EXHIBIT 1.1
6,000,000
COMBINATORX, INCORPORATED
COMMON STOCK
UNDERWRITING AGREEMENT
November [ ], 2005
XX XXXXX & CO., LLC
PACIFIC GROWTH EQUITIES, LLC
LAZARD CAPITAL MARKETS LLC
X.X. XXXXXXX & SONS, INC.
As Representatives of the Several Underwriters
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. CombinatoRx, Incorporated, a Delaware corporation (the
"Company"), proposes to sell, pursuant to the terms of this Agreement, to the
several underwriters named in Schedule A hereto (the "Underwriters," or, each,
an "Underwriter"), an aggregate of 6,000,000 shares of common stock, $.001 par
value (the "Common Stock"), of the Company. The aggregate of 6,000,000 shares so
proposed to be sold is hereinafter referred to as the "Firm Stock". The Company
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 3 hereof, up to an additional 900,000 shares of Common Stock
(the "Optional Stock"). The Firm Stock and the Optional Stock are hereinafter
collectively referred to as the "Stock". XX Xxxxx & Co., LLC ("XX Xxxxx"),
Pacific Growth Equities, LLC, Lazard Capital Markets LLC and X.X. Xxxxxxx &
Sons, Inc. are acting as representatives of the several Underwriters and in such
capacity are hereinafter referred to as the "Representatives." As part of the
offering contemplated by this Agreement, XX Xxxxx (the "Designated Underwriter")
has agreed to reserve, out of the Firm Stock purchased by it under this
Agreement, up to 300,000 shares for sale to the Company's customers and business
partners and friends of the Company's officers, directors and employees
(collectively, "Participants"), as set forth in the Prospectus (as defined
herein) under the heading "Underwriting" (the "Directed Share Program"). The
Firm Stock 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
Prospectus.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several Underwriters and the Designated
Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-121173) (including
all pre-effective amendments thereto, the "Initial Registration Statement")
in respect of the Stock has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any,
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increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Securities Act") and the rules and regulations (the
"Rules and Regulations") of the Commission thereunder, which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations, is
hereinafter called a "Preliminary Prospectus"); the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act and deemed by virtue of
Rule 430A under the Securities Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at the
time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statements"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Securities Act, is hereinafter
called the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Securities Act. No order
preventing or suspending the use of any Preliminary Prospectus, Prospectus,
or any amendment or supplement thereto has been issued by the Commission.
(b) The Registration Statement conforms (and the Rule 462(b) Registration
Statement, if any, the Prospectus and any amendments or supplements to
either of the Registration Statements or the Prospectus, when they become
effective or are filed with the Commission, as the case may be, will
conform) in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statements and any amendment
thereto) and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER,
that the foregoing representations and warranties in this paragraph (b)
shall not apply to information contained in or omitted from the
Registration Statements or the Prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information the parties hereto agree is limited to the Underwriter's
Information (as defined in Section 17). The Prospectus contains all
required information under Rule 430A.
(c) The Company is duly incorporated and validly existing as a corporation
in good standing under the laws of Delaware, and the subsidiary (as defined
in Section 15) is duly incorporated and validly existing under the laws of
Singapore, and is a separate legal entity capable of suing and being sued,
and the Company and its subsidiary have all power and authority (corporate
or other) necessary to own or hold their respective properties and to
conduct the business in which they are engaged. The Company and its
subsidiary are duly qualified to do business and are in good standing as
foreign corporations or other legal entities in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective business requires such qualification, except where the failure
to so qualify or have such power or authority (i) would not have,
singularly or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, business, assets or
prospects of the Company and its subsidiary taken as a whole or (ii) impair
in any material respect the ability of the Company or its subsidiary to
perform its obligations under this Agreement or to consummate any
transaction contemplated
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by this Agreement or the Prospectus (any such effect as described in
clauses (i) or (ii), a "Material Adverse Effect"). Except for its interest
in CombinatoRx (Singapore) Pte Ltd. ("CombinatoRx Singapore"), the Company
does not own or control, directly or indirectly, any interest in any
corporation, partnership, limited liability partnership, limited liability
corporation, association or other entity. The Company has no subsidiary (as
defined in Section 15) other than CombinatoRx Singapore. Schedule B sets
forth the number of shares of capital stock of CombinatoRx Singapore owned,
directly or indirectly, by the Company and the percentage of voting power
of issued and outstanding voting capital stock of CombinatoRx Singapore
represented by such shares.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) The Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable and free of any preemptive or
similar rights and will conform to the description thereof contained in the
Prospectus.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company,
have been duly and validly authorized and issued, are fully paid and
non-assessable, have been issued in compliance with federal and state
securities laws, and conform to the description thereof contained in the
Prospectus. There are, and immediately prior to the Closing, there will be
1,006,180 shares of common stock issued and outstanding and 503,400 shares
of Series A convertible preferred stock, par value $0.001, 3,364,250 shares
of Series B convertible preferred stock, par value $0.001, 10,746,666
shares of Series C convertible preferred stock, par value $0.001, 8,292,699
shares of Series D convertible preferred stock, par value $0.001, and
1,363,636 shares of Series E convertible preferred stock, par value $0.001
of the Company (such Series A convertible preferred stock, Series B
convertible preferred stock, Series C convertible preferred stock, Series D
convertible preferred stock and Series E convertible preferred stock,
collectively, the "Preferred Stock") issued and outstanding, and 2,887,149
shares of common stock are issuable upon the exercise of all outstanding
options, warrants and convertible securities (other than Preferred Stock).
There are no authorized or outstanding shares of capital stock, or 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 its subsidiary other
than those described in the Prospectus. Immediately upon the First Closing,
all outstanding shares of Preferred Stock will automatically be converted
into an aggregate of 14,730,380 shares of common stock of the Company(1)
and all outstanding options, warrants, rights or other securities
convertible into or exercisable for Preferred Stock or common stock will be
converted into or exercisable or exchangeable for an aggregate of 2,887,149
shares of common stock of the Company (the shares of Common Stock issued
upon conversion of outstanding Preferred Stock or upon conversion, exercise
or exchange of all outstanding warrants, rights or other securities are
collectively referred to herein as, the "Converted Common Shares"). None of
the outstanding shares of Common Stock or Preferred Stock was, and none of
the Converted Common Shares will be, issued in violation of any preemptive
rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company. The description of the Company's stock
option, stock bonus and other stock plans or arrangements, and the options
or other rights granted
----------
(1) This assumes a conversion price for the Series E convertible preferred
stock equal to an initial public offering price of $11.00 per share.
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thereunder, as described in the Prospectus accurately and fairly present
the information required under the Securities Act to be shown with respect
to such plans, arrangements, options and rights.
(g) All the outstanding shares of capital stock of the subsidiary of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the Prospectus, are
owned by the Company, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other claim
of any third party.
(h) The execution, delivery and performance of this Agreement by the
Company, the issue and sale of the Stock by the Company and the
consummation of the transactions contemplated hereby will not (with or
without notice or lapse of time or both) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or give rise to any right of termination, or loss of any
benefit under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or its subsidiary is a
party or by which the Company or its subsidiary is bound or to which any of
the property or assets of the Company or its subsidiary is subject, nor
will such actions result in any violation of the provisions of the charter
or by-laws of the Company or its subsidiary (or analogous governing
instrument, as applicable) or any statute or any judgment, order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or its subsidiary or any of their properties or assets.
(i) Except for such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities laws,
the National Association of Securities Dealers, Inc. ("NASD") and the
Nasdaq Stock Market, Inc. ("Nasdaq") in connection with the purchase and
distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body, which has not been obtained or taken and is
not in full force and effect, is required for the execution, delivery and
performance of this Agreement by the Company, the offer and sale of the
Stock and the consummation of the transactions contemplated hereby.
(j) Ernst & Young LLP, who have expressed their opinions on the audited
financial statements and related schedules included in the Registration
Statements and the Prospectus are registered independent public accountants
as required by the Securities Act and the Rules and Regulations.
(k) The financial statements, together with the related notes and
schedules, included in the Prospectus and in each Registration Statement
fairly present the financial position and the results of operations and
changes in financial position of the Company and its subsidiary at the
respective dates or for the respective periods therein specified. Such
statements and related notes and schedules have been prepared in accordance
with United States generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, PROVIDED,
HOWEVER, that the unaudited financial statements do not contain all
footnotes required by GAAP. The financial statements, together with the
related notes and schedules, included in the Prospectus comply in all
material respects with the Securities Act and the Rules and Regulations
thereunder. No other financial statements or supporting schedules or
exhibits are required by the Securities Act or the Rules and Regulations
thereunder to be included in the Prospectus.
