Insert Number of Shares] ALIMERA SCIENCES, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
[Insert Number of Shares]
ALIMERA SCIENCES, INC.
Common Stock
[ ], 2010
CITIGROUP GLOBAL MARKETS INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters
Dear Sirs:
1. Introductory. Alimera Sciences, Inc., a Delaware corporation (“Company”) agrees with the
several Underwriters named in Schedule A hereto (“Underwriters”), for whom you are acting as
representatives (the “Representatives”), to issue
and sell to the several Underwriters
[ ] shares (“Firm Securities”) of its common stock, par value $0.01 per share (“Securities”) and also
agrees to issue and sell to the Underwriters, at the option of the Underwriters, an aggregate of
not more than [ ] additional shares of its Securities (“Optional Securities”), as set
forth below. The Firm Securities and the Optional Securities are herein collectively called the
“Offered Securities.” As part of the offering contemplated by this Agreement, Credit Suisse
Securities (USA) LLC (the “Designated Underwriter”) has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up to
[l] shares, for sale to the Company’s
directors, officers, business associates, employees and other related parties associated with the
Company (collectively, “Participants”), as set forth in the Final Prospectus and General Disclosure
Package (each as defined herein) under the heading “Underwriting” (the “Directed Share Program”).
The Firm Securities to be sold by the Designated Underwriter pursuant to the Directed Share Program
(the “Directed Shares”) will be sold by the Designated Underwriter pursuant to this Agreement at
the public offering price. Any Directed Shares not subscribed for by the end of the business day
on which this Agreement is executed will be offered to the public by the Underwriters as set forth
in the Final Prospectus.” Capitalized terms used, but not defined, in the text of this Agreement
shall have the meaning set forth in Section 17. Unless otherwise specified, a reference to a
“rule” is to the indicated rule under the Act.
2. Representations and Warranties of the Company. The Company represents and warrants to, and
agrees with, the several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has prepared and filed with the Commission a registration statement on Form S-1
(No. 333-152071) covering the registration of the Offered Securities under the Act and the
Rules and Regulations, including a related preliminary prospectus or prospectuses. At any
particular time, this initial registration statement, in the form then on file with the
Commission, including all material then incorporated by reference therein, all information
contained in the registration
statement (if any) pursuant to Rule 462(b) and then deemed to be a part of the initial
registration statement, and all 430A Information, that in any case has not then been
superseded or modified, shall be referred to as the “Initial Registration Statement.” The
Company may also have filed, or may file with the Commission, a Rule 462(b) registration
statement covering the registration of Offered Securities. At any particular time, this
Rule 462(b) registration statement, in the form then on file with the Commission, including
the contents of the Initial Registration Statement incorporated by reference therein and
including all 430A Information, that in any case has not then been superseded or modified,
shall be referred to as the “Additional Registration Statement.”
As of the time of execution and delivery of this Agreement, the Initial Registration
Statement has been declared effective under the Act and is not proposed to be amended. Any
Additional Registration Statement has or will become effective upon filing with the
Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered
Securities all have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration Statement.
(b) Compliance with Securities Act Requirements. (i) (A) At their respective
Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all respects to the requirements of the Act, (ii) on its
date, at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Time of the Additional Registration Statement in which
the Final Prospectus is included, and on each Closing Date, the Final Prospectus will
conform in all respects to the requirements of the Act and the Rules and Regulations and
will not include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading,
and (iii) on the date of this Agreement, at their respective Effective Times or issue dates
and on each Closing Date, each Registration Statement, the Final Prospectus, any Statutory
Prospectus, any prospectus wrapper and any Issuer Free Writing Prospectus complied or
comply, and such documents and any further amendments or supplements thereto will comply,
with any applicable laws or regulations of foreign jurisdictions in which the Final
Prospectus, any Statutory Prospectus, any prospectus wrapper or any Issuer Free Writing
Prospectus, as amended or supplemented, if applicable, are distributed in connection with
the Directed Share Program.. The preceding sentence does not apply to statements in or
omissions from any such document based upon written information furnished to the Company by
any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that described as such in Section
8(b) hereof.
(c) Ineligible Issuer Status. (i) At the time of the initial filing of the Initial
Registration Statement and (ii) at the date of this Agreement, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted of a felony or
misdemeanor or having been made the subject of a judicial or administrative decree or order
as described in Rule 405 and (y) the Company in the preceding three years not having been
the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a
registration statement be the subject of a proceeding under Section 8 of the Act and not
being the subject of a proceeding under Section 8A of the Act in connection with the
offering of the Offered Securities, all as described in Rule 405.
