4,000,000 Shares QUIDEL CORPORATION Common Stock ($0.001 par value per Share) UNDERWRITING AGREEMENT
Exhibit 1.1
4,000,000 Shares
QUIDEL CORPORATION
Common Stock
($0.001 par value per Share)
January 6, 2011
X.X. XXXXXX SECURITIES LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a shelf registration statement on Form S-3 (File No. 333-169136), which contains a
form of prospectus (the “Base Prospectus”) to be used in connection with the public offering and
sale of the Offered Shares. Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it was declared effective by the
Commission under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), including all documents incorporated or deemed to
be incorporated by reference therein and any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act or the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange
Act”), is called the “Registration Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the
Offered Shares is called the “Rule 462(b) Registration Statement,” and from and after the date and
time of filing of the Rule 462(b) Registration Statement the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. The preliminary prospectus supplement dated
January 5, 2011 describing the Offered Shares and the offering thereof, together with the Base
Prospectus, is called the “Preliminary Prospectus,” and the Preliminary Prospectus and any other
preliminary prospectus supplement to the Base Prospectus that describes the Offered Shares and the
offering thereof and is used prior to the filing of the Prospectus (as defined below), together
with the Base Prospectus, is called a “preliminary prospectus.” As used herein, the term
“Prospectus” shall mean the final prospectus supplement to the Base Prospectus that describes the
Offered Shares and the offering thereof (the “Final Prospectus Supplement”), together with the
Base Prospectus, in the form first made available to the Underwriter by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act. As used herein, “Applicable
Time” is 9:15 a.m. (New York time) on January 6, 2011. As used herein, “free writing prospectus”
has the meaning set forth in Rule 405 under the Securities Act, and “Time of Sale Prospectus” means
the preliminary prospectus, as amended or supplemented immediately prior to the Applicable Time,
together with the free writing prospectuses, if any, identified in Schedule B hereto, each “road
show” (as defined in Rule 433 under the Securities Act), if any, agreed to between the Company and
the Underwriter, related to the offering of the Offered Shares contemplated hereby that is a
“written communication” (as defined in Rule 405 under the Securities Act) and the pricing
information set forth in Schedule C hereto. As used herein, the terms “Registration Statement,”
“Rule 462(b) Registration Statement”, “Preliminary Prospectus” “preliminary prospectus,” “Base
Prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents incorporated
and deemed to be incorporated by reference therein. All references in this Agreement to financial
statements and schedules and other information which are “contained,” “included” or “stated” in the
Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any
preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement, the Rule 462(b) Registration Statement,
the Preliminary Prospectus, any other preliminary prospectus, the Base Prospectus, the Time of Sale
Prospectus or the Prospectus, as the case may be, shall be deemed to mean and include the filing of
any document under the Exchange Act which is or is deemed to be incorporated by reference in the
Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any
preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the
case may be. All references in this Agreement to the Registration Statement, the 462(b)
Registration Statement, the Preliminary Prospectus, any other preliminary prospectus, the Base
Prospectus or the Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System or any successor thereto (“XXXXX”) and the Prospectus shall be deemed
to include the “electronic Prospectus” provided for use in connection with the offering of the
Offered Shares as contemplated by Section 3(n) of this Agreement.
In the event that the Company has only one subsidiary, then all references herein to
“subsidiaries” of the Company shall be deemed to refer to such single subsidiary, mutatis
mutandis. References to “subsidiaries” in Section 1 include only subsidiaries of the
Company that have active operations or more than de minimis assets or liabilities.
The Company hereby confirms its agreements with the Underwriter as follows:
Section 1. Representations and Warranties of the Company. The Company hereby represents,
warrants and covenants to the Underwriter, as of the date of this Agreement, as of the First
Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereafter defined), if
any, and covenants with the Underwriter, as follows:
(a) Compliance with Registration Requirements. The Registration Statement and any Rule
462(b) Registration Statement have been declared effective by the Commission under the Securities
Act. The Company has complied, to the Commission’s satisfaction, with all requests of the
Commission for additional or supplemental information. No stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no
proceedings for such
purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied or will comply in all
material respects with the Securities Act and, if filed by electronic transmission pursuant to
XXXXX (except as may be permitted by Regulation S-T under the Securities Act), was identical to the
copy thereof delivered by the Company to the Underwriter for use in connection with the offer and
sale of the Offered Shares. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the time it became effective and at all
subsequent times that a prospectus is required by the Securities Act (including, without
limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Offered Shares
(but in any event through and including the First Closing Date and the latest Option Closing Date,
if any), complied and will comply in all material respects with the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. As of the
Applicable Time, the Time of Sale Prospectus (including any preliminary prospectus wrapper) did
not, and at the time of each sale of the Offered Shares and at the First Closing Date (as
hereinafter defined in Section 2), the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Prospectus (including any Prospectus wrapper), as
amended or supplemented, as of its date and at all subsequent times that a prospectus is required
by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in
connection with sales of the Offered Shares (but in any event through and including the First
Closing Date and the latest Option Closing Date, if any), did not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the three immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment thereto, or the Prospectus or the Time of Sale
Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in writing by the Underwriter
expressly for use therein, it being understood and agreed that the only such information furnished
by the Underwriter to the Company consists of the information described in Section 9(b) below.
There are no contracts or other documents required to be described in the Time of Sale Prospectus
or the Prospectus or to be filed as exhibits to the Registration Statement which have not been
described or filed as required.
The Company is not an “ineligible issuer” in connection with the offering of the Offered
Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or
will be, filed with the Commission in accordance with the requirements of the Securities Act. Each
free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used or referred to by the Company
complies or will comply in all material respects with the requirements of Rule 433 under the
Securities Act including timely filing with the Commission or retention where required and
legending, and each such free writing prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered Shares did not, does not and
will not include any information that conflicted, conflicts with or will conflict with the
information contained in the Registration Statement, the Prospectus or any preliminary prospectus,
including any document incorporated by reference therein. Except for the free writing
prospectuses, if any, identified in Schedule B hereto, and electronic road shows, if any, furnished
to you before first use, the Company has not prepared, used or referred to, and will not, without
your prior consent, prepare, use or refer to, any free writing prospectus.
(b) Offering Materials Furnished to Underwriter. The Company has delivered to the
Underwriter, or in the case of the Prospectus, will deliver, two complete copies of the
Registration Statement, each amendment thereto and any Rule 462(b) Registration Statement
(including exhibits thereto) and of each consent and certificate of experts filed as a part
thereof, and conformed copies of the Registration Statement, each amendment thereto and any Rule
462(b) Registration Statement (without exhibits) and preliminary prospectuses, the Time of Sale
Prospectus, the Prospectus, as amended or supplemented, and any free writing prospectus reviewed
and consented to by the Underwriter, in such quantities and at such places as the Underwriter has
reasonably requested.
(c) Distribution of Offering Material By the Company. The Company has not distributed and
will not distribute, prior to the later of (i) the expiration or termination of the option granted
to the Underwriter in Section 2 and (ii) the completion of the Underwriter’s distribution of the
Offered Shares, any offering material in connection with the offering and sale of the Offered
Shares other than a preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free
writing prospectus reviewed and consented to by the Underwriter, or the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(f) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.