(l) Neither the Company nor its subsidiary has sustained, since the date
of the latest audited financial statements included in the Prospectus, any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
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labor dispute or court or governmental action, order or decree, otherwise
than as set forth in the Prospectus; and, since such date, there has not
been any change in the capital stock or long-term debt of the Company or
its subsidiary or any material adverse change, or any change or development
involving a prospective material adverse change, in or affecting the
business, general affairs, management, financial position, stockholders'
equity, results of operations or prospects of the Company and its
subsidiary, taken as a whole, other than as set forth in the Prospectus.
(m) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or its subsidiary is a
party or of which any property or assets of the Company or its subsidiary
is the subject which is required to be described in the Registration
Statement or the Prospectus and is not described therein, or which,
singularly or in the aggregate, if determined adversely to the Company or
its subsidiary, might have a Material Adverse Effect; and to the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or by others. The Company and its subsidiary are
in compliance with all applicable federal, state, local and foreign laws,
regulations, orders and decrees governing their business as prescribed by
the United States Food and Drug Administration (the "FDA"), or any other
federal, state or foreign agencies or bodies, including those bodies and
agencies engaged in the regulation of pharmaceuticals or biohazardous
substances or materials, except where noncompliance would not, singularly
or in the aggregate, have a Material Adverse Effect. All preclinical and
clinical studies undertaken by or on behalf of the Company or its
subsidiary have been and are being conducted by the Company, or to the
Company's knowledge by third parties, in compliance in all material
respects with all applicable federal, state or foreign laws, rules, orders
or regulations. No filing or submission to the FDA or any other federal,
state or foreign regulatory body contains any material omission or material
false information.
(n) Neither the Company nor its subsidiary (i) is in violation of its
charter or by-laws (or analogous governing instrument, as applicable), (ii)
is in default in any respect, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, lease, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject or (iii) is in violation
in any respect of any law, ordinance, governmental rule, regulation or
court decree or judgment to which it or its property or assets may be
subject except in the case of clauses (ii) and (iii) of this paragraph (n)
for any violations or defaults which, singularly or in the aggregate, would
not have a Material Adverse Effect.
(o) The Company and its subsidiary possess all licenses, certificates,
authorizations and permits issued by, and have made all declarations and
filings with, the appropriate local, state, federal or foreign regulatory
agencies or bodies which are necessary or desirable for the ownership of
their respective properties or the conduct of their respective business as
described in the Prospectus, including without limitation all such
licenses, certificates, authorizations and permits required by the FDA or
any other federal, state or foreign agencies or bodies engaged in the
regulation of pharmaceuticals or biohazardous materials, except where any
failures to possess or make the same, singularly or in the aggregate, would
not have a Material Adverse Effect; all of such licenses, certificates,
authorizations and permits are valid and in full force and effect, except
where the invalidity of such licenses, certificates, authorizations and
permits or the failure of such licenses, certificates, authorizations and
permits to be in full force and effect would not, singularly or in the
aggregate, have a Material Adverse Effect; and neither the Company nor its
subsidiary has received notification of any revocation or modification (or
proceedings related thereto) of any such license, certificate,
authorization or permit or has any reason to believe that any such license,
certificate, authorization or permit will not be renewed. The studies,
tests and
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preclinical or clinical trials, if any, conducted by or on behalf of the
Company or its subsidiary that are described in the Registration Statements
or the Prospectus were and, if still pending, are being, conducted in all
material respects in accordance with experimental protocols, procedures and
controls pursuant to, where applicable, accepted professional scientific
standards; the descriptions of the results of such studies, tests and
trials contained in the Registration Statements or the Prospectus are
accurate in all material respects; and neither the Company nor its
subsidiary has received any notice or correspondence from the FDA or any
foreign, state or local governmental body exercising comparable authority
requiring the termination, suspension or material modification of any
studies, tests, or preclinical or clinical trials conducted by or on behalf
of the Company or its subsidiary.
(p) Neither the Company nor its subsidiary is or, after giving effect to
the offering of the Stock and the application of the proceeds thereof as
described in the Prospectus will be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(q) Neither the Company, nor any of its officers or directors, nor to the
knowledge of the Company any of its affiliates, has taken or will take,
directly or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to cause
or result in, stabilization or manipulation of the price of any security of
the Company.
(r) The Company and its subsidiary own or possess legally enforceable
rights from all necessary third parties (the "Licensors") to use all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets, know-how and other intellectual property rights necessary for the
conduct of its business described in the Prospectus, and the Company is not
aware of any claim to the contrary or any challenge by any other person to
the rights of the Company or its subsidiary with respect to the foregoing.
Except where such failure to make the same would not, singularly or in the
aggregate, have a Material Adverse Effect, the Company or its subsidiary is
listed in the records of the appropriate United States, state, or foreign
registry as the sole current owner of record for each intellectual property
registration and application for registration owned by the Company or its
subsidiary, respectively, except for such intellectual property
applications as have been filed in the name of employees who are
contractually obligated to assign all of their rights in and to such
intellectual property applications to the Company, and all such
applications and registrations have been duly maintained, are subsisting,
in full force and effect, have not been cancelled, expired, or abandoned.
Neither the Company nor its subsidiary has received written notification of
any revocation or modification of any registered intellectual property
right, or has any reason to believe that any renewable registered
intellectual property right will not be renewed, other than any revocation,
modification or failure to renew that would not, singularly or in the
aggregate, have a Material Adverse Effect. The business of the Company and
its subsidiary as now conducted, and as proposed to be conducted as
described in the Prospectus, does not and will not infringe or conflict
with any patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, know-how or other intellectual property right or
franchise right of any person, except where such infringement would not,
singly or in the aggregate, have a Material Adverse Effect. There are no
oppositions, cancellations, invalidity proceedings, re-examination
proceedings, suits, arbitrations, or threatened claims pending or for which
notice has been provided or, to the knowledge of Company, threatened,
challenging the Company's or its subsidiary's ownership of, right to use,
or the validity or enforceability of any patent, trademark, service xxxx,
trade name, copyright, trade secret, license, know-how or other
intellectual property right or franchise right of any person which would,
singularly or in the aggregate, have a Material Adverse Effect.
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(s) Patent applications for all inventions owned by or licensed to the
Company or its subsidiary that are material to the conduct of the business
of the Company or its subsidiary in the manner in which it has been or is
contemplated to be conducted have been duly and properly filed or caused to
be filed with the United States Patent and Trademark Office ("PTO") and, in
some cases, applicable foreign and international patent authorities.
Assignments for all patents and patent applications, including, without
limitation any continuations, divisionals, continuations-in-part, renewals,
reissues and applications for registration of any of the foregoing
(collectively, the "Patents") owned by or licensed to the Company or its
subsidiary that are material to the conduct of the business of the Company
or its subsidiary in the manner in which it has been or is contemplated to
be conducted have been properly executed and recorded for each named
inventor. To the knowledge of the Company, all printed publications and
patent references material to the patentability of the inventions claimed
in the Patents have been disclosed to those patent offices so requiring. To
the knowledge of the Company, each of the Company, its subsidiary and their
respective assignors or the Licensors, as applicable, has met its duty of
candor and good faith to the PTO for the Patents. To the knowledge of the
Company, no material misrepresentation has been made to any patent office
in connection with the Patents. The Company is not aware of any facts
material to a determination of patentability regarding the Patents not
disclosed to the PTO or other applicable patent office. The Company is not
aware of any facts not disclosed to the PTO or other applicable patent
office that would preclude the patentability, validity or enforceability of
any patent or patent application in the Patents. The Company has no
knowledge of any facts that would preclude the Company, its subsidiary or
the Licensors, as applicable, from having clear title to the patents and
patent applications in the Patents.
(t) To the knowledge of the Company, no third party is engaging in any
activity that infringes, misappropriates or otherwise violates any patent,
trademark, service xxxx, trade name, copyright, trade secret, license,
know-how or any other intellectual property right or franchise right owned
by or licensed to the Company or its subsidiary, except as described in the
Prospectus and except for such activities that, singularly or in the
aggregate, would not have a Material Adverse Effect.