(d) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus, dated [___] [___], 2010 (which is the most recent Statutory
Prospectus distributed to investors generally) and the other information, if any, stated in
Schedule B to this Agreement to be included in the General Disclosure Package, all
considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
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The preceding sentence does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 8(b)
hereof.
(e) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus, if republished immediately following such event or
development, 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 under which they were made, not misleading, (i) the Company has promptly
notified or will promptly notify the Representatives and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission. This subsection (e) does
not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the information
described as such in Section 8(b) hereof.
(f) Good Standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package and is duly qualified to do business as a foreign
corporation and is in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except where
the failure to be so qualified or have such power or authority would not, individually or
in the aggregate, result in a material adverse effect on the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole (a “Material Adverse Effect”).
(g) Subsidiaries. The Company does not presently own or control, directly or
indirectly, any interest in any other corporation, association, or other business entity.
The Company is not a participant in any joint venture, partnership, or similar arrangement.
(h) Offered Securities; Capitalization. The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly authorized; the
authorized equity capitalization of the Company is as set forth in the General Disclosure
Package; all outstanding shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this Agreement on each
Closing Date, such Offered Securities will have been, validly issued, fully paid and
nonassessable, will conform to the information in the General Disclosure Package and to the
description of such Offered Securities contained in the Final Prospectus; the stockholders
of the Company have no preemptive rights with respect to the Securities; and none of the
outstanding shares of capital stock of the Company have been issued in violation of any
preemptive or similar rights of any security holder.
(i) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there are
no contracts, agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a brokerage
commission,
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finder’s fee or other like payment in connection with the offering and sale of the
Offered Securities.
(j) Registration Rights. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act (collectively, “registration
rights”), and any person to whom the Company has granted registration rights has agreed not
to exercise such rights until after the expiration of the Lock-Up Period referred to in
Section 5(l) hereof.
(k) Listing. The Offered Securities have been approved for listing on the Nasdaq
Global Market, subject to notice of issuance.
(l) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale of the Offered
Securities and the Directed Shares, except such as have been obtained, or made and such as
may be required under state securities laws or applicable rules and regulations of the
Nasdaq Global Market in connection with the purchase and distribution of the Offered
Securities by the Underwriters.
(m) Title to Property. Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries have good and marketable title to, or have valid rights to
lease or otherwise use, all real properties and all other properties and assets owned or
used by them in the conduct of their businesses, in each case free from liens, charges,
encumbrances and defects that would materially affect the value thereof or materially
interfere with the use made thereof by them and, except those that (i) do not materially
interfere with the use made thereof by the Company or its subsidiaries, as the case may be,
or (ii) could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(n) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement, and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of the terms and provisions of,
or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or
result in the imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the
Company, or any of its subsidiaries (ii) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having jurisdiction over the
Company, or any of its subsidiaries or any of their properties, or (iii) any agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject, except, in the case of clauses (ii) and
(iii) above, for any such conflict, breach or violation that would not, individually or in
the aggregate, have a Material Adverse Effect. For purposes of this subsection (n), a
“Debt Repayment Triggering Event” means any event or condition not described in the General
Disclosure Package that gives, or with the giving of notice or lapse of time would give,
the holder of any note, debenture, or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(o) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws or in default (or with
the giving of notice or lapse of time would be in default) under any existing obligation,
agreement, covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or
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instrument to which any of them is a party or by which any of them is bound or to
which any of the properties of any of them is subject, except such defaults that would not,
individually or in the aggregate, result in a Material Adverse Effect.
(p) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(q) Possession of Licenses and Permits. The Company and its subsidiaries possess and
are in compliance with the terms of, all certificates, authorizations, franchises, licenses
and permits (“Licenses”) necessary or material to the conduct of the business now conducted
or, except as disclosed in the General Disclosure Package, proposed in the General
Disclosure Package to be conducted by them and have not received any notice of proceedings
relating to the revocation or modification of any Licenses that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(r) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is imminent that could
have a Material Adverse Effect.