(g) No Material Adverse Change. Except as otherwise disclosed in the Time of Sale
Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale
Prospectus: (i) there has been no material adverse change, or any development that would
reasonably be expected to result in a material adverse change, in the business, properties,
management, financial position, stockholders’ equity or results of operations, whether or not
arising from transactions in the ordinary course of business, of the Company and its subsidiaries,
considered as one entity (any such change is called a “Material Adverse Change”); (ii) the Company
and its subsidiaries, considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business; and (iii) there has
been no dividend or distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on any class of
capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of
capital stock, other than repurchases to satisfy tax withholding obligations arising as a result of
the exercise of outstanding options or the vesting of restricted stock units, restricted stock or
deferred stock units, in each case issued pursuant to employee and director equity incentive plans.
(h) Independent Accountants. Ernst & Young LLP and PricewaterhouseCoopers LLP, who have
expressed their opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules filed with the Commission as
a part of the Registration Statement and included in the Preliminary Prospectus, the Prospectus and
Time of
Sale Prospectus (each, an “Applicable Prospectus” and collectively, the “Applicable
Prospectuses”), are each (i) independent public or certified public accountants as required by the
Securities Act and the Exchange Act, (ii) in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X and (iii) a registered public
accounting firm as defined by the Public Company Accounting Oversight Board (the “PCAOB”) whose
registration has not been suspended or revoked and who has not requested such registration to be
withdrawn.
(j) Company’s Accounting System. The Company and each of its subsidiaries make and keep
accurate books and records and maintain a system of internal accounting controls sufficient to
provide reasonable assurance 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 generally accepted accounting principles as
applied in the United States 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. Since December 31, 2009, (i) there has
not been and is no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (ii) there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(k) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company
and its subsidiaries has been duly incorporated or organized, as the case may be, and is validly
existing as a corporation, partnership or limited liability company, as applicable, in good
standing under
the laws of the jurisdiction of its incorporation or organization and has the power and
authority (corporate or other) to own, lease and operate its properties and to conduct its business
as described in each Applicable Prospectus and, in the case of the Company, to enter into and
perform its obligations under this Agreement. Each of the Company and each subsidiary is duly
qualified as a foreign corporation, partnership or limited liability company, as applicable, to
transact business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except where failure to be so qualified and in good standing would not reasonably be expected to
result in a Material Adverse Change. All of the issued and outstanding capital stock or other
equity or ownership interests of each subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim, except
for the pledge of equity securities of certain subsidiaries of the Company under the Company’s
credit facility described in each Applicable Prospectus. The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than (i) any
subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2009 and (ii) such other entities omitted from such Exhibit 21 which, when such
omitted entities are considered in the aggregate as a single subsidiary, would not constitute a
“significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X.
(l) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in each Applicable Prospectus (other than for
subsequent issuances, if any, pursuant to employee benefit plans described in each Applicable
Prospectus or upon the exercise of outstanding options or warrants described in each Applicable
Prospectus). The Shares (including the Offered Shares) conform in all material respects to the
description thereof contained in the Time of Sale Prospectus. All of the issued and outstanding
Shares have been duly authorized and validly issued, are fully paid and nonassessable and have been
issued in compliance with federal and state securities laws. None of the outstanding Shares was
issued in violation of any preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of
the Company or any of its subsidiaries other than those described in each Applicable Prospectus.
All preemptive rights and rights of first refusal to purchase the Offered Shares and any rights to
purchase from the Company any capital stock of the Company as a result of the offer or sale of the
Offered Shares have been properly waived by or on behalf of all holders of such rights. The
description of the Company’s stock option, stock bonus and other stock plans or arrangements, and
the options or other rights granted thereunder, set forth in each Applicable Prospectus accurately
and fairly presents the information required to be described therein with respect to such plans,
arrangements, options and rights. All grants of options to acquire Shares (each, a “Company Stock
Option”) were validly issued and approved by the Board of Directors of the Company, a committee
thereof or an individual with authority duly delegated by the Board of Directors of the Company or
a committee thereof. Grants of Company Stock Options were (i) made in material compliance with all
applicable laws and (ii) as a whole, made in material compliance with the terms of the plans under
which such Company Stock Options were issued. There is no and has been no policy or practice of the
Company to coordinate the grant of Company Stock Options with the release or other public
announcement of material information regarding the Company or its results of operations or
prospects. Except as described in the Time of Sale Prospectus and the Prospectus, the Company has
not sold or issued any Shares during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act other
than Shares issued pursuant to employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
(m) Stock Exchange Listing. The Shares are registered pursuant to Section 12(b) of the
Exchange Act and are listed on the Nasdaq Global Market, and the Company has taken no action
designed to, or likely to have the effect of, terminating the registration of the Shares under the
Exchange Act or delisting the Shares from the Nasdaq Global Market, nor has the Company received
any notification that the Commission or the Nasdaq Global Market is contemplating terminating such
registration or listing.
(o) No Material Actions or Proceedings. There are no legal or governmental actions, suits or
proceedings pending or, to the Company’s knowledge, threatened (i) against the Company or any of
its subsidiaries, (ii) which have as the subject thereof any officer or director of (in such
capacity), or property owned or leased by, the Company or any of its subsidiaries or (iii) relating
to environmental or discrimination matters, where in any such case (A) there is a reasonable
possibility that such action, suit or proceeding would be determined adversely to the Company, such
subsidiary or such officer or director, (B) any such action, suit or proceeding, if so determined
adversely, would reasonably be expected to result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this Agreement, (C) any such action, suit or
proceeding is or would be material in the context of the sale of Shares or (D) any such action,
suit or proceeding is required under the Securities Act to be described in the Registration
Statement or any Applicable Prospectus that is not so described in the Registration Statement or
any Applicable Prospectus. No material labor dispute with the employees
of the Company or any of its subsidiaries, or to the knowledge of the Company, with the
employees of any principal supplier, manufacturer, customer or contractor of the Company, exists
or, to the Company’s knowledge, is threatened.
(p) Intellectual Property Rights. The Company and its subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade
secrets and other similar rights (collectively, “Intellectual Property Rights”) reasonably
necessary to conduct their businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse Change. Neither the Company
nor any of its subsidiaries has received, or has any reason to believe that it will receive, any
notice of infringement or conflict with asserted Intellectual Property Rights of others that would
reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change.
Except as would not reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Change, (A) there is no infringement, misappropriation or violation by third
parties of any of the Intellectual Property Rights owned by the Company; (B) there is no pending
or, to the knowledge of the Company and its subsidiaries, threatened action, suit, proceeding or
claim by others challenging the rights of the Company and its subsidiaries in or to any such
Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (C) the Intellectual Property Rights owned by the Company and its
subsidiaries and the Intellectual Property Rights licensed to the Company and its subsidiaries have
not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in
part, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such Intellectual Property Rights, and
the Company is unaware of any facts which would form a reasonable basis for any such claim; (D)
there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or its subsidiaries infringe, misappropriate or otherwise violate any
Intellectual Property Rights or other proprietary rights of others, the Company and its
subsidiaries have not received any notice of such claim and the Company is unaware of any other
facts which would form a reasonable basis for any such claim; (E) to the Company’s knowledge, no
employee of the Company or a subsidiary of the Company is in violation of any term of any
employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or
with a former employer where the basis of such violation relates to such employee’s employment with
the Company or a subsidiary of the Company, or actions undertaken by the employee while employed
with the Company or a subsidiary of the Company, and (F) none of the technology employed by the
Company or any of its subsidiaries has been obtained or is being used by the Company or any of its
subsidiaries in violation of any contractual obligation binding on the Company or any of its
subsidiaries or, to the Company’s knowledge, any of its or its subsidiaries’ officers, directors or
employees or otherwise in violation of the rights of any persons. The Company is not a party to or
bound by any options, licenses or agreements with respect to the Intellectual Property Rights of
any other person or entity that are required to be set forth in the Prospectus and are not
described therein. The Time of Sale Prospectus contains in all material respects the same
description of the matters set forth in the preceding sentence contained in the Prospectus.