(u) With respect to each material agreement governing all rights in and to
any patent, trademark, service xxxx, trade name, copyright, trade secret,
license, know-how or any other intellectual property right or franchise
right licensed by or licensed to the Company or its subsidiary: (i) neither
the Company nor its subsidiary has received any notice of indemnification,
termination or cancellation under such agreement, received any notice of
breach or default under such agreement, which breach has not been cured, or
granted to any third party any rights, adverse or otherwise, under such
agreement that would constitute a material breach of such agreement; and
(ii) none of the Company, its subsidiary nor, to the knowledge of the
Company, any other party to such agreement, is in breach or default thereof
in any material respect, and no event has occurred that, with notice or
lapse of time, would constitute such a material breach or default or permit
termination, modification or acceleration under such agreement.
(v) Except for (i) the security interests or pledges granted to General
Electric Capital Corporation, Lighthouse Capital IV, L.P., Lighthouse
Capital V, L.P. and BioMedical Sciences Investment Fund Pte Ltd, as
described in the Registration Statement; and (ii) liens and encumbrances
which are not, singularly or in the aggregate, material in amount, the
Company and its subsidiary have good and marketable title in fee simple to,
or have valid rights to lease or otherwise use, all items of real or
personal property which are material to the business of the Company and its
subsidiary free and clear of all liens, encumbrances, security interests,
claims and defects.
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(w) No labor disturbance by the employees of the Company or its subsidiary
exists or, to the Company's knowledge, is imminent, that could reasonably
be expected, singularly or in the aggregate, to have a Material Adverse
Effect. The Company is not aware that any key employee, officer or
significant group of employees of the Company or its subsidiary plans to
terminate employment with the Company or its subsidiary.
(x) No "prohibited transaction" (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred or could
reasonably be expected to occur with respect to any employee benefit plan
which, singularly or in the aggregate, could have a Material Adverse
Effect; each employee benefit plan is in compliance in all material
respects with applicable law, including ERISA and the Code; the Company has
not incurred and does not expect to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any "pension plan";
and each "pension plan" (as defined in ERISA) for which the Company or its
subsidiary would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which could,
singularly or in the aggregate, cause the loss of such qualification.
(y) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due to, or caused
by the Company or its subsidiary (or any other entity for whose acts or
omissions the Company or its subsidiary is or may be liable) upon any of
the property now or previously owned or leased by the Company or its
subsidiary, or upon any other property, in violation of any statute or any
ordinance, rule, regulation, order, judgment, decree or permit or which
would, under any statute or any ordinance, rule (including rule of common
law), regulation, order, judgment, decree or permit, give rise to any
liability, except for any violation or liability which would not have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company or its subsidiary
have knowledge, except for any such disposal, discharge, emission, or other
release of any kind which would not have, singularly or in the aggregate
with all such discharges and other releases, a Material Adverse Effect.
(z) The Company and its subsidiary each (i) have timely filed all
necessary federal, state and foreign income and franchise tax returns, all
of which when filed were true, complete and correct in all material
respects, (ii) have paid all federal, state, local and foreign taxes,
assessments, governmental or other charges due and payable for which it is
liable, and (iii) do not have any tax deficiency or claims outstanding or
assessed or, to the Company's knowledge, proposed against it which could
reasonably be expected to have a Material Adverse Effect. Neither the
Company nor its subsidiary has engaged in any transaction which is a
corporate tax shelter or which could be characterized as such by the
Internal Revenue Service or any other taxing authority. The accruals and
reserves on the books and records of the Company and its subsidiary in
respect of tax liabilities for any taxable period not yet finally
determined are adequate to meet any assessments and related liabilities for
any such period, and since December 31, 2004 neither the Company nor its
subsidiary has incurred any liability for taxes other than in the ordinary
course.
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(aa) The Company and its subsidiary each carry, or is covered by, insurance
in such amounts and covering such risks as is adequate for the conduct of
its business and the value of its properties and as is customary for
similarly sized companies engaged in similar businesses in similar
industries.
(bb) The Company and its subsidiary maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(cc) The minute books of the Company and its subsidiary have been made
available to the Underwriters and counsel for the Underwriters, and such
books (i) contain an accurate and fair summary of all meetings and actions
of the board of directors (including each board committee) and shareholders
of the Company and its subsidiary since the time of its incorporation
through the date of the latest meeting and action, and (ii) accurately in
all material respects reflect all transactions referred to in such minutes.
(dd) There is no franchise, lease, contract, agreement or document required
by the Securities Act or by the Rules and Regulations to be described in
the Prospectus or to be filed as an exhibit to the Registration Statements
which is not described or filed therein as required; and all descriptions
of any such franchises, leases, contracts, agreements or documents
contained in the Registration Statements are accurate and complete
descriptions of such documents in all material respects. Other than as
described in the Prospectus, no such franchise, lease, contract or
agreement has been suspended or terminated for convenience or default by
the Company or its subsidiary or any of the other parties thereto, and
neither the Company nor it subsidiary has received notice of, or has other
knowledge of, any such pending or threatened suspension or termination,
except for such pending or threatened suspensions or terminations that
would not reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect. Further, other than as described in the
Prospectus, all such franchises, leases, contracts, agreements and
documents are in full force and effect and neither the Company nor its
subsidiary is in breach, violation or default of any such franchises,
leases, contracts, agreements or documents and no event has occurred which
with notice or lapse of time or both would constitute a breach, violation
or default of any such franchises, leases, contracts, agreements or
documents.
(ee) No relationship, direct or indirect, exists between or among the
Company or its subsidiary on the one hand, and the directors, officers,
stockholders, affiliates, customers or suppliers of the Company or its
subsidiary on the other hand, which is required to be described in the
Prospectus and which is not so described.
(ff) No person or entity has the right to require registration of shares of
Common Stock or other securities of the Company or its subsidiary in
connection with the filing or effectiveness of the Registration Statements
or otherwise, except for persons and entities who have expressly waived
such right in writing or who have been given timely and proper written
notice and have failed to exercise such right within the time or times
required under the terms and conditions of such right. Except as described
in the Prospectus, there are no persons with registration rights or similar
rights to have any securities registered by the Company or its subsidiary
under the Securities Act.
10
(gg) Neither the Company nor its subsidiary owns any "margin securities" as
that term is defined in Regulation U of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), and none of the
proceeds of the sale of the Stock will be used, directly or indirectly, for
the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which might
cause any of the Stock to be considered a "purpose credit" within the
meanings of Regulation T, U or X of the Federal Reserve Board.
(hh) Except as set forth in this Agreement, neither the Company nor its
subsidiary is a party to any contract, agreement or understanding with any
person that could give rise to a valid claim against the Company or the
Underwriters for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Stock.
(ii) No forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(jj) The Stock has been approved for listing subject to notice of issuance
on the Nasdaq National Market of the Nasdaq Stock Market, Inc. (the "Nasdaq
National Market").
(kk) The Company has taken all necessary actions to ensure that, upon and
at all times after the effectiveness of the Registration Statement, it will
be in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act
of 2002 and all rules and regulations promulgated thereunder or
implementing the provisions thereof (the "Xxxxxxxx-Xxxxx Act") that are
then in effect and is actively taking steps to ensure that it will be in
compliance with other applicable provisions of the Xxxxxxxx-Xxxxx Act not
currently in effect upon the effectiveness of such provisions.
(ll) The Company has taken all necessary actions to ensure that, upon and
at all times after Nasdaq shall have approved the Stock for inclusion
therein, it will be in compliance with all applicable corporate governance
requirements set forth in the Nasdaq Marketplace Rules that are then in
effect and is actively taking steps to ensure that it will be in compliance
with other applicable corporate governance requirements set forth in the
Nasdaq Marketplace Rules not currently in effect upon the effectiveness of
such requirements.
(mm) Neither the Company nor its subsidiary nor, to the Company's
knowledge, any employee or agent of the Company or its subsidiary, has made
any contribution or other payment to any official of, or candidate for, any
federal, state, local or foreign office in violation of any law or of the
character required to be disclosed in the Prospectus.
(nn) There are no transactions, arrangements or other relationships between
and/or among the Company, any of its affiliates (as such term is defined in
Rule 405 of the Securities Act) and any unconsolidated entity, including,
but not limited to, any structured finance, special purpose or limited
purpose entity that could reasonably be expected to materially affect the
Company's or its subsidiary's liquidity or the availability of or
requirements for the Company's or its subsidiary's capital resources
required to be described in the Prospectus which have not been described as
required.