(s) Intellectual Property. The Company and its subsidiaries own, possess or can
develop or acquire on reasonable terms sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals (other than approvals of the U.S. Food and
Drug Administration and similar regulatory agencies in other countries, which the Company
reasonably believes they can obtain), trade secrets, inventions, technology, know-how and
other intellectual property and similar rights, including registrations and applications
for registration thereof (collectively, “Intellectual Property Rights”) necessary or
material to the conduct of the business now conducted or, except as disclosed in the
General Disclosure Package, proposed in the General Disclosure Package to be conducted by
them, and the expected expiration of any such Intellectual Property Rights would not,
individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in
the General Disclosure Package (i) there are no rights of third parties to any of the
Intellectual Property Rights owned by the Company or its subsidiaries; (ii) to the
knowledge of the Company, there is no material infringement, misappropriation breach,
default or other violation, or the occurrence of any event that with notice or the passage
of time would constitute any of the foregoing, by the Company, its subsidiaries or third
parties of any of the Intellectual Property Rights of the Company or its subsidiaries;
(iii) there is no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others challenging the Company’s or any subsidiary’s rights in or
to, or the violation of any of the terms of, any of their Intellectual Property Rights, and
the Company is unaware of any facts which would form a reasonable basis for any such claim;
(iv) there is no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others challenging the validity, enforceability 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; (v) there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by others that the Company or any
subsidiary infringes, misappropriates or otherwise violates or conflicts with any
Intellectual Property Rights or other proprietary rights of others and the Company is
unaware of any other fact which would form a reasonable basis for any such claim; and (vi)
none of the Intellectual Property Rights used by the Company or its subsidiaries in their
businesses has been obtained or is being used by the Company or its subsidiaries in
violation of any contractual obligation binding on the Company or any of its subsidiaries,
or in violation of the rights of any persons, except in each case
covered by clauses (i)-(vi), which if determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, would not have a Material Adverse Effect.
(t) Preclinical and Clinical Trials. The preclinical and clinical trials described in
the General Disclosure Package and the Final Prospectus were and, if still pending, are
being conducted (to the Company’s knowledge, after due inquiry, with respect to such
studies conducted by third parties) in accordance in all material respects with standard
medical and scientific
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research procedures and all applicable rules, regulations and policies of the Food and
Drug Administration, including current Good Clinical Practices and Good Laboratory
Practices, and all applicable foreign regulatory requirements and standards.
(u) Environmental Laws. Except as disclosed in the General Disclosure Package,
neither the Company nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “Environmental Laws”), owns or operates any real
property contaminated with any substance that is subject to any Environmental Laws, is
liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is
subject to any claim relating to any Environmental Laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might lead to such a claim.
(v) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Risk Factors — Risks Related to Intellectual Property
and Other Legal Matters,” “Business — Licenses and Agreements,” “Business — Government
Regulation,” “Business — Patents and Proprietary Rights,” “Business — Legal Proceedings,”
“Description of Capital Stock,” and “Material United States Federal Tax Consequences for
Non-U.S. Shareholders,” insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings and present the information required to be
shown.
(w) Absence of Manipulation. The Company has not taken, directly or indirectly, any
action that is designed to or that has constituted or that would reasonably be expected to
cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(x) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference in a Registration Statement, a
Statutory Prospectus or the General Disclosure Package are based on or derived from sources
that the Company believes to be reliable and accurate.
(y) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set forth
in the General Disclosure Package, the Company, its subsidiaries and the Company’s Board of
Directors (the “Board”) are in compliance with Xxxxxxxx-Xxxxx and all Exchange Rules, to
the extent applicable as of the date hereof. The Company maintains systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act)
(“Internal Controls”) that comply with the requirements of the Exchange Act and have been
designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with U.S.
Generally Accepted Accounting Principles (“GAAP”), including, but not limited to internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management’s general or specific authorization, and (iv)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Internal
Controls are, or upon consummation of the offering of the Offered Securities will be,
overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with
Exchange Rules. The Company has not publicly disclosed or reported to the Audit Committee
or the Board, and within the next 90 days the Company does not reasonably expect to
publicly disclose or report to the Audit Committee or the Board, a significant deficiency,
material weakness, change in Internal Controls or fraud involving management or other
employees who
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have a significant role in Internal Controls (each, an “Internal Control Event”), any
violation of, or failure to comply with, the Securities Laws, or any matter which, if
determined adversely, would have a Material Adverse Effect.