(q) All Necessary Permits, etc. Except, singly or in the aggregate, as would not reasonably
be expected to result in a Material Adverse Change, (A) the Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses,
and (B) neither the Company nor any subsidiary has received, or has any reason to believe that it
will receive, any notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit.
(r) Title to Properties. The Company and each of its subsidiaries has good and marketable
title to all of the real and personal property and other assets reflected as owned in the financial
statements referred to in Section 1(i) above (or elsewhere in any Applicable Prospectus), in each
case free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse
claims and other defects, except (A) as set forth in each Applicable Prospectus, or (B) such as do
not materially and adversely affect the value of such property and do not materially interfere with
the use made or proposed to be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under lease by the Company or any
subsidiary are held under valid and enforceable leases, with such exceptions as are not material
and do not materially interfere with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such subsidiary.
(s) Tax Law Compliance. The Company and its consolidated subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns or have properly requested
extensions thereof and have paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any of them except as
may be being contested in good faith and by appropriate proceedings. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred to in Section 1(i)
above in respect of all federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its consolidated subsidiaries has not been finally
determined.
(t) Company Not an “Investment Company”. The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
The Company is not, and will not be, either after receipt of payment for the Offered Shares or
after the application of the proceeds therefrom as described under “Use of Proceeds” in each
Applicable Prospectus, an “investment company” within the meaning of Investment Company Act.
(u) Insurance. Each of the Company and its subsidiaries are insured by recognized,
financially sound and reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are, in the reasonable opinion of the Company, adequate and
customary for their businesses including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries against theft, damage, destruction,
acts of vandalism and earthquakes and policies covering the Company and its subsidiaries for
product liability claims and clinical trial liability claims. The Company has no reason to believe
that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would not
result in a Material Adverse Change. Neither the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
(v) No Price Stabilization or Manipulation; Compliance with Regulation M. The Company has
not taken, directly or indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of the Shares or any other “reference
security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) whether
to facilitate the sale or resale of the Offered Shares or otherwise, and has taken no action which
would directly or indirectly violate Regulation M. The Company acknowledges that the Underwriter
may engage in passive market making transactions in the Offered Shares on the Nasdaq Global Market
in accordance with Regulation M and makes no representation hereby as to actions taken by the
Underwriter.
(w) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company or any of its subsidiaries or any other person required to be
described
in each Applicable Prospectus which have not been described as required. The Time of Sale
Prospectus contains in all material respects the same description of the matters set forth in the
preceding sentence contained in the Prospectus.
(x) S-3 Eligibility. At the time the Registration Statement was originally declared
effective, the Company met the then applicable requirements for use of Form S-3 under the
Securities Act. The Company is eligible to offer and sell securities under the Registration
Statement (including the offer and sale of the Offered Shares) without reliance on General
Instruction I.B.6 of Form S-3. The Company meets the requirements for use of Form S-3 under the
Securities Act specified in FINRA Rule 5110(b)(7)(C)(i).
(z) FINRA Matters. All of the information provided to the Underwriter or to counsel for the
Underwriter by the Company, and to the knowledge of the Company any such information provided by
its officers and directors and the holders of any securities (debt or equity) or options to acquire
any securities of the Company, in connection with letters, filings or other supplemental
information provided to FINRA in connection with the offering of the Offered Shares under FINRA
Rule 5110 or 5121 is true, complete and correct in all material respects. Neither the Company nor,
to the knowledge of the Company, any of its affiliates (within the meaning of FINRA Rule
5121(f)(1)) directly or indirectly controls, is controlled by, or is under common control with, or
is an associated person (within the meaning of Article I, Section 1(rr) of the By-laws of FINRA)
of, any member firm of FINRA.
(aa) Parties to Lock-Up Agreements. Each of the Company’s directors and executive officers
listed in Exhibit D has executed and delivered to X.X. Xxxxxx a lock-up agreement in the
form of Exhibit E hereto. Exhibit D hereto contains a true, complete and correct
list of all directors and executive officers of the Company as of the date hereof. If any
additional persons shall become directors or executive officers of the Company prior to the end of
the Company Lock-up Period (as defined below), the Company shall cause each such person, prior to
or contemporaneously with their appointment or election as a director or executive officer of the
Company, to execute and deliver to X.X. Xxxxxx an agreement in the form attached hereto as
Exhibit E.
(bb) Statistical and Market-Related Data. The statistical, demographic and market-related
data included in the Registration Statement and each Applicable Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate or represent the Company’s good
faith estimates that are made on the basis of data derived from such sources.
(cc)
No
Unlawful Contributions or Other Payments. Neither the Company nor any of its
subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company or any
subsidiary, has made any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or of the character required to be
disclosed in the Registration Statement and each Applicable Prospectus.
(dd) Disclosure Controls and Procedures; Deficiencies in or Changes to Internal Control
Over Financial Reporting. The Company has established and maintains disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)), which (i) are designed to
ensure that material information relating to the Company, including its consolidated subsidiaries,
is made known to the Company’s principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) have been evaluated by management of the
Company for effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are
effective in all material respects to perform the functions for which they were established. Based
on the most recent evaluation of its internal control over financial reporting, the Company is not
aware of (i) any significant deficiencies or material weaknesses in the design or operation of its
internal control over financial reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report financial information or (ii) any fraud,
whether or not material, that involves management or other employees who have a significant role in
the Company’s internal control over financial reporting. The Company is not aware of any change in
its internal control over financial reporting that has occurred during its most recent fiscal
quarter that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(ee) Compliance with Environmental Laws. Except as described in each Applicable Prospectus
and except as would not, singly or in the aggregate, be reasonably expected to result in a Material
Adverse Change, (i) neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) the Company
and its subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (iii) there are no pending
or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and
(iv) there are no events or circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(ff) Periodic Review of Costs of Environmental Compliance. In the ordinary course of its
business, the Company conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has concluded that such associated costs and
liabilities would not, individually or in the aggregate, be reasonably expected to result in a
Material Adverse Change.
(gg) ERISA Compliance. The Company and its subsidiaries and any “employee benefit plan” (as
defined under the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are in
compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to the
Company or a subsidiary, any member of any group of organizations described in Sections
414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (the “Code”) of which the Company or such subsidiary is a
member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to
occur with respect to any “employee benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such “employee
benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred
or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each “employee benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification.
(hh) Brokers. There is no broker, finder or other party that is entitled to receive from the
Company any brokerage or finder’s fee or, except for the underwriting commissions and discounts
payable to the Underwriter, other fee or commission as a result of any transactions contemplated by
this Agreement.
(ii) No Outstanding Loans or Other Extensions of Credit. Since the adoption of Section 13(k)
of the Exchange Act, neither the Company nor any of its subsidiaries has extended or maintained
credit, arranged for the extension of credit, or renewed any extension of credit, in the form of a
personal loan, to or for any director or executive officer (or equivalent thereof) of the Company
and/or such subsidiary except for such extensions of credit as are expressly permitted by Section
13(k) of the Exchange Act.
