proposed Public Offering.
The undersigned hereby agrees that, to the extent that the terms of this Lock-Up Agreement
conflict with or are in any way inconsistent with any registration rights agreement to which the
undersigned and the Company may be a party, this Lock-Up Agreement supersedes such registration
rights agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and any obligations of the
undersigned shall be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Notwithstanding anything herein to the contrary, if the closing of the Public Offering has not
occurred prior to April 15, 2006, this agreement shall be of no further force or effect.
| Signature: | ||||
| Print Name: | ||||
Number of shares owned |
||||
| subject to warrants, options or convertible securities: | Certificate numbers: | |||