(z) Absence of Accounting Issues. A member of the Audit Committee has confirmed to
the Chief Executive Officer, Chief Financial Officer or General Counsel that, except as set
forth in the General Disclosure Package, the Audit Committee is not reviewing or
investigating, and neither the Company’s independent auditors nor its internal auditors
have recommended that the Audit Committee review or investigate, (i) adding to, deleting,
changing the application of, or changing the Company’s disclosure with respect to, any of
the Company’s material accounting policies; (ii) any matter which could result in a
restatement of the Company’s financial statements for any annual or interim period during
the current or prior three fiscal years; or (iii) any Internal Control Event.
(aa) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) against or affecting the
Company, any of its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or
proceedings (including any inquiries or investigations by any court or governmental agency
or body, domestic or foreign) are threatened or, to the Company’s knowledge, contemplated.
(bb) Financial Statements. The financial statements and the related notes thereto of
the Company included in each Registration Statement and the General Disclosure Package
present fairly the financial position of the Company as of the dates shown and its results
of operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with GAAP applied on a consistent basis throughout the periods
covered thereby and the supporting schedules included in each Registration Statement
present fairly the information required to be stated therein.
(cc) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries, taken as a whole, that is material and adverse, (ii) there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of
its capital stock and (iii) there has been no material adverse change in the capital stock,
short-term indebtedness, long-term indebtedness, net current assets or net assets of the
Company and its subsidiaries.
(dd) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the General Disclosure Package, will not be an “investment company” as defined
in the Investment Company Act of 1940, as amended and the rules and regulations of the
Commission thereunder (the “Investment Company Act”).
(ee) Ratings. No “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company that
it is considering imposing) any condition (financial or otherwise) on the Company’s
retaining any rating assigned to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering any of the actions described in Section
7(c)(ii) hereof.
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(ff) PFIC Status. The Company was not a “passive foreign investment company” (“PFIC”)
as defined in Section 1297 of the United States Internal Revenue Code of 1986, as amended,
for its most recently completed taxable year and, based on the Company’s current projected
income, assets and activities, the Company does not expect to be classified as a PFIC for
any subsequent taxable year.
(gg) Compliance with 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 jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively,
“Money Laundering Laws”) and no action, suite 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.
(hh) Taxation. The Company and its subsidiaries have filed all federal, state, local
and non-U.S. tax returns that are required to be filed or have requested extensions thereof
(except in any case in which the failure so to file would not have a Material Adverse
Effect); and, except as set forth in the General Disclosure Package, the Company and its
subsidiaries have paid all taxes (including any assessments, fines or penalties) required
to be paid by them, except for any such taxes, assessments, fines or penalties currently
being contested in good faith or as would not, individually or in the aggregate, have a
Material Adverse Effect.
(ii) Insurance. The Company and its subsidiaries are insured by insurers with
appropriately rated claims paying abilities against such losses and risks and in such
amounts as are prudent and customary for the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees, officers and directors are
in full force and effect; the Company and its subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no claims by the
Company or any of its subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any insurance coverage sought
or applied for; neither the Company nor any such subsidiary has reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, except as set forth in or
contemplated in the General Disclosure Package; and the Company will obtain directors’ and
officer’s insurance in such amounts as is customary for an initial public offering.
(jj) FCPA. Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds
for any unlawful contribution, gift entertainment or other unlawful expense related to
political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(kk) OFAC. Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries is currently subject to any
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person
8
or entity, for the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
(ll) Absence of Unlawful Influence. The Company has not offered or sold, or caused the
Underwriters to offer or sell, any Offered Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company
to alter the customer’s or supplier’s level or type of business with the Company or (ii) a trade
journalist or publication or other person to write or publish favorable information about the
Company or its products.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company at a purchase price of
$[ ] per share, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule A hereto.
The Company will deliver the Firm Securities to or as instructed by the Representatives for
the accounts of the several Underwriters in a form reasonably acceptable to the Representatives,
against payment of the purchase price by the Underwriters in Federal (same day) funds by wire
transfer to an account at a bank specified by the Company to the Representatives and acceptable to
the Representatives, at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 A.M., New York time, on [ ], 2010, or at such other time not
later than seven full business days thereafter as the Representatives determine, such time being
herein referred to as the “First Closing Date.” For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The Firm Securities so to be delivered or
evidence of their issuance will be made available for checking at the above office of Xxxxx Xxxx &
Xxxxxxxx at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company from time to
time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may
purchase all or less than all of the Optional Securities at the purchase price per Security to be
paid for the Firm Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree, severally and not
jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased from
the Company for the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter’s name bears to the total number of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection with the sale of
the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice by the
Representatives to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will deliver the Optional
Securities being purchased on each Optional Closing Date to or as instructed by the Representatives
for the accounts of the several Underwriters, in a form reasonably acceptable to the
Representatives against payment of the purchase price therefore in Federal (same day) funds by wire
transfer to an account at a bank specified by the Company to the Representatives and acceptable to
the Representatives, at the above office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. The certificates for the Optional Securities being purchased on each Optional
Closing Date or evidence of their issuance will be made available for checking at the above office
of Xxxxx Xxxx & Xxxxxxxx at a reasonable time in advance of such Optional Closing Date.