(jj) Compliance with Laws. The Company has not been advised, and has no reason to believe,
that it and each of its subsidiaries are not conducting business in compliance with all applicable
laws, rules and regulations of the jurisdictions in which it is conducting business, except where
failure to be so in compliance would not reasonably be expected to result in a Material Adverse
Change. The Company has not received any FDA Form 483, notice of adverse finding, warning letter,
untitled letter or other correspondence or notice from the U.S. Food and Drug Administration or any
other governmental authority alleging or asserting noncompliance with any laws applicable to the
Company.
(kk) Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or
on behalf of the Company and its subsidiaries were and, if still pending, are being conducted in
compliance with experimental protocols, procedures and controls pursuant to accepted professional
scientific standards and all applicable laws and authorizations, including, without limitation, the
Federal Food, Drug and Cosmetic Act and the rules and regulations promulgated thereunder; the
descriptions of the results of such studies, tests and trials contained in any Applicable
Prospectus, if any, are accurate and complete in all material respects and fairly present the data
derived from such studies, tests and trials; the Company is not aware of any studies, tests or
trials, the results of which the Company believes reasonably call into question the study, test, or
trial results described or referred to in any Applicable Prospectus when viewed in the context in
which such results are described and the clinical state of development; and the Company and its
subsidiaries have not received any notices or correspondence from any applicable governmental
authority requiring the termination, suspension or material modification of any studies,
tests or preclinical or clinical trials currently being conducted by or on behalf of the
Company or its subsidiaries.
(ll) Health Care Laws. Neither the Company nor any of its subsidiaries, nor any of their
respective business operations, is in violation of any Health Care Laws (as defined below), except
as would not reasonably be expected to result in a Material Adverse Change. “Health Care Laws”
means (i) all federal and state fraud and abuse laws, including, but not limited to, the federal
Anti-Kickback Statute (42 U.S.C. §1320a-7(b)), the Xxxxx Law (42 U.S.C. §1395nn and §1395(q)), the
Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act (31 X.X.X. §0000 et
seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the exclusion laws (42 U.S.C.
§ 1320a-7), the civil monetary penalty laws (42 U.S.C. § 1320a-7a) and the regulations promulgated
pursuant to such statutes; (ii) the Health Insurance Portability and Accountability Act of 1996
(Pub. L. No. 104-191) and the Health Information Technology for Economic and Clinical Health Act of
2009, and the regulations promulgated thereunder and comparable state privacy and security laws,
(iii) Medicare (Title XVIII of the Social Security Act) and the regulations promulgated thereunder;
(iv) Medicaid (Title XIX of the Social Security Act) and the regulations promulgated thereunder;
(v) any and all federal and state anti-markup and balance billing laws and regulations promulgated
thereunder; (vi) the federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) and the
regulations promulgated pursuant thereto; (vii) the Clinical Laboratory Improvement Amendments of
1988 (Pub. L. No. 100-578) and the regulations promulgated pursuant thereto; (viii) quality, safety
and accreditation standards and requirements of all applicable state laws or regulatory bodies; and
(ix) any and all other applicable health care laws, regulations, and manual provisions, policies
and administrative guidance of any governmental authority, each of (i) through (ix) as may be
amended from time to time. Except as described in each Applicable Prospectus, the Company has not
received written notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other similar action from any governmental authority alleging that
any product, operation or activity of the Company or any subsidiary is in material violation of any
applicable Health Care Law and the Company has no knowledge that any such governmental authority
has threatened any such claim, litigation, arbitration, action, suit, investigation or proceeding.
(mm) Dividend Restrictions. Subject to compliance with applicable laws, no subsidiary of the
Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,
or from making any other distribution with respect to such subsidiary’s equity securities or from
repaying to the Company or any other subsidiary of the Company any amounts that may from time to
time become due under any loans or advances to such subsidiary from the Company or from
transferring any property or assets to the Company or to any other subsidiary.
(nn) Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries nor, to
the Company’s knowledge, any director, officer, agent, employee, affiliate or other person acting
on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that has resulted or would reasonably be expected to result in a violation of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company and its subsidiaries and, to the Company’s knowledge,
the Company’s affiliates have conducted their respective businesses in compliance with the FCPA and
have instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(oo) Money Laundering Laws. The operations of the Company and its subsidiaries are, and have
been conducted at all times, in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any
related or similar applicable rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(pp) OFAC. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge,
any director, officer, agent, employee, affiliate or person acting on behalf of the Company or any
of its subsidiaries 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 this 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.
(qq) FINRA Filing Exemption. To enable the Underwriter to rely on FINRA Rule
5110(b)(7)(C)(i), (i) the Company was subject to the requirements of Section 12 or 15(d) of the
Exchange Act and filed all the material required to be filed pursuant to Sections 13, 14 or 15(d)
for a period of at least thirty-six calendar months immediately preceding the date of this
Agreement; (ii) the Company filed in a timely manner all reports required to be filed pursuant to
Section 13, 14 or 15(d) of the Exchange Act during the twelve calendar months and any portion of a
month immediately preceding the date of this Agreement; and (iii) the aggregate market value of the
Company’s common stock held by non-affiliates as of the date of this Agreement exceeds $150
million.
Any certificate signed by any officer of the Company or any of its subsidiaries and delivered
to the Underwriter or to counsel for the Underwriter hereunder shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters covered thereby.
The Company acknowledges that the Underwriter and, for purposes of the opinions to be
delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriter, will
rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to
such reliance.
(a) The Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell
to the Underwriter an aggregate of 4,000,000 Firm Shares. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to the conditions herein
set forth, the Underwriter agrees to purchase from the Company the number of Firm Shares set forth
on Schedule A. The purchase price per Firm Share to be paid by the Underwriter to the
Company shall be $12.42675 per share (other than the Other Firm Shares, which shall be purchased at
a price of $13.15 per Other Firm Share).
(b) The First Closing Date. Delivery of certificates for the Firm Shares to be purchased by
the Underwriter and payment therefor shall be made at the offices of X.X. Xxxxxx, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (or such other place as may be agreed to by the Company and the
Underwriter) at 9:00 a.m. New York time, on January 11, 2011, or such other time and date not later
than 1:30 p.m. New York time, on January 19, 2011 as the Underwriter shall designate by notice to
the Company (the time and date of such closing are called the “First Closing Date”).
(c) The Optional Shares; Option Closing Date. In addition, on the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Company hereby grants an option to the Underwriter to purchase up
to an aggregate of 600,000 Optional Shares from the Company at the purchase price per share to be
paid by the Underwriter for the Firm Shares. The option granted hereunder is for use by the
Underwriter solely in covering any over-allotments in connection with the sale and distribution of
the Firm Shares. The option granted hereunder may be exercised at any time and from time to time
in whole or in part upon notice by the Underwriter to the Company, which notice may be given at any
time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate
number of Optional Shares as to which the Underwriter is exercising the option, (ii) the names and
denominations in which the certificates for the Optional Shares are to be registered and (iii) the
time, date and place at which such certificates will be delivered (which time and date may be
simultaneous with, but not earlier than, the First Closing Date; and in the event that such time
and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to
the time and date of delivery of certificates for the Firm Shares and such Optional Shares). Any
such time and date of delivery, if subsequent to the First Closing Date, is called an “Option
Closing Date” and shall be determined by the Underwriter and shall not be earlier than three nor
later than five full business days after delivery of such notice of exercise. The Underwriter may
cancel the option at any time prior to its expiration by giving written notice of such cancellation
to the Company.