(oo) There are no outstanding loans, advances (except normal advances for
business expense in the ordinary course of business) or guarantees or
indebtedness by the Company or its subsidiary, to or for the benefit of any
of the officers or directors of the Company or its subsidiary, or any of
their respective family members, except as disclosed in the Prospectus.
11
(pp) There has been no dividend or distribution of any kind declared, paid
or made by the Company on any capital stock.
(qq) The Registration Statements, the Prospectus and the Preliminary
Prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which they are distributed in connection with the Directed Share Program.
No authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws or regulations of any foreign jurisdiction in which the
Directed Shares are offered outside the United States.
(rr) The Company has not offered, or caused the Underwriters to offer, any
Firm Stock to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer, supplier or
business partner of the Company to alter the customer's, supplier's or
business partner's level or type of business with the Company or (ii) a
trade journalist or publication to write or publish favorable information
about the Company or its products.
(ss) There are no rulemaking or similar proceedings before the FDA or
comparable federal, state, local or foreign government bodies which involve
the Company, which, if the subject of an action unfavorable to the Company,
could result, singularly or in the aggregate, in a Material Adverse Effect.
(tt) Neither the Company nor any of its affiliates (within the meaning of
NASD Conduct Rule 2720(b)(1)(a)) 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(dd) of the By-laws of the NASD)
of, any member firm of the NASD, other than as described on Schedule D
hereof.
(uu) Except as disclosed in the letter dated October 25, 2005 of Ropes &
Xxxx LLP, on behalf of the Company, to the Commission, the Company and its
directors, officers and employees have not made any email transmissions
relating to or in connection with the offering in violation of Section 5 of
the Securities Act.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of shares of Firm Stock (rounded up or down, as
determined by XX Xxxxx in its discretion, in order to avoid fractions) obtained
by multiplying 6,000,000 shares of Firm Stock by a fraction the numerator of
which is the number of shares of Firm Stock set forth opposite the name of such
Underwriter in Schedule A hereto and the denominator of which is the total
number of shares of Firm Stock.
The purchase price per share to be paid by the Underwriters to the Company
for the Stock will be $[ ] per share (the "Purchase Price").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters (through the facilities of The
Depositary Trust Company or, at the election of the Representatives, in the form
of definitive certificates, issued in such names and in such denominations as
the Representatives may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York City time, on the second full business day
preceding the First Closing Date (as defined below) against payment of the
aggregate Purchase Price therefor by wire transfer to an account at a bank
acceptable to XX Xxxxx, payable to the order of the Company, all at the offices
of Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Time
shall be of the essence, and delivery at the
12
time and place specified pursuant to this Agreement is a further condition of
the obligations of each Underwriter hereunder. The time and date of the delivery
and closing shall be at 10:00 A.M., New York City time, on November [ ], 2005,
in accordance with Rule 15c6-1 of the Exchange Act. The time and date of such
payment and delivery are herein referred to as the "First Closing Date". The
First Closing Date and the location of delivery of, and the form of payment for,
the Firm Stock may be varied by agreement between the Company and XX Xxxxx.
In the event that the Representatives elect to have the Underwriters take
delivery of definitive certifcates, the Company shall make the certificates for
the Stock available to the Representatives for examination on behalf of the
Underwriters in New York, New York at least one full business day prior to the
First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of shares of Optional
Stock specified in the written notice by XX Xxxxx described below and the
Underwriters agree, severally and not jointly, to purchase such shares of
Optional Stock. Such shares of Optional Stock shall be purchased from the
Company and for the account of each Underwriter in the same proportion as the
number of shares of Firm Stock set forth opposite such Underwriter's name on
Schedule A hereto bears to the total number of shares of Firm Stock (subject to
adjustment by XX Xxxxx to eliminate fractions). The option granted hereby may be
exercised as to all or any part of the Optional Stock at any time, and from time
to time, not more than thirty (30) days subsequent to the date of this Agreement
and may be exercised only three times. No Optional Stock shall be sold and
delivered unless the Firm Stock previously has been, or simultaneously is, sold
and delivered. The right to purchase the Optional Stock or any portion thereof
may be surrendered and terminated at any time upon notice by XX Xxxxx to the
Company.
The option granted hereby may be exercised by written notice being given to
the Company by XX Xxxxx setting forth the number of shares of the Optional Stock
to be purchased by the Underwriters and the date and time for delivery of and
payment for the Optional Stock. Each date and time for delivery of and payment
for the Optional Stock (which may be the First Closing Date, but not earlier) is
herein called the "Option Closing Date" and shall in no event be earlier than
two (2) business days nor later than five (5) business days after written notice
is given. (The Option Closing Date and the First Closing Date are herein called
the "Closing Dates".)
The Company will deliver the Optional Stock to the Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Representatives may direct by notice in writing to the Company given at
or prior to 12:00 Noon, New York City time, on the second full business day
preceding the Option Closing Date against payment of the aggregate Purchase
Price therefor in federal (same day) funds by certified or official bank check
or checks or wire transfer to an account at a bank acceptable to XX Xxxxx
payable to the order of the Company all at the offices of Ropes & Xxxx LLP, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligations of each Underwriter hereunder. In the event
that the Representatives elect to have the Underwriters take delivery of
definitive certifcates, the Company shall make the certificates for the Optional
Stock available to the Representatives for examination on behalf of the
Underwriters in New York, New York at least one full business day prior to the
Option Closing Date. The Option Closing Date and the location of delivery of,
and the form of payment for, the Optional Stock may be varied by agreement
between the Company and XX Xxxxx.
The several Underwriters propose to offer the Stock for sale upon the terms
and conditions set forth in the Prospectus.
13
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters and the Designated Underwriter that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and file such Rule
462(b) Registration Statement with the Commission on the date hereof;
prepare the Prospectus in a form approved by the Representatives and file
such Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the second business day following the execution and delivery of this
Agreement; make no further amendment or any supplement to the Registration
Statements or to the Prospectus to which the Representatives shall
reasonably object by notice to the Company after a reasonable period (not
less than two business days) to review; advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to either Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters with copies thereof; advise the
Representatives, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statements or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, use its
best efforts to obtain its withdrawal as soon as practicable.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Stock is required to be delivered any event occurs or
condition exists as a result of which the Prospectus as then amended or
supplemented would, when the Prospectus is delivered, include any untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Securities Act, the Company
will promptly notify the Representatives thereof and upon their request
will prepare an amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance. The Company will furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of
such amended or supplemented Prospectus; and in case any Underwriter is
required to deliver a prospectus relating to the Stock nine months or more
after the effective date of the Initial Registration Statement, the Company
upon the request of the Representatives and at the expense of such
Underwriter will prepare promptly an amended or supplemented Prospectus as
may be necessary to permit compliance with the requirements of Section
10(a)(3) of the Securities Act.
(c) The Company will furnish promptly to each of the Representatives and
to counsel for the Underwriters a signed copy of each of the Registration
Statements as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(d) The Company will deliver promptly to the Representatives in New York
City such number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration Statements as
originally filed with the Commission and each amendment thereto (in each
case excluding exhibits), (ii) each Preliminary Prospectus, and (iii) the
Prospectus (not later than 10:00 A.M., New York City time, on the business
day following the execution and delivery of this Agreement) and any amended
or supplemented
14
Prospectus (not later than 10:00 A.M., New York City time, on the business
day following the date of such amendment or supplement).
(e) The Company will make generally available to its shareholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), a consolidated earnings statement of the Company
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the Company,
Rule 158).
(f) The Company will promptly take from time to time such actions as the
Representatives may reasonably request to qualify the Stock for offering
and sale under the securities or Blue Sky laws of such jurisdictions
(domestic or foreign) as the Representatives may designate and to continue
such qualifications in effect for so long as required for the distribution
of the Stock; PROVIDED that the Company and its subsidiary shall not be
obligated to qualify as foreign corporations in any jurisdiction in which
they are not so qualified or to file a general consent to service of
process in any jurisdiction.
(g) During the period of five years from the date hereof, the Company will
deliver, upon request, to the Representatives and to each of the other
Underwriters, (i) as soon as they are available, copies of all reports or
other communications furnished to shareholders and (i) as soon as they are
available, copies of any reports and financial statements furnished or
filed with the Commission or any national securities exchange or automatic
quotation system on which the Stock is listed or quoted, with the filing of
any such document with the Commission by XXXXX and the email delivery of
such document (or of a notice of such filing) to a designated email address
of each Representative and Underwriter deemed sufficient to satisfy the
Company's obligation to deliver such document under this Section 4(g).