9
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Additional Filings. Unless filed pursuant to Rule 462(c) as part of the
Additional Registration Statement in accordance with the next sentence, the Company will
file the Final Prospectus, in a form approved by the Representatives, with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than the earlier of (A)
the second business day following the execution and delivery of this Agreement or (B) the
fifteenth business day after the Effective Time of the Initial Registration Statement. The
Company will advise the Representatives promptly of any such filing pursuant to Rule 424(b)
and provide satisfactory evidence to the Representatives of such timely filing. If an
Additional Registration Statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of the
execution and delivery of this Agreement, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the Final Prospectus is
finalized and distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by the Representatives.
(b) Filing of Amendments: Response to Commission Requests. The Company will promptly
advise the Representatives of any proposal to amend or supplement at any time the Initial
Registration Statement, any Additional Registration Statement or any Statutory Prospectus
and will not effect such amendment or supplementation without the Representatives’ consent;
and the Company will also advise the Representatives promptly of (i) the effectiveness of
any Additional Registration Statement (if its Effective Time is subsequent to the execution
and delivery of this Agreement), (ii) any amendment or supplementation of a Registration
Statement or any Statutory Prospectus, (iii) any request by the Commission or its staff for
any amendment to any Registration Statement, for any supplement to any Statutory Prospectus
or for any additional information, (iv) the institution by the Commission of any stop order
proceedings in respect of a Registration Statement or the threatening of any proceeding for
that purpose, and (v) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwriter or dealer, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representatives of such event and will promptly prepare and file with the Commission
and furnish, at its own expense, to the Underwriters and the dealers and any other dealers
upon request of the Representatives, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
10
(d) Rule 158. As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective Time of the
Additional Registration Statement) which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act. For the purpose of the preceding sentence,
“Availability Date” means the day after the end of the fourth fiscal quarter following the
fiscal quarter that includes such Effective Time on which the Company is required to file
its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is the
last quarter of the Company’s fiscal year, “Availability Date” means the day after the end
of such fourth fiscal quarter on which the Company is required to file its Form 10-K.
(e) Furnishing of Prospectuses. The Company will furnish to the Representatives
copies of each Registration Statement (three of which will be signed and will include all
exhibits), each related Statutory Prospectus, and, so long as a prospectus relating to the
Offered Securities is (or but for the exemption in Rule 172 would be) required to be
delivered under the Act, the Final Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives request. The Final
Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other such documents shall
be so furnished as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as required for the
distribution.
(g) Reporting Requirements. For so long as the Offered Securities remain outstanding
(but in no event for more than five years after the date hereof), (i) the Company will
furnish to the Representatives and, upon request, to each of the other Underwriters, as
soon as practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and (ii) the Company will furnish to the Representatives (A) as
soon as available, a copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to stockholders, and (B) from
time to time, such other information concerning the Company as the Representatives may
reasonably request. However, so long as the Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing
reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”), it is not required to furnish such reports or statements to the Underwriters.
(h) Payment of Expenses. The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the obligations of the Company
under this Agreement, including but not limited to (i) any filing fees and other expenses
(including fees and disbursements of counsel to the Underwriters) incurred in connection
with qualification of the Offered Securities for sale under the laws of such jurisdictions
as the Representatives designate and the preparation and printing of memoranda relating
thereto, (ii) costs and expenses related to the review by the Financial Industry Regulatory
Authority, Inc. of the Offered Securities (including filing fees and the fees and expenses
of counsel for the Underwriters relating to such review), (iii) costs and expenses relating
to investor presentations or any “road show” in connection with the offering and sale of
the Offered Securities including, without limitation, any travel expenses of the Company’s
officers and employees and any other expenses of the Company including the chartering of
airplanes, (iv) fees and expenses incident to listing the Offered Securities on the New
York Stock Exchange, American Stock Exchange, Nasdaq Global Market and other national and
foreign exchanges, (v) fees and expenses in connection with the registration of the Offered
Securities under the Exchange Act, (vi) expenses incurred in distributing preliminary
prospectuses and the Final Prospectus (including any amendments and supplements thereto) to
the Underwriters, and (vii) expenses incurred for preparing, printing and distributing any
Issuer Free Writing Prospectuses to investors or prospective investors.