(d) Public Offering of the Offered Shares. The Underwriter hereby advises the Company that
the Underwriter intends to offer for sale to the public, initially on the terms set forth in the
Time of Sale Prospectus and the Prospectus, the Offered Shares as soon after this Agreement has
been executed as the Underwriter, in its sole judgment, has determined is advisable and
practicable.
(e) Payment for the Offered Shares. Payment for the Offered Shares shall be made at the
First Closing Date (and, if applicable, at each Option Closing Date) by wire transfer of
immediately available funds to the order of the Company.
(g) Other Firm Shares. It is understood and agreed that the Other Firm Shares will initially
be reserved for offer and sale to the Other Firm Share Purchasers upon the terms and subject to the
conditions set forth in this Agreement and the Prospectus. Any Other Firm Shares that are not
orally confirmed for purchase by any Other Firm Share Purchaser by the end of the business day on
which this Agreement is executed or other such time established by X.X. Xxxxxx may be offered to
the public by X.X. Xxxxxx as part of the public offering contemplated hereby.
Section 3. Additional Covenants of the Company. The Company further covenants and agrees
with the Underwriter as follows:
(a) Delivery of Registration Statement, Time of Sale Prospectus and Prospectus. The Company
shall furnish to you, without charge, signed copies of the Registration Statement, any amendments
thereto and any Rule 462(b) Registration Statement (including exhibits thereto) and shall furnish
to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day
next succeeding the date of this Agreement and during the period mentioned in Section 3(e) or 3(f)
below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably request.
(b) Underwriter’s Review of Proposed Amendments and Supplements. If at any time when a
prospectus is required by the Securities Act (including, without limitation, pursuant to Rule
173(d)) to be delivered in connection with sales of the Offered Shares (but in any event through
and including the First Closing Date and the latest Option Closing Date, if any), prior to amending
or supplementing the Registration Statement (including any registration statement filed under Rule
462(b) under the Securities Act), any preliminary prospectus, the Time of Sale Prospectus or the
Prospectus (including any amendment or supplement through incorporation of any report filed under
the Exchange Act), the Company: (i) shall furnish to the Underwriter for review, a reasonable
amount of time prior to the proposed time of filing or use thereof, a copy of each such proposed
amendment or supplement, (ii) shall not file or use any such proposed amendment or supplement
without the Underwriter’s consent, and (iii) shall file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) Free Writing Prospectuses. The Company shall furnish to the Underwriter for review, a
reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each
proposed free writing prospectus or any amendment or supplement thereto to be prepared by or on
behalf of, used by, or referred to by the Company in connection with the offer and sale of the
Offered Shares and the Company shall not file, use or refer to any proposed free writing prospectus
or any amendment or supplement thereto without the Underwriter’s consent. The Company shall
furnish to the Underwriter, without charge, as many copies of any free writing prospectus prepared
by or on behalf of, or used by the Company, as the Underwriter may reasonably request. If at any
time when a prospectus is required by the Securities Act (including, without limitation, pursuant
to Rule 173(d)) to be delivered in connection with sales of the Offered Shares (but in any event if
at any time through and including the First Closing Date and the latest Option Closing Date, if
any) there occurred or occurs an event or development as a result of which any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted or would
conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company shall promptly amend or supplement such free writing
prospectus to eliminate or correct such conflict or so that the statements in such free writing
prospectus as so amended or supplemented will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at such subsequent time, not misleading, as the case may be; provided,
however, that prior to amending or supplementing any such free writing prospectus, the Company
shall furnish to the Underwriter for review, a reasonable amount of time prior to the proposed time
of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus
and the Company shall not file, use or refer to any such amended or supplemented free writing
prospectus without the Underwriter’s consent.
(d) Filing of Underwriter Free Writing Prospectuses. The Company shall not take any action
that would result in the Underwriter or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) Amendments and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is
being used to solicit offers to buy the Offered Shares at a time when the Prospectus is not yet
available to prospective purchasers and any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale
Prospectus does not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances when delivered
to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement, or if, in the opinion of counsel for the Underwriter, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable law, including the
Securities Act, the Company shall (subject to Sections 3(b) and 3(c)) forthwith prepare, file with
the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request,
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances when delivered to a prospective purchaser, not misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law including the Securities Act.
(g) Amendments and Supplements to the Prospectus and Other Securities Act Matters. If at any
time when a prospectus is required by the Securities Act (including, without limitation, pursuant
to Rule 173(d)) to be delivered in connection with sales of the Offered Shares (but in any event
through and including the First Closing Date and the latest Option Closing Date, if any), any event
shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus so
that the Prospectus does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the
Underwriter or counsel for the Underwriter it is otherwise necessary to amend or supplement the
Prospectus to comply with applicable
law, including the Securities Act, the Company agrees (subject to Section 3(b) and 3(c)) to promptly prepare, file with the Commission and furnish at its own
expense to the Underwriter and to dealers, amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading
or so that the Prospectus, as amended or supplemented, will comply with applicable law including
the Securities Act. Neither the Underwriter’s consent to, or delivery of, any such amendment or
supplement shall constitute a waiver of any of the Company’s obligations under Sections 3(b) or
(c).
(h) Blue Sky Compliance. The Company shall cooperate with all reasonable requests of the
Underwriter and counsel for the Underwriter to qualify or register the Offered Shares for sale
under (or obtain exemptions from the application of) the state securities or blue sky laws or
Canadian provincial securities laws of those jurisdictions designated by the Underwriter, shall
comply with such laws and shall continue such qualifications, registrations and exemptions in
effect so long as required for the distribution of the Offered Shares. The Company shall not be
required to qualify as a foreign corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently qualified or where it would
be subject to taxation as a foreign corporation. The Company will advise the Underwriter promptly
of the suspension of the qualification or registration of (or any such exemption relating to) the
Offered Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose of which it becomes aware, and in the event of the issuance of any
order suspending such qualification, registration or exemption, the Company shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(i) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Offered
Shares sold by it in the manner described under the caption “Use of Proceeds” in each Applicable
Prospectus.
(j) Transfer Agent. The Company shall engage and maintain, at its expense, a registrar and
transfer agent for the Shares.
(k) Earnings Statement. As soon as practicable, but in any event no later than twelve months
after the first fiscal quarter of the Company occurring after the date of this Agreement, the
Company will make generally available to its security holders and to the Underwriter an earnings
statement (which need not be audited) covering a period of at least twelve months beginning with
the first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(l) Exchange Act Compliance. The Company shall file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the
time periods required by the Exchange Act.
(m) Listing. The Company will use its best efforts to list, subject to notice of issuance,
the Offered Shares on the Nasdaq Global Market and its commercially reasonable efforts to maintain
the listing of the Shares on the Nasdaq Global Market.
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to X.X. Xxxxxx, that may be transmitted electronically by X.X. Xxxxxx to offerees and
purchasers of the Offered Shares; (ii) it shall disclose the same information as the paper Time of
Sale Prospectus, except to the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall be replaced in the electronic
Prospectus with a fair and accurate narrative description or tabular representation of such
material, as appropriate; and (iii) it shall be in or convertible into a paper format or an
electronic format, satisfactory to X.X. Xxxxxx, that will allow investors to store and have
continuously ready access to the Prospectus at any future time, without charge to investors (other
than any fee charged for subscription to the Internet as a whole and for on-line time). The
Company hereby confirms that it has included or will include in the Prospectus filed pursuant to
XXXXX or otherwise with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt of a request by an investor or his or her
representative, the Company shall transmit or cause to be transmitted promptly, without charge, a
paper copy of the Prospectus.