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock for a period of 180 days from the date of the Prospectus
(the "Lock-Up Period") without the prior written consent of XX Xxxxx other
than (A) the Company's sale of the Stock hereunder, (B) the issuance of
shares of Common Stock or securities exercisable for Common Stock pursuant
to (i) employee benefit plans, qualified stock option plans or other
employee compensation plans, as such plans are in existence on the date
hereof and described in the Prospectus, or (ii) currently outstanding
options, warrants or rights, and (C) the issuance of not more than an
aggregate of 1,000,000 shares of Common Stock (including warrants
exercisable for such shares of Common Stock) to unaffiliated third parties
in connection with one or more strategic partnerships, joint ventures,
collaborations or similar arrangements for the purpose of promoting,
marketing or distributing the Company's product candidates, or in
connection with one or more acquisitions or licenses by the Company of any
business, products or technologies, provided, however in the case of clause
(C) that, prior to the issuance of any such shares or warrants, each
recipient thereof shall have entered into and delivered to you a lock-up
agreement substantially in the form of Exhibit I hereto. The Company will
cause (x) each shareholder, optionholder and warrantholder of the Company
that is an institutional investor to furnish to the Representatives, prior
to the First Closing Date, a letter, substantially in the form of Exhibit
II hereto, (y) each officer and director of the Company and each
shareholder, optionholder (other than optionholders listed on Schedule C
hereto) and warrantholder of the Company that is not an institutional
investor and each person that owns other rights to acquire capital stock of
the Company to furnish to the Representatives, prior to the First Closing
Date, a letter, substantially in the form of Exhibit I hereto, and (z) each
optionholder listed on Schedule C hereto to furnish to the Representatives,
prior to the First Closing Date, a letter, substantially in the form of
Exhibit III hereto, pursuant to which letters such persons shall
15
agree not to directly or indirectly offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
for a period of 180 days from the date of the Prospectus, without the prior
written consent of XX Xxxxx. The Company also agrees that during such
period, the Company will not file any registration statement, preliminary
prospectus or prospectus, or any amendment or supplement thereto, under the
Securities Act for any such transaction or which registers, or offers for
sale, Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, except for a registration statement on Form
S-8 relating to employee benefit plans. The Company hereby agrees that (i)
if it issues an earnings release or material news, or if a material event
relating to the Company occurs, during the last 17 days of the Lock-Up
Period, or (ii) if 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, the restrictions
imposed by this paragraph (h) shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or
the occurrence of the material news or material event.
(i) The Company will supply the Representatives with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to each of the Closing Dates, the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for any
periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business
and consistent with the past practices of the Company and of which the
Representatives are notified), without the prior written consent of the
Representatives, unless in the judgment of the Company and its counsel, and
after notification to the Representatives, such press release or
communication is required by law.
(l) Without limiting the provisions of Section 4(h) in connection with the
offering of the Stock, until XX Xxxxx shall have notified the Company of
the completion of the resale of the Stock, the Company will not, and will
cause its affiliated purchasers (as defined in Regulation M under the
Exchange Act) not to, either alone or with one or more other persons, bid
for or purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Common Stock, or attempt to
induce any person to purchase any Common Stock; and not to, and to cause
its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of
the Common Stock.
(m) The Company will not take any action prior to the Option Closing Date
which would require the Prospectus to be amended or supplemented pursuant
to Section 4(b).
(n) For at least one year from the date hereof, the Company shall at all
times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in
effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock as
set forth in the Prospectus under the heading "Use of Proceeds".
16
(p) In connection with the Directed Share Program, the Company will ensure
that the Directed Shares will be restricted to the extent required by the
NASD or the NASD 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.
(q) The Company will comply with all applicable securities and other
applicable securities and other laws, rules and regulations in each foreign
jurisdiction in which the Directed Shares are offered in connection with
the Directed Share Program.
(r) The Company will use its best efforts to effect and, for at least one
year from the date hereof, maintain the quotation of the Stock on the
Nasdaq.
(s) The Company will use its best efforts to do and perform all things
required to be done or performed under this Agreement by the Company prior
to each Closing Date and to satisfy all conditions precedent to the
delivery of the Firm Stock and the Optional Stock.
(t) The Company will not declare, pay or otherwise make a dividend or
distribution of any kind on any of its capital stock prior to the Closing
Dates.
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriters to pay, or
reimburse if paid by any Underwriter, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Stock and any taxes payable in that connection; (b) the costs incident to
the Registration of the Stock under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of the Registration Statement,
Preliminary Prospectus, Prospectus, any amendments, supplements and exhibits
thereto and the costs of printing, reproducing and distributing the "Agreement
Among Underwriters" between the Representatives and the Underwriters, the Master
Selected Dealers' Agreement, the Underwriters' Questionnaire and this Agreement
by mail, telex or other means of communications; (d) the fees and expenses
(including related fees and expenses of counsel for the Underwriters) incurred
in connection with any required review by the NASD of the terms of sale of the
Stock and any filings made with the NASD; (e) any applicable listing or other
fees; (f) the fees and expenses of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 4(f) and of preparing,
printing and distributing Blue Sky Memoranda and Legal Investment Surveys
(including related fees and expenses of counsel to the Underwriters); (g) all
fees and expenses of the registrar and transfer agent of the Stock; (h) the cost
of preparing and printing stock certificates; (i) all fees and expenses the
Designated Underwriter incurred in connection with the Directed Share Program,
including the fees, disbursements and expenses of its counsel and stamp duties,
similar taxes or duties or other taxes, if any, incurred in connection with the
Directed Share Program; and (j) all other costs and expenses incident to the
offering of the Stock or the performance of the obligations of the Company under
this Agreement (including, without limitation, the fees and expenses of the
Company's counsel and the Company's independent accountants); PROVIDED that,
except as otherwise provided in this Section 5 and in Section 9, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the resale of any Stock by them
and the expenses of advertising any offering of the Stock made by the
Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of the
several Underwriters hereunder are subject to the accuracy, when made and on
each of the Closing Dates, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
17
(a) No stop order suspending the effectiveness of either of the
Registration Statements shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the Commission, and any
request for additional information on the part of the Commission (to be
included in the Registration Statements or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Representatives. The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in accordance
with Section 4(a) and the NASD shall have raised no objection to the
fairness and reasonableness of the terms of this Agreement or the
transaction contemplated hereby.
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that any Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters,
is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement the Stock, the
Registration Statement and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Ropes & Xxxx LLP shall have furnished to the Representatives such
counsel's written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives, with respect to the matters set forth
on Exhibit IV.
(e) Xxxxx & Elbing LLP shall have furnished to the Representatives such
counsel's written opinion, as patent counsel to the Company, addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, with respect to the matters
set forth on Exhibit V.
(f) Xxxxxxxx & Sunstein LLP shall have furnished to the Representatives
such counsel's written opinion, as patent counsel to the Company, addressed
to the underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, with respect to the matters
set forth on Exhibit VI.
(g) Drew & Xxxxxx LLC shall have furnished to the Representatives such
counsel's written opinion, as Singapore counsel to the Company and its
subsidiary, addressed to the underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Representatives, with
respect to the matters set forth on Exhibit VII.
(h) The Representatives shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Underwriters
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for enabling them to pass upon such
matters.
(i) At the time of the execution of this Agreement, the Representatives
shall have received from Ernst & Young LLP a letter, addressed to the
Underwriters, and executed and dated such date, in form and substance
satisfactory to the Representatives (i) confirming that they are
18
independent certified public accountants with respect to the Company and
its subsidiary within the meaning of the Securities Act and the Rules and
Regulations and (ii) stating the conclusions and findings of such firm with
respect to the financial statements and certain financial information
contained in the Registration Statements and the Prospectus.
(j) On the effective date of any post-effective amendment and on the
Closing Date, the Representatives shall have received a letter (the
"bring-down letter") from Ernst & Young LLP addressed to the Underwriters
and executed and dated the Closing Date confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus as of a date not more than three
business days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representatives
concurrently with the execution of this Agreement pursuant to Section 6(i).