11
(i) Use of Proceeds. The Company will use the net proceeds received by it in
connection with the offering and sale of the Offered Securities in the manner described in
the “Use of Proceeds” section of the General Disclosure Package and, except as disclosed in
the General Disclosure Package, the Company does not intend to use any of the proceeds from
the sale of the Offered Securities hereunder to repay any outstanding debt owed to any
affiliate of any Underwriter.
(j) Absence of Manipulation. The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause
or result in, stabilization or manipulation of the price of any securities of the Company
to facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities by Company. For the period specified below (the
“Lock-Up Period”), the Company will not, directly or indirectly, take any of the following
actions with respect to its Securities or any securities convertible into or exchangeable
or exercisable for any of its Securities (“Lock-Up Securities”): (i) offer, sell, issue,
contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell,
issue, contract to sell, contract to purchase or grant any option, right or warrant to
purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that
transfers, in whole or in part, the economic consequences of ownership of Lock-Up
Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a
call equivalent position in Lock-Up Securities within the meaning of Section 16 of the
Exchange Act or (v) file with the Commission a registration statement under the Act
relating to Lock-Up Securities, or publicly disclose the intention to take any such action,
without the prior written consent of the Representatives, except grants of employee stock
options pursuant to the terms of a plan in effect on the date hereof, issuances of Lock-Up
Securities pursuant to the exercise of such options or the exercise of warrants or any
other employee stock options outstanding on the date hereof or issuances of Lock-Up
Securities pursuant to the Company’s employee stock purchase plan. The initial Lock-Up
Period will commence on the date hereof and continue for 180 days after the date hereof or
such earlier date that the Representatives consent to in writing; provided, however, that
if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings
results or material news or a material event relating to the Company occurs or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the initial Lock-Up
Period, then in each case the Lock-Up Period will be extended until the expiration of the
18-day period beginning on the date of release of the earnings results or the occurrence of
the materials news or material event, as applicable, unless the Representatives waive, in
writing, such extension. The Company will provide the Representatives with notice of any
announcement described in clause (2) of the preceding sentence that gives rise to an
extension of the Lock-Up Period.
(l) Transfer Restrictions. In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent required by the
Financial Industry Regulatory Authority or the NASD rules or the FINRA rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months following the
date of the effectiveness of the Registration Statement. The Designated Underwriter will
notify the Company as to which Participants will need to be so restricted. The Company
will direct the transfer agent to place stop transfer restrictions upon such securities for
such period of time.
(m) Payment of Expenses Related to Directed Share Program. The Company will pay all
fees and disbursements of counsel (including non-U.S. counsel) incurred by the Underwriters
in connection with the Directed Share Program and stamp duties, similar taxes or duties or
other taxes, if any, incurred by the underwriters in connection with the Directed Share
Program.
12
(n) Compliance with Foreign Laws. The Company will comply with all applicable
securities and other applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed Share Program.
6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company
represents and agrees that, unless it obtains the prior consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the prior consent of the
Company and the Representatives, it has not made and will not make any offer relating to
the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to
be filed with the Commission. Any such free writing prospectus consented to by the Company
and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission filing
where required, legending and record keeping. The Company represents that is has satisfied
and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file
with the Commission any electronic road show.
(b) Term Sheets. The Company will prepare a final term sheet relating to the Offered
Securities, containing only information that describes the final terms of the Offered
Securities and otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) following the date such
final terms have been established for all classes of the offering of the Offered
Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted
Free Writing Prospectus for purposes of this Agreement. The Company also consents to the
use by any Underwriter of a free writing prospectus that contains only (i) (x) information
describing the preliminary terms of the Offered Securities or their offering or (y)
information that describes the final terms of the Offered Securities or their offering and
that is included in the final term sheet of the Company contemplated in the first sentence
of this subsection or (ii) other information that is not “issuer information,” as defined
in Rule 433, it being understood that any such free writing prospectus referred to in
clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of
this Agreement.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties of the Company herein (as though made on such Closing Date), to the
accuracy of the statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following additional conditions
precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and each Closing Date, of Deloitte & Touche LLP
confirming that they are a registered public accounting firm and independent public
accountants within the meaning of the Securities Laws and substantially in the form of
Schedule C hereto (except that, in any letter dated a Closing Date, the specified date
referred to in Schedule C hereto shall be a date no more than three days prior to such
Closing Date).
(b) Effectiveness of Registration Statement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at such later time as
shall have been consented to by the Representatives. The Final Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no
13
proceedings for that purpose shall have been instituted or, to the knowledge of, the
Company or the Representatives, shall be contemplated by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, nor any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries, taken as
a whole which, in the judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or
any public announcement that any such organization has under surveillance or review its
rating of any debt securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls the effect
of which is such as to make it, in the judgment of the Representatives, impractical to
market or to enforce contracts for the sale of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary market; (iv) any suspension or
material limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum or maximum prices for trading on such exchange; (v) or any
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or, New
York authorities; (vii) any major disruption of settlements of securities, payment or
clearance services in the United States or any other country where such securities are
listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of the Representatives, the effect
of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such
as to make it impractical or inadvisable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP, counsel for the Company, substantially in the form set forth on Annex A.
(e) Opinion of Patent Counsel for the Company. The Representatives shall have
received an opinion, dated such Closing Date, of Brinks Xxxxx Xxxxxx & Xxxxx, patent
counsel for the Company, substantially in the form set forth on Annex B.
(f) Opinion of Counsel for Underwriters. The Representatives shall have received from
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to such matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(g) Officer’s Certificate. The Representatives shall have received a certificate,
dated such Closing Date, of an executive officer of the Company and a principal financial
or accounting officer of the Company in which such officers shall state that the signers of
such certificate have carefully examined the Registration Statement, the General Disclosure
Package, the Final Prospectus and any supplements or amendments thereto, as well as any
Limited Use Issuer Free Writing Prospectus, and this Agreement and that: the
representations and warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of any Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and
14
(3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the
Commission; and, subsequent to the date of the most recent financial statements in the
General Disclosure Package, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole except as set forth in the General Disclosure Package or as
described in such certificate.
(h) Lock-Up Agreements. On or prior to the date hereof, the Representatives shall
have received lockup letters from each of the executive officers and directors of the
Company and each stockholder of the Company set forth on Schedule D hereto.
(i) Additional Officer’s Certificate. The Representatives shall have received a
certificate, dated such Closing Date, of a principal financial or accounting officer of the
Company in the form set forth in Annex C.
The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably requests. The
Representatives may in their sole discretion waive on behalf of the Underwriters compliance with
any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
8. Indemnification and Contribution.
(a) Indemnification of Underwriters by Company. The Company will indemnify and hold harmless
each Underwriter, including the Designated Underwriter, its partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls such Underwriter or Designated
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several,
to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal
or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any part of any Registration Statement
at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free
Writing Prospectus or in any material prepared by or with the consent of the Company for
distribution to Participants in connection with the Directed Share Program, or arise out of or are
based upon the omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Indemnified Party
for any legal or other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending against any loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto),
whether threatened or commenced, and in connection with the enforcement of this provision with
respect to any of the above as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b) below.
The Company agrees to indemnify and hold harmless the Designated Underwriter and its
affiliates and each person, if any, who controls the Designated Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act (the “Designated Entities”), from
and against any and all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) (i) arising out of or based upon the failure of any Participant to pay for and
accept delivery of Directed Shares that the Participant agreed to purchase or (ii) arising out of,
related to, or in connection with the Directed Share Program, other than losses, claims, damages or
liabilities (or expenses relating thereto) that are finally judicially determined to have resulted
from the willful misconduct or gross negligence of the Designated Entities.
15
(b) Indemnification of Company. Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, each of its directors and each of its officers who signs a Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”) against any
losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become
subject, under the Act, the Exchange Act, or other Federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement at any time, any Statutory Prospectus at any time, the
Final Prospectus or any Issuer Free Writing Prospectus or arise out of or are based upon the
omission or the alleged omission of 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
reliance upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with
investigating or defending against any such loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a
party thereto), whether threatened or commenced, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists of the following
information in the Final Prospectus furnished on behalf of each Underwriter: the concession figures
appearing in the fourth paragraph under the caption “Underwriting” and the information contained in
the thirteenth and fourteenth paragraphs under the caption “Underwriting.”
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to the last paragraph in Section 8(a) hereof or
pursuant to the first paragraph in Section 8(a) hereof with respect to the Designated Underwriter,
its partners, members, directors, officers, employees, agents, affiliates and each person, if any,
who controls such Designated Underwriter in respect of such action or proceeding, then in addition
to such separate firm for the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to any local counsel)
for the Designated Underwriter for the defense of any losses, claims, damages and liabilities
arising out of the Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act of Section 20 of the Exchange Act.
No indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
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(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable considerations referred
to in this Section 8(d).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such arrangements are
made by such Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to the Representatives and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 10 (provided that if such default occurs with respect to Optional Securities after the
First Closing Date, this Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the term “Underwriter”
includes any person substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect,
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regardless of any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives, officers or directors
or any controlling person, and will survive delivery of and payment for the Offered Securities. If
the purchase of the Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 9 hereof, the Company
will reimburse the Underwriters for all accountable out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the offering of the
Offered Securities, and the respective obligations of the Company and the Underwriters pursuant to
Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been
purchased hereunder, the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect.
11. Notices. All communications hereunder will be in writing, and:
(a) if sent to the Underwriters, will be mailed, delivered or telefaxed and confirmed to (i)
Credit Suisse Securities (USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: LCD-IBD, and (ii) Citigroup Global Markets Inc. General Counsel (fax no.: (000) 000
0000) and confirmed to the General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or
(b) if sent to the Company, will be mailed, delivered or telefaxed and confirmed to [ ], Attention: [ ];
provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telefaxed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation hereunder.
13. Representation. The Representatives will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this Agreement taken by
the Representatives jointly will be binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of the Offered Securities and that no fiduciary, advisory
or agency relationship between the Company, on the one hand, and the Representatives, on the other,
has been created in respect of any of the transactions contemplated by this Agreement or the Final
Prospectus, irrespective of whether the Representatives have advised or are advising the Company on
other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by Company following discussions and arms-length negotiations with the
Representatives and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Representatives
and their affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that the Representatives have no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; and
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(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims they may
have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty
and agree that the Representatives shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company, including stockholders, employees or creditors of the
Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in Federal and state
courts in the Borough of Manhattan in the City of New York and irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such suit or proceeding in any
such court has been brought in an inconvenient forum.
17. Definitions. As used herein, the following capitalized terms shall have the following
meanings:
“430A Information,” with respect to any registration statement, means information
included in a prospectus and retroactively deemed to be a part of such registration
statement pursuant to Rule 430A(b).
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means [ ]:00 [a/p]m (Eastern time) on the date of this
Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” with respect to the Initial Registration Statement or, if filed prior
to the execution and delivery of this Agreement, the Additional Registration Statement
means the date and time as of which such Registration Statement was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c). If an
Additional Registration Statement has not been filed prior to the execution and delivery of
this Agreement but the Company has advised the Representatives that it proposes to file
one, “Effective Time” with respect to such Additional Registration Statement means the date
and time as of which such Registration Statement is filed and becomes effective pursuant to
Rule 462(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430A Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with
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the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
The Initial Registration Statement and the Additional Registration Statement are
referred to collectively as the “Registration Statements” and individually as a
“Registration Statement.” A “Registration Statement” with reference to a particular time
means the Initial Registration Statement and any Additional Registration Statement as of
such time. A “Registration Statement” without reference to a time means such Registration
Statement as of its Effective Time. For purposes of the foregoing definitions, 430A
Information with respect to a Registration Statement shall be considered to be included in
such Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission under the
Act.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002, as amended
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of the New York Stock Exchange and the Nasdaq Global Market
(“Exchange Rules”).
“Statutory Prospectus” with reference to a particular time means the prospectus
included in a Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any 430A Information with respect to such
Registration Statement. For purposes of the foregoing definition, 430A Information shall
be considered to be included in the Statutory Prospectus as of the actual time that form of
prospectus is filed with the Commission pursuant to Rule 424(b) or Rule 462(c) and not
retroactively.
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If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the Company and the several Underwriters in accordance with its terms.
| Very truly yours, ALIMERA SCIENCES, INC. |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. | ||||
| CREDIT SUISSE SECURITIES (USA) LLC | ||||
| CITIGROUP GLOBAL MARKETS INC. | ||||
Acting on behalf of themselves and as
the Representatives of the
several Underwriters. |
||||
| By CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