(o) Agreement Not to Offer or Sell Additional Shares. During the period commencing on and
including the date hereof and ending on and including the 90th day following the date of the
Prospectus (as the same may be extended as described below, the “Lock-up Period”), the Company will
not, without the prior written consent of X.X. Xxxxxx (which consent may be withheld at the sole
discretion of X.X. Xxxxxx), directly or indirectly, sell (including, without limitation, any short
sale), offer, contract or grant any option to sell, pledge, transfer or establish an open “put
equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise
dispose of or transfer, or announce the offering of, or file any registration statement under the
Securities Act in respect of, any Shares, options, rights or warrants to acquire Shares or
securities exchangeable or exercisable for or convertible into Shares (other than as contemplated
by this Agreement with respect to the Offered Shares) or publicly announce the intention to do any
of the foregoing; provided, however, that the Company may issue Shares, deferred stock units,
restricted stock units or options to purchase Shares, or issue Shares upon exercise of options or
vesting of restricted stock units or deferred stock units, in each case pursuant to any stock
option, stock bonus or other stock plan or arrangement described in each Applicable Prospectus.
Notwithstanding the foregoing, if (i) during the last 17 days of the Lock-up Period, the Company
issues an earnings release or material news or a material event relating to the Company occurs or
(ii) prior to the expiration of the Lock-up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the Lock-up Period, then in
each case the Lock-up Period will be extended until the expiration of the 18-day period beginning
on the date of the issuance of the earnings release or the occurrence of the material news or
material event, as applicable, unless X.X. Xxxxxx waives, in writing, such extension (which waiver
may be withheld at the sole discretion of X.X. Xxxxxx), except that such extension will not apply
if, (i) within three business days prior to the 15th calendar day before the last day of the
Lock-up Period, the Company delivers a certificate, signed by the Chief Financial Officer or Chief
Executive Officer of the Company, certifying on behalf of the Company that (i) the Shares are
“actively traded securities” (as defined in Regulation M), (ii) the Company meets the applicable
requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by
the National Association of Securities Dealers Inc. (the “NASD”) Conduct Rule 2711(f)(4), and
(iii) the provisions of NASD Conduct Rule 2711(f)(4) do not restrict the publishing or distribution
of any research reports relating to the Company published or distributed by the Underwriter during
the 15 days before or after the last day of the Lock-up Period (before giving effect to such
extension). The Company will provide the Underwriter with prior notice of any such announcement
that gives rise to an extension of the Lock-up Period.
(p) Future Reports to the Underwriter. During the period of five years hereafter the Company
will furnish to X.X. Xxxxxx at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Attention: Equity Syndicate
Desk: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of
the Company containing the balance sheet of the Company as of the close of such fiscal year and
statements of income, stockholders’ equity and cash flows for the year then ended and the opinion
thereon of the Company’s independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with
the Commission, FINRA or any securities exchange; and (iii) as soon as available, copies of any
report or communication of the Company mailed generally to holders of its capital stock; except in
each case, reports, filings and other documents referenced herein that are available on XXXXX.
(q) Investment Limitation. The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Offered Shares in such a manner as would require the
Company or any of its subsidiaries to register as an investment company under the Investment
Company Act.
(r) No Stabilization or Manipulation; Compliance with Regulation M. The Company will not
take, directly or indirectly, any action designed to or that could be reasonably expected to cause
or result in stabilization or manipulation of the price of the Shares or any other reference
security, whether to facilitate the sale or resale of the Offered Shares or otherwise, and the
Company will, and shall cause each of its affiliates to, comply with all applicable provisions of
Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with
respect to the Offered Shares or any other reference security pursuant to any exception set forth
in Section (d) of Rule 102, then promptly upon notice from the Underwriter (or, if later, at the
time stated in the notice), the Company will, and shall cause each of its affiliates to, comply
with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as
interpreted by the Commission) did apply.
(s) Existing Lock-Up Agreements. During the Lock-up Period, the Company will enforce all
existing agreements between the Company and any of its security holders that prohibit the sale,
transfer, assignment, pledge or hypothecation of any of the Company’s securities. In addition, the
Company will direct the transfer agent to place stop transfer restrictions upon any such securities
of the Company that are bound by such existing “lock-up” agreements for the duration of the periods
contemplated in such agreements, including, without limitation, “lock-up” agreements entered into
by the Company’s officers and directors pursuant to Section 6(l).
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Offered Shares (including all printing and engraving costs), (ii) all
fees and expenses of the registrar and transfer agent of the Shares, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the Offered Shares to
the Underwriter, (iv) all fees and expenses of the Company’s counsel, independent public or
certified public accountants and other advisors, (v) all costs and expenses incurred by it in
connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of
experts), the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or
on behalf of, used by, or referred to by the Company, and each preliminary prospectus, and all
amendments and supplements thereto, and this Agreement, (vi) all filing fees, attorneys’ fees and
expenses incurred by the Company or the Underwriter in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Offered
Shares for offer and sale under the state securities or blue sky laws or the provincial securities
laws of Canada, and, if requested by the Underwriter, preparing and printing a “Blue Sky Survey” or memorandum and
a “Canadian wrapper”, and any supplements thereto, advising the Underwriter of such qualifications,
registrations, determinations and exemptions, (vii) the filing fees incident to, and the reasonable
fees and expenses of counsel for the Underwriter in connection with, FINRA’s review, if any, and
approval of the
Underwriter’s participation in the offering and distribution of the Offered Shares,
(viii) the costs and expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing of the offering of the Offered Shares, including,
without limitation, expenses associated with the preparation or dissemination of any electronic
road show, expenses associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the representatives, employees and officers
of the Company and any such consultants, (ix) the fees and expenses associated with listing the
Offered Shares on the Nasdaq Global Market, and (ix) all other fees, costs and expenses of the
nature referred to in Item 14 of Part II of the Registration Statement. Except as provided in this
Section 4, Section 7, Section 9 and Section 10 hereof, the Underwriter shall pay its own expenses,
including the fees and disbursements of its counsel.
Section 5. Covenant of the Underwriter. The Underwriter covenants with the Company not to
take any action that would result in the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but
for the action of the Underwriter.
Section 6. Conditions of the Obligations of the Underwriter. The obligations of the
Underwriter to purchase and pay for the Offered Shares as provided herein on the First Closing Date
and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof and as of the First Closing Date as though then made and, with respect
to the Optional Shares, as of each Option Closing Date as though then made, to the timely
performance by the Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Ernst & Young Comfort Letter. On the date hereof, the Underwriter shall have received
from Ernst & Young LLP, independent public or certified public accountants for the Company, (i) a
letter dated the date hereof addressed to the Underwriter, in form and substance reasonably
satisfactory to the Underwriter, containing statements and information of the type ordinarily
included in accountant’s “comfort letters” to Underwriter, delivered according to Statement of
Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited
financial statements of the Company and certain financial information contained in the Registration
Statement, the Preliminary Prospectus, the Time of Sale Prospectus and, with respect to each letter
dated after the date hereof only, the Prospectus, and (ii) confirming that they are (A) independent
public or certified public accountants as required by the Securities Act and the Exchange Act and
(B) in compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X.