(k) The Company shall have furnished to the Representatives a certificate,
dated the Closing Date, of its Chief Executive Officer and its Chief
Financial Officer stating that (i) such officers have carefully examined
the Registration Statements and the Prospectus and each amendment or
supplement thereto and, in their opinion, the Registration Statements and
each amendment thereto, as of their respective effective dates, and the
Prospectus and each amendment thereto, as of the respective date thereof
and the Closing Date, did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
since the effective date of the Initial Registration Statement no event has
occurred which should have been set forth in a supplement or amendment to
the Registration Statements or the Prospectus, (iii) to their knowledge
after reasonable investigation, as of the Closing Date, the representations
and warranties of the Company in this Agreement are true and correct and
the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date, and (iv) subsequent to the date of the most recent audited
financial statements included in the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Company and its subsidiary taken as a whole, or any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of
the Company and its subsidiary taken as a whole, except as set forth in the
Prospectus.
(l) Neither the Company nor its subsidiary shall have sustained since the
date of the latest audited financial statements included in the Prospectus
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth in the Prospectus and since such date there shall not have been
any change in the capital stock or long-term debt of the Company or its
subsidiary or any change, or any development involving a prospective
change, in or affecting the business, general affairs, management,
financial position, stockholders' equity or results of operations of the
Company or its subsidiary, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in this
paragraph (l), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale
or delivery of the Stock on the terms and in the manner contemplated in the
Prospectus.
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale
of the Stock or materially and adversely affect the business or operations
of the Company; and no injunction, restraining order or order of any other
nature by
19
any federal or state court of competent jurisdiction shall have been issued
as of the Closing Date which would prevent the issuance or sale of the
Stock or materially and adversely affect the business or operations of the
Company.
(n) Subsequent to the execution and delivery of this Agreement no
downgrading shall have occurred in the Company's corporate credit rating.
(o) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange, the Nasdaq National Market or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum or maximum prices or maximum
range for prices shall have been established on any such exchange or such
market by the Commission, by such exchange or market or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state authorities
or a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, (iii) the United
States shall have become engaged in hostilities, or the subject of an act
of terrorism, or there shall have been an outbreak of or escalation in
hostilities involving the United States, or there shall have been a
declaration of a national emergency or war by the United States, as to make
it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the sale or delivery of the Stock on the terms and in the
manner contemplated in the Prospectus or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
sale or delivery of the Stock on the terms and in the manner contemplated
in the Prospectus.
(p) The Nasdaq National Market shall have approved the Stock for
inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(q) XX Xxxxx shall have received the written agreements, (i) substantially
in the form of Exhibit II hereto of shareholders, optionholders and
warrantholders of the Company that are institutional investors, (ii)
substantially in the form of Exhibit I hereto of the directors and officers
of the Company and of shareholders, optionholders (other than the
optionholders listed on Schedule C hereto) and warrantholders of the
Company that are not institutional investors and holders of other rights to
purchase capital stock of the Company, and (iii) substantially in the form
of Exhibit III hereto of the optionholders of the Company listed on
Schedule C hereto.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
directors, officers, managers, members, employees, representatives and
agents and each person, if any, who controls any Underwriter within the
meaning of the Securities Act (collectively the "Underwriter Indemnified
Parties" and, each an "Underwriter Indemnified Party") against any loss,
claim, damage or liability, joint or several, or any action or
investigation in respect thereof, to which that Underwriter Indemnified
Party may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability, action or investigation arises out of
or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the
20
Preliminary Prospectus, either of the Registration Statements or the
Prospectus or in any amendment or supplement thereto, (ii) the omission or
alleged omission to state in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus or in any amendment or supplement
thereto a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (iii) the content, distribution
or receipt of any e-mail transmission or other "written communication," as
such term is defined by Rule 405 under the Securities Act as adopted on
June 29, 2005 and currently scheduled to take effect on December 1, 2005,
made by the Company or any of its directors, officers, or employees
relating to or in connection with the offering, and shall reimburse each
Underwriter Indemnified Party promptly upon demand for any legal fees or
other expenses reasonably incurred by that Underwriter Indemnified Party in
connection with investigating or preparing to defend or defending against
or appearing as a third party witness in connection with any such loss,
claim, damage, liability, action or investigation as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability,
action or investigation arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from the
Preliminary Prospectus, either of the Registration Statements or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for use
therein, which information the parties hereto agree is limited to the
Underwriter's Information (as defined in Section 17).
The Company shall indemnify and hold harmless the Designated Underwriter
and its directors, officers, managers, members, employees, representatives
and agents and each person, if any, who controls any Underwriter within the
meaning of the Securities Act (collectively, the "Designated Underwriter
Indemnified Parties," and each a "Designated Underwriter Indemnified
Party") against any loss, claim, damage or liability, joint or several, or
any action or investigation in respect thereof, to which that Designated
Underwriter Indemnified Party may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability, action or
investigation arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any material
prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program, (ii) the
omission or alleged omission to state in any material prepared by or with
the consent of the Company for distribution to Participants in connection
with the Directed Share Program of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (iii) the failure
of any Participant to pay for and accept delivery of Directed Shares that
the Participant agreed to purchase, or (iv) any other loss, claim, damage
or liability, or any action or investigation in respect of, related to,
arising out of, or in connection with the Directed Share Program, other
than such 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 Underwriter.
The indemnity agreements provided for in this Section 7(a) are not
exclusive and will be in addition to any liability which the Company might
otherwise have and shall not limit any rights or remedies which may
otherwise be available under this Agreement, at law or in equity to any
Underwriter Indemnified Party or Designated Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company its officers, employees, representatives and agents,
each of its directors and each person, if any, who controls the Company
within the meaning of the Securities Act (collectively the "Company
Indemnified Parties" and each a "Company Indemnified Party") against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company
21
Indemnified Parties may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus,
either of the Registration Statements or the Prospectus or in any amendment
or supplement thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for use therein, which information
the parties hereto agree is limited to the Underwriters' Information (as
defined in Section 17), and shall reimburse the Company Indemnified Parties
for any legal or other expenses reasonably incurred by such parties in
connection with investigating or preparing to defend or defending against
or appearing as third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided
that the parties hereto hereby agree that such written information provided
by the Underwriters consists solely of the Underwriter's Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not limit
any rights or remedies which may otherwise be available under this
Agreement, at law or in equity to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of any claim or the commencement of any action or investigation the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action or investigation; PROVIDED, HOWEVER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have under this Section 7 except to the extent it has been materially
prejudiced by such failure; and, PROVIDED, FURTHER, that the failure to
notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this Section 7. If
any claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified
party (which counsel shall not, except with written consent of the
Indemnified Party, be counsel to the Indemnifying Party). After notice from
the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified
party shall have been advised by its counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of
such counsel it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the defense of
such claim or action and employ counsel reasonably satisfactory to the
indemnified party or does not diligently defend the claim or action in
which case, if such indemnified party notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume (or in the case of a failure to diligently defend, to continue to
defend) the defense of such action on behalf of such indemnified party and
the indemnifying party shall be responsible for all legal fees or other
expenses subsequently incurred by such indemnified party in connection with
the defense of
22
such action or claim. Notwithstanding anything to the contrary herein, the
Company Indemnifying Party shall not be entitled to assume the defense of
any investigation against an Underwriter Indemnified Party or Designated
Underwriter Indemnified Party. If any investigation shall be brought
against an Underwriter Indemnified Party or Designated Underwriter
Indemnified Party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be responsible for all legal fees or other
expenses incurred in connection with the defense of such investigation.
However, the indemnifying party shall not, in connection with any one
action, claim or investigation, or separate but substantially similar or
related actions, claims or investigations, in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at
any time for all such indemnified parties (in addition to any local
counsel), which firm shall be designated in writing by XX Xxxxx, if the
indemnified parties under this Section 7 consist of any Underwriter
Indemnified Party, or by the Company if the indemnified parties under this
Section 7 consist of any Company Indemnified Parties. Each indemnified
party, as a condition of the indemnity agreements contained in Sections
7(a) and 7(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. Subject to
the provisions of Section 7(d) below, no indemnifying party shall be liable
for any settlement of any such action or investigation effected without its
written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action or investigation, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment.
Notwithstanding anything contained herein to the contrary, if indemnity may
be sought pursuant to the penultimate paragraph in Section 7(a) hereof in
respect of such action, proceeding or investigation, 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 directors, officers,
employees, representatives and agents of, and all persons, if any, who
control the Designated Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the request for
reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request (other
than for fees and expenses that the indemnifying party is reasonably
contesting in good faith) prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a)
or, 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability,
action or investigation in respect thereof, (i) in such proportion as shall
be appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of the
Stock or if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, action or investigation in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the
23
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Stock purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission; provided that the parties hereto agree that the
written information furnished to the Company through the Representatives by
or on behalf of the Underwriters for use in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus consists solely of
the Underwriter's Information. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this
Section 7(e) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
action or investigation in respect thereof, referred to above in this
Section 7(e) shall be deemed to include, for purposes of this Section 7(e),
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action, claim or
investigation. Notwithstanding the provisions of this Section 7(e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Stock underwritten by it and
distributed to the public were offered to the public less the amount of any
damages which such Underwriter has otherwise paid or become liable to pay
by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting obligations and
not joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by XX Xxxxx, in its absolute discretion by notice given to the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 6(l), 6(n) or 6(o) have occurred
or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. Notwithstanding anything to the
contrary in this Agreement, if (a) this Agreement shall have been terminated
pursuant to Section 8 or 10, (b) the Company shall fail to tender the Stock for
delivery to the Underwriters for any reason not permitted under this Agreement,
or (c) the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement the Company shall reimburse the Underwriters for
the fees and expenses of their counsel and for such other out-of-pocket expenses
as shall have been reasonably incurred by them in connection with this Agreement
and the proposed purchase of the Stock, and upon demand the Company shall pay
the full amount thereof to XX Xxxxx. If this Agreement is terminated pursuant to
Section 10 by reason of the default of one or more Underwriters, the Company
shall not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
24
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement or supplements to
the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except that the representations
and warranties set forth in Section 2, obligations with respect to expenses to
be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section
7 and Sections 11 through 21 shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties and the
Designated Underwriter Indemnified Parties, and the indemnities of the several
Underwriters shall also be for the benefit of the Company Indemnified Parties.
It is understood that the Underwriter's responsibility to the Company is solely
contractual in nature and the Underwriters do not owe the Company, or any other
party, any fiduciary duty as a result of this Agreement.
12. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company acknowledges and agrees
that:
(a) each Underwriter's responsibility to the Company is solely contractual
in nature, the Representatives have been retained solely to act as
underwriters in connection with the sale of the Stock and no fiduciary,
advisory or agency relationship between the Company and the Representatives
has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether any of the Representatives has advised
or is advising the Company on other matters;
(b) the price of the Stock set forth in this Agreement was established by
the Company following discussions and arms-length negotiations with the
Representatives, and the Company
25
is capable of evaluating and understanding, and understands and accepts,
the terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) it 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
(d) it waives, to the fullest extent permitted by law, any claims it may
have against the Representatives for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Representatives shall have no
liability (whether direct or indirect) to the Company in respect of such a
fiduciary duty claim.
13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Company or any person controlling any of them and shall
survive delivery of and payment for the Stock. Notwithstanding any termination
of this Agreement, including without limitation any termination pursuant to
Section 8 or Section 10, the indemnities, covenants, agreements,
representations, warranties and other statements forth in Sections 2, 5, 7 and 9
and Sections 11 through 21, inclusive, of this Agreement shall not terminate and
shall remain in full force and effect at all times.
14. NOTICES. All statements, requests, notices and agreements hereunder shall
be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to XX Xxxxx & Co., LLC 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets (Fax:
000-000-0000), with a copy to the same address, Attention: Legal Department
(Fax: 000-000-0000), and a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to CombinatoRx, Incorporated, 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 Attention: Xxxxxx Xxxxxxxxx (Fax:
000-000-0000), with a copy to Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxx (Fax: 000-000-0000);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 7
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto
by the Representatives upon request. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof.
15. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the "Underwriters' Information" consists
solely of the following information in the Prospectus: the statements concerning
the Underwriters contained in the (i) last paragraph on the front
26
cover concerning delivery of the Stock by the Underwriters; and (ii) the third
paragraph, the tenth paragraph and the eleventh paragraph under the heading
"Underwriting" and the table of Underwriters participating in the offering.
18. AUTHORITY OF THE REPRESENTATIVES. In connection with this Agreement, you
will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Representatives, will be binding on all the
Underwriters.
19. 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.
20. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representatives.
21. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
27
If the foregoing is in accordance with your understanding of the agreement
between the Company, and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
COMBINATORX, INCORPORATED
By:
-----------------------
Name:
Title:
Accepted as of
the date first above written:
XX XXXXX & CO., LLC
PACIFIC GROWTH EQUITIES, LLC
LAZARD CAPITAL MARKETS LLC
X.X. XXXXXXX & SONS, INC.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: XX XXXXX & CO., LLC
By:
--------------------------------
Name:
Title:
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
---- --------- ---------
XX Xxxxx & Co., LLC
Pacific Growth Equities, LLC
Lazard Capital Markets LLC
X.X. Xxxxxxx & Sons, Inc.
---------- ----------
Total
========== ==========
SCHEDULE B
PERCENTAGE OF VOTING POWER OF
NUMBER OF SHARES OF CAPITAL TOTAL NUMBER OF ISSUED AND OUTSTANDING VOTING
STOCK OF CombinatoRx SINGAPORE AUTHORIZED SHARES OF CAPITAL STOCK OF CombinatoRx
OWNED, DIRECTLY OR INDIRECTLY, BY CAPITAL STOCK OF SINGAPORE REPRESENTED BY SUCH
THE COMPANY CombinatoRx SINGAPORE SHARES
----------------------------------------------------------------------------------------------
SCHEDULE C
OPTIONHOLDERS TO FURNISH EXHIBIT III LETTER
SCHEDULE D
EXHIBIT I
, 2005
XX Xxxxx & Co., LLC
Pacific Growth Equities, LLC
Lazard Capital Markets LLC
X.X. Xxxxxxx & Sons, Inc.
As representatives of the
several Underwriters
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re:
CombinatoRx, Incorporated Public Offering of Common Stock
---------------------------------------------------------
Dear Sirs:
In order to induce XX Xxxxx & Co., LLC ("XX Xxxxx") and Pacific Growth
Equities, LLC, Lazard Capital Markets LLC and X.X. Xxxxxxx & Sons, Inc.
(together with XX Xxxxx, the "Representatives"), to enter in to a certain
underwriting agreement with
CombinatoRx, Incorporated, a Delaware corporation
(the "Company"), with respect to the public offering (the "Public Offering") of
shares of the Company's Common Stock, par value $0.001 per share ("Common
Stock"), the undersigned hereby agrees that for a period of 180 days following
the date of the final prospectus filed by the Company with the Securities and
Exchange Commission in connection with such Public Offering (the "Restricted
Period"), the undersigned will not, without the prior written consent of XX
Xxxxx, directly or indirectly, (i) offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
(including, without limitation, shares of Common Stock or any such securities
which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations promulgated under the Securities Act of 1933, as
the same may be amended or supplemented from time to time (such shares or
securities, the "Beneficially Owned Shares")) (ii) enter into any swap, hedge or
similar agreement or arrangement that transfers in whole or in part, the
economic risk of ownership of the Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable for Common Stock or (iii) engage
in any short selling of the Common Stock.
If (i) the Company issues an earnings release or material news or a
material event relating to the Company occurs during the last 17 days of the
Restricted Period, or (ii) prior to the expiration of the Restricted Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Restrictive Period, the restrictions imposed by
this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
The restrictions set forth herein shall not apply to any transfer or
disposition of any shares of Common Stock, any Beneficially Owned Shares or
securities convertible into or exercisable or
I - 2
exchangeable for Common Stock: (a) as a bona fide gift or gifts; (b) to any
trust, family limited partnership or family limited liability company for the
direct or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that any such transfer shall not involve a disposition for
value; or (c) by will or intestacy to the undersigned's legal representative,
heir or immediate family; PROVIDED THAT, in each case, each and every
transferee, distributee or donee thereof agrees in writing, in form satisfactory
to XX Xxxxx, to be bound by the terms of this Agreement, a copy of which will be
delivered to XX Xxxxx. For purposes of this agreement, "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin. Anything contained herein to the contrary notwithstanding, any person to
whom shares of Common Stock, securities convertible into or exercisable or
exchangeable for Common Stock or Beneficially Owned Shares are transferred from
the undersigned shall be bound by the terms of this Agreement.
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the Restricted Period, any and all rights, if any, to request or
demand registration pursuant to the Securities Act of 1933, as amended, of any
shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock that are registered in the name of the undersigned
or that are Beneficially Owned Shares. In order to enable the aforesaid
covenants to be enforced, the undersigned hereby consents to the placing of
legends and/or stop transfer orders with the transfer agent of the Common Stock
with respect to any shares of Common Stock or Beneficially Owned Shares.