(b) PricewaterhouseCoopers LLP Comfort Letter. On the date hereof, the Underwriter shall
have received from PricewaterhouseCoopers LLP, former independent public or certified public
accountants for Diagnostic Hybrids, Inc., (i) a letter dated the date hereof addressed to the
Underwriter, in form and substance reasonably satisfactory to the Underwriter, containing
statements and information of the type ordinarily included in accountant’s “comfort letters” to
Underwriter, delivered according to Statement of Auditing Standards No. 72 (or any successor
bulletin), with respect to certain of the audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the Preliminary Prospectus, the Time
of Sale Prospectus and, with respect to each letter dated after the date hereof only, the
Prospectus, and (ii) confirming that they are (A) independent public or certified public
accountants as required by the Securities Act and the Exchange Act and (B) in compliance
with the applicable requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X.
(c) Compliance with Registration Requirements; No Stop Order; No Objection from FINRA. For
the period from and after effectiveness of this Agreement and prior to the First Closing Date and,
with respect to the Optional Shares, each Option Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including the
information previously omitted from the Registration Statement pursuant to Rule 430B under the
Securities Act) in the manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective amendment to the Registration
Statement containing the information previously omitted pursuant to such Rule 430B, and such
post-effective amendment shall have become effective;
(ii) no stop order suspending the effectiveness of the Registration Statement, any Rule
462(b) Registration Statement, or any post-effective amendment to the Registration Statement, shall
be in effect and no proceedings for such purpose shall have been instituted or threatened by the
Commission; and
(iii) FINRA shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(d) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and through and including the First Closing Date and, with respect to the
Optional Shares, each Option Closing Date:
(i) in the judgment of the Underwriter, there shall not have occurred any Material
Adverse Change; and
(ii) if there are any securities of, or guaranteed by, the Company or any of its
subsidiaries that are rated by a “nationally recognized statistical rating
organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act, there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in any such rating.
(e) Opinion of Counsel for the Company. On each of the First Closing Date and each Option
Closing Date the Underwriter shall have received the opinion and negative assurance letter of
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, the form of which is attached as Exhibit
A.
(f) Opinion of Intellectual Property Counsel for the Company. On each of the First Closing
Date and each Option Closing Date the Underwriter shall have received the opinion of King &
Spalding LLP, intellectual property counsel for the Company, dated as of such Closing Date, with
respect to certain intellectual property matters, the form of which is attached as Exhibit
B.
(g) Regulatory Certificate of Senior Vice President, Clinical and Regulatory Affairs, for the
Company. On each of the First Closing Date and each Option Closing Date the Underwriter shall have
received the certificate of the Company’s Senior Vice President, Clinical and Regulatory Affairs,
dated as of such Closing Date, with respect to certain regulatory matters, the form of which is
attached as Exhibit C.
(h) Opinion of Counsel for the Underwriter. On each of the First Closing Date and each
Option Closing Date the Underwriter shall have received the opinion of Xxxxxx LLP, counsel for the
Underwriter, in form and substance satisfactory to the Underwriter, dated as of such Closing Date.
(i) Officers’ Certificate. On each of the First Closing Date and each Option Closing Date,
the Underwriter shall have received a written certificate executed by the Chief Executive Officer
or President of the Company and the Chief Financial Officer of the Company, dated as of such
Closing Date, to the effect that:
(i) For the period from and including the date of this Agreement through and including
such Closing Date, there has not occurred any Material Adverse Change or any development that would
reasonably be expected to result in a Material Adverse Change (whether or not arising in the
ordinary course of business);
(ii) The representations, warranties and covenants of the Company set forth in this
Agreement are true and correct with the same force and effect as though expressly made on and as of
such Closing Date;
(iii) The Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; and
(iv) The signers of said certificate have carefully examined the Registration Statement,
the Time of Sale Prospectus and the Prospectus, and any amendments thereof or supplements thereto,
and (A) each of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time it became effective and at all subsequent times
through the date of such certificate, complied in all material respects with the Securities Act and
did not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, (B) as of the
Applicable Time, the Time of Sale Prospectus (including any preliminary prospectus wrapper) did
not, and at the time of each sale of the Offered Shares and at the First Closing Date (as defined
in Section 2), the Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, did not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, (C) the Prospectus (including any Prospectus wrapper), as amended or
supplemented, as of its date and at all subsequent times through the date of such certificate, did
not contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, and (D) since the Applicable Time, there has occurred no event required to be set
forth in an amended or supplemented prospectus which has not been so set forth.
(j) Bring-down Comfort Letter of Ernst & Young. On each of the First Closing Date and each
Option Closing Date the Underwriter shall have received from Ernst & Young LLP, independent public
or certified public accountants for the Company, a letter dated such date, in form and substance
reasonably satisfactory to the Underwriter, to the effect that they reaffirm the statements made in
the letter furnished by them pursuant to subsection (a) of this Section 6, except that the
specified date referred to therein for the carrying out of procedures shall be no more than three
business days prior to the First Closing Date or the applicable Option Closing Date, as the case
may be.
(k) Bring-down Comfort Letter of PricewaterhouseCoopers LLP. On each of the First Closing
Date and each Option Closing Date the Underwriter shall have received from PricewaterhouseCoopers
LLP, former independent public or certified public accountants for Diagnostic
Hybrids, Inc., a letter dated such date, in form and substance reasonably satisfactory to the
Underwriter, to the effect that they reaffirm the statements made in the letter furnished by them
pursuant to subsection (b) of this Section 6, except that the specified date referred to therein
for the carrying out of
procedures shall be no more than three business days prior to the First
Closing Date or the applicable Option Closing Date, as the case may be.
(l) Lock-Up Agreements. On or prior to the date hereof, the Company shall have furnished to
the Underwriter an agreement in the form of Exhibit E hereto from each of the persons
listed on Exhibit D hereto, and each such agreement shall be in full force and effect on
each of the First Closing Date and each Option Closing Date.
(m) Nasdaq. The Offered Shares shall have been approved for listing on the Nasdaq Global
Market, subject only to official notice of issuance.
(n) Chief Financial Officer’s Certificate. On each of the First Closing Date and each Option
Closing Date, if any, the Underwriter shall have received a written certificate executed by the
Chief Financial Officer of the Company, dated as of such Closing Date, the form of which is
attached as Exhibit F hereto and to such further effect as counsel for the Underwriter
shall reasonably request.
If any condition specified in this Section 6 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Underwriter by notice to the Company at any time
on or prior to the First Closing Date and, with respect to the Optional Shares, at any time on or
prior to the applicable Option Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 4, Section 7, Section 9 and Section 10
shall at all times be effective and shall survive such termination.
Section 7. Reimbursement of Underwriter’s Expenses. If this Agreement is terminated by the
Underwriter pursuant to Section 6, or Section 12, or if the sale to the Underwriter of the Offered
Shares on the First Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Underwriter upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Underwriter in connection with the proposed purchase and the
offering and sale of the Offered Shares, including but not limited to fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
(a) Indemnification of the Underwriter. The Company agrees to indemnify and hold harmless
the Underwriter, its affiliates, directors, officers and employees, and each person, if any, who
controls the Underwriter within the meaning of the Securities Act or the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which the Underwriter or such officer,
employee or
controlling person may become subject, under the Securities Act, the Exchange Act,
other federal or state statutory law or regulation, or the laws or regulations of foreign
jurisdictions where Offered Shares have been offered or sold or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Company or as otherwise contemplated in Section 9(d) below)), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based upon (A)(i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, or any amendment thereto, including any information deemed to be a
part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; or (B)(i) the violation
by the Company of any laws or regulations of any jurisdictions where Other Firm Shares have been
offered by the Company; or (ii) the failure of any Other Firm Share Purchaser who is a director of
the Company or an affiliate of a director of the Company to timely orally confirm for purchase, pay
for or accept delivery of Other Firm Shares; and to reimburse the Underwriter and each such
officer, employee and controlling person for any and all expenses (including the fees and
disbursements of one counsel chosen by X.X. Xxxxxx in addition to any local counsel) as such
expenses are reasonably incurred by the Underwriter or such officer, employee or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any such free writing prospectus or the Prospectus (or any
amendment or supplement thereto), it being understood and agreed that the only such information
furnished by the Underwriter to the Company consists of the information described in subsection (b)
below. The indemnity agreement set forth in this Section 9(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. The Underwriter agrees to
indemnify and hold harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, or any such director, officer or controlling person may become
subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Underwriter or as otherwise contemplated in
Section 9(d) below), insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, any
preliminary prospectus the Time of Sale Prospectus, any free writing prospectus that the Company
has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities
Act or the Prospectus (or such amendment or supplement thereto), or arises out of or is based upon
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, such preliminary prospectus, the Time of Sale
Prospectus, such free writing prospectus that the Company has used, referred to or filed, or is
required to file, pursuant to Rule 433(d)
of the Securities Act, the Prospectus (or such amendment
or supplement thereto), in reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use therein; and to reimburse the Company, or any such
director, officer or controlling person for any legal and other expense reasonably incurred by the
Company, or any such director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information that the Underwriter has
furnished to the Company expressly for use in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has filed, or
is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any
amendment or supplement thereto) are the statements set forth in the first sentence of the third
paragraph of text concerning the terms of offering (including the concession to certain dealers) by
the Underwriter, and the thirteenth, fourteenth, fifteenth and sixteenth paragraphs of text
relating to over-allotment, stabilization, penalty bids, market making and syndicate covering
transactions by the Underwriter, each under the caption “Underwriting” in the Company’s final
prospectus supplement dated January 6, 2011 relating to the offering of the Offered Shares. The
indemnity agreement set forth in this Section 9(b) shall be in addition to any liabilities that the
Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 9, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for indemnity, contribution or otherwise under the indemnity
agreement contained in this Section 9 to the extent it is not prejudiced as a proximate result of
such failure. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party under this Section 9
for any legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the fees and expenses of more than one separate counsel
(together with local counsel), representing the indemnified parties who are parties to such
action), which counsel (together with any local counsel) for the indemnified parties shall be
selected by X.X. Xxxxxx (in the case of counsel for the indemnified parties referred to in Section
9(a) above) or by the Company (in the case of counsel for the indemnified parties referred to in
Section 9(b) above)) (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party, in each of which
cases the
reasonable fees and expenses of counsel shall be at the expense of the indemnifying party
and shall be paid as they are incurred.
(d) Settlements. The indemnifying party under this Section 9 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 against any loss, claim, damage, liability or expense by reason of such
settlement or judgment to the extent indemnifiable under this Section 9. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as required by Section 9(c)
hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action, suit or proceeding.
Section 10. Contribution. If the indemnification provided for in Section 9 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall, in lieu thereof, contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or
expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from the
offering of the Offered Shares pursuant to this Agreement or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and the Underwriter, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriter, on the other hand, in connection with the offering
of the Offered Shares pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Offered Shares pursuant to this
Agreement (before deducting expenses) received by the Company, and the total underwriting discounts
and commissions received by the Underwriter, in each case as set forth on the front cover page of
the Prospectus bear to the aggregate initial public offering price of the Offered Shares as set
forth on such cover. The relative fault of the Company, on the one hand, and the Underwriter, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, on the one hand, or the Underwriter, on the
other hand, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 9(c) with
respect to notice of
commencement of any action shall apply if a claim for contribution is to be made under this
Section 10; provided, however, that no additional notice shall be required with respect to any
action for which notice has been given under Section 9(c) for purposes of indemnification.
The Company and the Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 10 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
10.
Notwithstanding the provisions of this Section 10, the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions received by the
Underwriter in connection with the Offered Shares underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 10, each officer and employee of the
Underwriter and each person, if any, who controls the Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as the Underwriter,
and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company.
Section 11. [Reserved.]
Section 12. Termination of this Agreement. Prior to the purchase of the Firm Shares by the
Underwriter on the First Closing Date this Agreement may be terminated by the Underwriter by notice
given to the Company if at any time (i) trading or quotation in any of the Company’s securities
shall have been suspended or limited by the Commission or by the Nasdaq Global Market, or trading
in securities generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have
been suspended or limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall
have been declared by any of federal, New York, Delaware or California authorities; (iii) there
shall have occurred any outbreak or escalation of national or international hostilities or any
crisis or calamity, or any change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change in United States’ or
international political, financial or economic conditions, as in the judgment of the Underwriter is
material and adverse and makes it impracticable to market the Offered Shares in the manner and on
the terms described in the Time of Sale Prospectus or the Prospectus or to enforce contracts for
the sale of securities; (iv) in the judgment of the Underwriter there shall have occurred any
Material Adverse Change; or (v) the Company shall have sustained a loss by strike, fire, flood,
earthquake, accident or other calamity of such character as in the judgment of the Underwriter may
interfere materially with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination pursuant to this Section 12
shall be without liability on the part of (a) the Company to the Underwriter, except that the
Company shall be obligated to reimburse the expenses of the Underwriter pursuant to Sections 4 and
7 hereof, (b) the Underwriter to the Company, or (c) of any party hereto to any other party except
that the provisions of Section 9 and Section 10 shall at all times be effective and shall survive
such termination.
Section 13. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Offered Shares pursuant to this Agreement, including the determination of
the public offering price of the Offered Shares and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and the Underwriter, on
the other hand, (b) in connection with the offering contemplated hereby and the process leading to
such transaction the Underwriter is and has been acting solely as a principal and is not the
agent or fiduciary of the Company, or its stockholders, creditors, employees or any other
party, (c) the Underwriter has not assumed and will not assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Underwriter has advised or is currently
advising the Company on other matters) and the
Underwriter has no obligation to the Company with
respect to the offering contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriter and its affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company, and (e) the Underwriter has not
provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
Section 14. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company, of its officers and of
the Underwriter set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter or the Company or
any of its or their partners, officers or directors or any controlling person, as the case may be,
and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the
Offered Shares sold hereunder and any termination of this Agreement.
If to the Underwriter:
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Equity Syndicate Desk
If to the Company:
Quidel Corporation
00000 XxXxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 16. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of the employees, officers and directors and controlling persons
referred to in Section 9 and Section 10 to the extent set forth in such section, and in each case
their respective successors, and no other person will have any right or obligation hereunder. The
term “successors” shall not include any purchaser of the Offered Shares as such from the
Underwriter merely by reason of such purchase.
Section 17. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other
Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 18. Governing Law Provisions. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to agreements made and to be
performed in such state. Any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the
federal courts of the United States of America located in the Borough of Manhattan in the City of
New York or the courts of the State of New York in each case located in the Borough of Manhattan in
the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a
judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such suit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.
Section 19. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 9 and the contribution provisions of
Section 10, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 9 and 10 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any
amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
[Remainder of this page intentionally left blank]
If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, QUIDEL CORPORATION |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Chief Executive Officer | |||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriter in
New York, New York as of the date first above written.
X.X. XXXXXX SECURITIES LLC |
||||
By: | /s/ Sri Xxxxxxxx | |||
Authorized Signatory | ||||
Sri Xxxxxxxx Executive Director |
||||