Notwithstanding anything herein to the contrary, if the closing of the
Public Offering has not occurred prior to March 31, 2006, this Agreement shall
be of no further force or effect.
By:
----------------------------
Name:
Title:
EXHIBIT II
, 2005
XX Xxxxx & Co., LLC
Pacific Growth Equities, LLC
Lazard Capital Markets LLC
X.X. Xxxxxxx & Sons, Inc.
As representatives of the
several Underwriters
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re:
CombinatoRx, Incorporated Public Offering of Common Stock
---------------------------------------------------------
Dear Sirs:
In order to induce XX Xxxxx & Co., LLC ("XX Xxxxx") and Pacific Growth
Equities, LLC, Lazard Capital Markets LLC and X.X. Xxxxxxx & Sons, Inc.
(together with XX Xxxxx, the "Representatives"), to enter in to a certain
underwriting agreement with
CombinatoRx, Incorporated, a Delaware corporation
(the "Company"), with respect to the public offering (the "Public Offering") of
shares of the Company's Common Stock, par value $0.001 per share ("Common
Stock"), the undersigned hereby agrees that for a period of 180 days following
the date of the final prospectus filed by the Company with the Securities and
Exchange Commission in connection with such Public Offering (the "Restricted
Period"), the undersigned will not, without the prior written consent of XX
Xxxxx, directly or indirectly, (i) offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
(including, without limitation, shares of Common Stock or any such securities
which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations promulgated under the Securities Act of 1933, as
the same may be amended or supplemented from time to time (such shares or
securities, the "Beneficially Owned Shares")) (ii) enter into any swap, hedge or
similar agreement or arrangement that transfers in whole or in part, the
economic risk of ownership of the Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable for Common Stock or (iii) engage
in any short selling of the Common Stock.
If (i) the Company issues an earnings release or material news or a
material event relating to the Company occurs during the last 17 days of the
Restricted Period, or (ii) prior to the expiration of the Restricted Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Restrictive Period, the restrictions imposed by
this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
The restrictions set forth herein shall not apply to any transfer or
disposition of: (a) any shares of Common Stock or any Beneficially Owned Shares
that were acquired by the undersigned after the completion of the Public
Offering in open market transactions; (b) any shares of
II - 2
Common Stock, any Beneficially Owned Shares or securities convertible into or
exercisable or exchangeable for Common Stock as a bona fide gift or gifts; (c)
any shares of Common Stock, any Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable for Common Stock as a
distribution to partners, members or stockholders of the undersigned; (d) any
shares of Common Stock, any Beneficially Owned Shares or securities convertible
into or exercisable or exchangeable for Common Stock to any trust, family
limited partnership or family limited liability company for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned,
provided that any such transfer shall not involve a disposition for value; or
(e) any shares of Common Stock, any Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable for Common Stock by will or
intestacy to the undersigned's legal representative, heir or immediate family;
PROVIDED THAT, in each of the cases (b)-(e), each and every transferee,
distributee or donee thereof agrees in writing, in form satisfactory to XX
Xxxxx, to be bound by the terms of this Agreement, a copy of which will be
delivered to XX Xxxxx. For purposes of this agreement, "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin. Except in the case of any transfer or disposition pursuant to provision
(a) above, any person to whom shares of Common Stock or Beneficially Owned
Shares are transferred from the undersigned shall be bound by the terms of this
Agreement.
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the Restricted Period, any and all rights, if any, to request or
demand registration pursuant to the Securities Act of 1933, as amended, of any
shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock that are registered in the name of the undersigned
or that are Beneficially Owned Shares. In order to enable the aforesaid
covenants to be enforced, the undersigned hereby consents to the placing of
legends and/or stop transfer orders with the transfer agent of the Common Stock
with respect to any shares of Common Stock or Beneficially Owned Shares.
Notwithstanding anything herein to the contrary, if the closing of the
Public Offering has not occurred prior to March 31, 2006, this Agreement shall
be of no further force or effect.
By:
----------------------------
Name:
Title:
EXHIBIT III
, 2005
XX Xxxxx & Co., LLC
Pacific Growth Equities, LLC
Lazard Capital Markets LLC
X.X. Xxxxxxx & Sons, Inc.
As representatives of the
several Underwriters
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re:
CombinatoRx, Incorporated Public Offering of Common Stock
---------------------------------------------------------
Dear Sirs:
In order to induce XX Xxxxx & Co., LLC ("XX Xxxxx") and Pacific Growth
Equities, LLC, Lazard Capital Markets LLC and X.X. Xxxxxxx & Sons, Inc.
(together with XX Xxxxx, the "Representatives"), to enter in to a certain
underwriting agreement with
CombinatoRx, Incorporated, a Delaware corporation
(the "Company"), with respect to the public offering (the "Public Offering") of
shares of the Company's Common Stock, par value $0.001 per share ("Common
Stock"), the undersigned hereby agrees that for a period of 180 days following
the date of the final prospectus filed by the Company with the Securities and
Exchange Commission in connection with such Public Offering (the "Restricted
Period"), the undersigned will not, without the prior written consent of XX
Xxxxx, directly or indirectly, (i) offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
(including, without limitation, shares of Common Stock or any such securities
which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations promulgated under the Securities Act of 1933, as
the same may be amended or supplemented from time to time (such shares or
securities, the "Beneficially Owned Shares")) (ii) enter into any swap, hedge or
similar agreement or arrangement that transfers in whole or in part, the
economic risk of ownership of the Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable for Common Stock or (iii) engage
in any short selling of the Common Stock.
If (i) the Company issues an earnings release or material news or a
material event relating to the Company occurs during the last 17 days of the
Restricted Period, or (ii) prior to the expiration of the Restricted Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Restrictive Period, the restrictions imposed by
this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
2,286 of the shares of Common Stock owned by the undersigned are excluded
from the restrictions set forth in this Agreement.
III - 2
The restrictions set forth herein shall not apply to any transfer or
disposition of any shares of Common Stock, any Beneficially Owned Shares or
securities convertible into or exercisable or exchangeable for Common Stock: (a)
as a bona fide gift or gifts; (b) to any trust, family limited partnership or
family limited liability company for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that any such
transfer shall not involve a disposition for value; or (c) by will or intestacy
to the undersigned's legal representative, heir or immediate family; PROVIDED
THAT, in each case, each and every transferee, distributee or donee thereof
agrees in writing, in form satisfactory to XX Xxxxx, to be bound by the terms of
this Agreement, a copy of which will be delivered to XX Xxxxx. For purposes of
this agreement, "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin. Anything contained
herein to the contrary notwithstanding, any person to whom shares of Common
Stock, securities convertible into or exercisable or exchangeable for Common
Stock or Beneficially Owned Shares are transferred from the undersigned shall be
bound by the terms of this Agreement.
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the Restricted Period, any and all rights, if any, to request or
demand registration pursuant to the Securities Act of 1933, as amended, of any
shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock that are registered in the name of the undersigned
or that are Beneficially Owned Shares. In order to enable the aforesaid
covenants to be enforced, the undersigned hereby consents to the placing of
legends and/or stop transfer orders with the transfer agent of the Common Stock
with respect to any shares of Common Stock or Beneficially Owned Shares.
Notwithstanding anything herein to the contrary, if the closing of the
Public Offering has not occurred prior to March 31, 2006, this Agreement shall
be of no further force or effect.
By:
-----------------------------
Name:
Title:
EXHIBIT IV
Form of Legal Opinion of Company Counsel
Opinion of Ropes & Xxxx LLP, counsel for the Company, to be delivered
pursuant to Section 6(d) of the
Underwriting Agreement:
EXHIBIT V
Xxxxx & Xxxxxx LLP Opinion
Opinion of Xxxxx & Elbing LLP, patent counsel for the Company,
to be delivered pursuant to Section 6(e) of the
Underwriting Agreement:
EXHIBIT VI
Xxxxxxxx & Sunstein LLP Opinion
Opinion of Xxxxxxxx & Sunstein LLP, patent counsel for the
Company, to be delivered pursuant to Section 6(f) of the
Underwriting Agreement:
EXHIBIT VII
Drew & Xxxxxx LLC Opinion
Opinion of Drew & Xxxxxx LLC, Singapore counsel to the Company and its
subsidiary, to be delivered pursuant to Section 6(g) of the
Underwriting
Agreement:
