GTx, Inc. 10,000,000 Shares 1 Common Stock ($0.001 par value) Underwriting Agreement
Exhibit 1.1
Execution Copy
GTx, Inc.
10,000,000 Shares 1
Common Stock
($0.001 par value)
Common Stock
($0.001 par value)
Citigroup Global Markets Inc.
As Representative of the several Underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the several Underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GTx, Inc., a corporation organized under the laws of Delaware (the “Company”), proposes to
sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom
you (the “Representative”) are acting as representative, the number of shares of common stock,
$0.001 par value (“Common Stock”), of the Company set forth in Schedule I hereto (the
“Securities”) (said shares to be issued and sold by the Company being hereinafter called the
“Underwritten Securities”). The Company also proposes to grant to the Underwriters an option to
purchase up to the number of additional shares of Common Stock set forth in Schedule I
hereto to cover over-allotments, if any (the “Option Securities”; the Option Securities, together
with the Underwritten Securities, being hereinafter called the “Securities”). To the extent there
are no additional Underwriters listed on Schedule II other than you, the term
Representative as used herein shall mean you, as Underwriter, and the terms Representative and
Underwriter shall mean either the singular or plural as the context requires. Any reference herein
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 20 hereof.
| 1 | Plus an option to purchase from the Company, up to 1,500,000 additional Securities to cover over-allotments. |
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement (the file number of which is
set forth in Schedule I hereto) on Form S-3, including a related Base Prospectus,
for registration under the Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the Execution Time,
has become effective. The Company may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Securities, each of which has previously been
furnished to you. The Company will file with the Commission a final prospectus supplement
relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act, and, except to the extent the
Representative shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the requirements set
forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was
not earlier than the date three years before the Execution Time. The Company is eligible to
offer and sell securities under the Registration Statement (including the offer and sale of
the Securities) without reliance on General Instruction I.B.6 of Form S-3.
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act and the Exchange
Act; on each Effective Date and at the Execution Time, the Registration Statement did not
and will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Final Prospectus (together with any supplement thereto) will
not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representative specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof.
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(c) (i) The Disclosure Package and (ii) each electronic road show when taken together
as a whole with the Disclosure Package, does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(f) The Company has the full right, power and authority to enter into this Agreement
and to perform and to discharge its obligations hereunder; and this Agreement has been duly
authorized, executed and delivered by the Company, and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms.
(g) Neither the Company nor, to the Company’s knowledge, any of the Company’s officers,
directors or 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.
(h) The Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock
is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq
Global Market (“Nasdaq GM”), and the Company has taken no action designed to, or reasonably
likely to have the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the Nasdaq
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GM, nor has the Company received any notification that the Commission or the Financial
Industry Regulatory Authority, Inc. (“FINRA”) is contemplating terminating such registration
or listing. Except as contemplated by Section 6(k), no consent, approval, authorization or
order of, or filing, notification or registration with, the Nasdaq GM is required for the
listing and trading of the Securities on the Nasdaq GM.
(i) The Company has not taken any action in the public offering of the Securities by
the Underwriters that would require approval of the shareholders of the Company under the
rules and regulations of Nasdaq (including Rule 5635 of the Nasdaq Marketplace Rules) in
order for the Company to issue and deliver to the Underwriters the Securities; and the
Company is in material compliance with all applicable corporate governance requirements set
forth in the Nasdaq Global Marketplace Rules.
(j) The Company has not sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final 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 labor dispute or court or governmental action, order
or decree; and, since the respective dates as of which information is given in the Final
Prospectus and Disclosure Package, there has not been any change in the capital stock (other
than as a result of the grant of stock pursuant to the Company’s current stock option plans
described in the Final Prospectus and Disclosure Package, the crediting to and distributions
from director stock accounts under the Company’s directors’ deferred compensation plan, and
the cancellation or exercise of stock options granted pursuant to the Company’s current
stock option plans described in the Final Prospectus and Disclosure Package), short-term
debt or long-term debt of the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general affairs,
management, financial position, assets, business, prospects, stockholders’ equity or results
of operations of the Company or impair in any material respect the ability of the Company to
perform its obligations under this Agreement or to consummate any transactions contemplated
by this Agreement (any such effect as described in this Section 1(j), a “Material Adverse
Effect”), otherwise than as set forth or contemplated in the Final Prospectus and Disclosure
Package.
(k) The Company does not own any real property; the Company has good and marketable
title to all tangible personal property owned by it, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Final Prospectus and
Disclosure Package or such as do not materially affect the value of such property and do not
interfere with the use made of such property by the Company; and any real property and
buildings held under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as would not result in a Material Adverse Effect.
(l) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and corporate authority to
own its properties and conduct its business as described in the Final Prospectus and
Disclosure Package, and has been duly qualified as a foreign corporation
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for the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification, except where the failure to be so qualified would not result in a
Material Adverse Effect.
(m) The Company does not control directly or indirectly or have any direct or indirect
equity participation or similar interest in any corporation, partnership, limited liability
company, joint venture, trust or other business association or entity.
(n) The Company has an authorized capitalization as set forth in the Final Prospectus
and Disclosure Package, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-assessable.
(o) The Securities to be issued and sold by the Company to the Underwriters hereunder
have 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 nonassessable
and free of any preemptive, registration or similar rights (other than as have previously
been waived) and will conform to the description thereof contained in the Final Prospectus
and Disclosure Package.
(p) The issue and sale of the Securities by the Company and the compliance by the
Company with all of the provisions of this Agreement, and the consummation of the
transactions contemplated herein will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, other than any conflict, breach or violation that would
not have a Material Adverse Effect, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement, except such
as have been, or will have been prior to the Closing Date, obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the offering and sale of the
Securities.
(q) The Company is not (i) in violation of its Certificate of Incorporation or By-laws
or (ii) in default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except in the case of clause (ii), any default that would not have
a Material Adverse Effect.
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(r) Neither the Company nor, to the knowledge of the Company, any of its affiliates
(within the meaning of FINRA Rule 5121(f)(1)) directly or indirectly controls, is controlled
by, or is under common control with, or is an associated person (within the meaning of
Article I, Paragraph (rr) of the By-laws of FINRA) of, any member firm of FINRA.
(s) The statements set forth in the Final Prospectus under the caption “Description of
Capital Stock”, insofar as they purport to constitute a summary of the terms of the
Securities, and the statements incorporated by reference into the Final Prospectus from the
Company’s Annual Report on Form 10-K for the year ended December 31, 2010 filed with the
Commission, under the captions “Business — Licenses and Collaborative Relationships, —
Manufacturing, — Intellectual Property, and — Government Regulation,” and the statements
set forth in the Prospectus under the captions “Prospectus Supplement Summary — Our
Business,” “Risk Factors — Risks Related to Our Dependence on Third Parties —Use of
third-party manufacturers may increase the risk that we will not have adequate supplies of
our product candidates or products, — Risks Related to Our Intellectual Property. — If we
lose our license from the University of Tennessee Research Foundation, or UTRF, we may be
unable to continue a substantial part of our business, — If some or all of our, or our
licensors’, patents expire or are invalidated or are found to be unenforceable, or if some
or all of our patent applications do not result in issued patents or result in patents with
narrow, overbroad, or unenforceable claims, or claims that are not supported in regard to
written description or enablement by the specification, or if we are prevented from
asserting that the claims of an issued patent cover a product of a third party, we may be
subject to competition from third parties with products in the same class of products as our
product candidates or products with the same active pharmaceutical ingredients as our
product candidates, —Risks Related to Commercialization — If we and/or any potential
future collaborators are unable to obtain reimbursement or experience a reduction in
reimbursement from third-party payors for products we sell, our revenues and prospects for
profitability will suffer, — Risks Related to This Offering and Our Common Stock —
Anti-takeover provisions in our charter documents and under Delaware law could make an
acquisition of us, which may be beneficial to our stockholders, more difficult and may
prevent attempts by our stockholders to replace or remove our current management, and — If
there are substantial sales of our common stock, the market price of our common stock could
drop substantially, even if our business is doing well,” insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate, complete and
fair.
(t) There are no legal or governmental proceedings pending to which the Company is a
party or of which any property of the Company is the subject, which, if determined adversely
to the Company, would individually or in the aggregate have a Material Adverse Effect; and,
to the Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(u) The Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company”, as such term is defined in the Investment
Company Act of 1940, as amended and the rules and regulations of the Commission promulgated
thereunder.
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(v) The Company does not do business with the government of Cuba nor, to the Company’s
knowledge, with any person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes.
(w) Ernst & Young LLP, who have audited certain financial statements and related
schedules included or incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus, and have audited the Company’s internal control
over financial reporting, is an independent registered public accounting firm as required by
the Act and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
Ernst & Young LLP have not been engaged by the Company to perform any “prohibited
activities” (as defined in Section 10A of the Exchange Act).
(x) The financial statements of the Company (together with the related notes thereto)
included or incorporated by reference in the Registration Statement, Final Prospectus and
the Disclosure Package as amended or supplemented (i) fairly present in all material
respects the financial condition and results of the operations and cash flows of the Company
as of the respective dates indicated and for the respective periods specified, (ii) complied
as to form in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect thereto (including, without
limitation, Regulation S-X) and (iii) have been prepared in accordance with generally
accepted accounting principles in the United States applied on a consistent basis during the
periods and at the dates involved (except as may be indicated in the notes thereto); the
summary and selected financial data included or incorporated by reference in the
Registration Statement, Final Prospectus and the Disclosure Package as amended or
supplemented fairly present the information shown therein and have been compiled on a
consistent basis with that of the audited financial information incorporated by reference in
the Registration Statement, Final Prospectus and the Disclosure Package. There is no pro
forma or as adjusted financial information which is required to be included in the
Registration Statement, Final Prospectus or the Disclosure Package, or a document
incorporated by reference therein in accordance with the Act which has not been included or
incorporated as so required. The pro forma and pro forma as adjusted financial information
and the related notes included or incorporated by reference in the Registration Statement,
Final Prospectus and the Disclosure Package, if any, have been properly compiled and
prepared in accordance with the applicable requirements of the Act and present fairly the
information shown therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(y) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles; the Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control
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over financial reporting; there has been no fraud, whether or not material, that
involves management or other employees who have a significant role in the Company’s internal
control over financial reporting; since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement, Final Prospectus and
the Disclosure Package, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(z) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company is made known to the Company’s principal executive
officer and principal financial officer by others within those entities; such disclosure
controls and procedures are effective.
(aa) The Company is in compliance in all material respects with all applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated by
the Commission thereunder (the “Xxxxxxxx-Xxxxx Act”).
(bb) The Company owns or has valid, binding and enforceable licenses or other rights to
use the patents and patent applications, copyrights, trademarks, trade names, service marks,
service names, and know-how (including trade secrets and other unpatented proprietary
intellectual property rights) that are necessary or used in any material respect to conduct
its business in the manner in which it is described as being conducted and in the manner in
which it is contemplated to be conducted as set forth in the Registration Statement, Final
Prospectus and the Disclosure Package as amended or supplemented with respect to Company’s
product candidates identified in the table set forth under the caption “Product Candidates”
from the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2011 (the “Product Candidates”) and the Company’s commercial product FARESTON® (toremifene
citrate) 60 mg tablets (together with the Product Candidates, the “Products”) (such rights
are referred to herein collectively as the “Company Intellectual Property”); the Company
owns or possesses licenses or other rights to use the patents and patent applications set
forth on the schedule made available to the Underwriters or their counsel prior to the date
hereof (the “Patent Schedule”) (the patents and patent applications set forth on the Patent
Schedule that disclose or claim the Product Candidates are referred to herein collectively
as the “Company Patents”) that are necessary or used in any material respect to conduct its
business in the manner in which it is described as being conducted and in the manner in
which it is contemplated to be conducted as set forth in the Registration Statement, the
Disclosure Package and the Final Prospectus as amended or supplemented; other than as
disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus as
amended or supplemented, the Company has exclusive rights to develop, market and
commercialize the Products as disclosed in the Registration Statement, the Disclosure
Package and the Final Prospectus as amended or supplemented; to the Company’s knowledge,
there are no published patents, patent applications, articles or other prior art references
or other facts or circumstances that would reasonably be likely to adversely affect the
validity or enforceability of any Company Patent in any material way, nor is
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any material fact known by the Company with respect to patent applications within the
Company Patents that would preclude the issuance of patents with respect to such
applications or would render such patents invalid or unenforceable; the Company is not
obligated to pay a royalty, grant a license, or provide other consideration to any third
party in connection with the Products other than as disclosed in the Registration Statement,
the Disclosure Package and the Final Prospectus as amended or supplemented; the Company has
not received any notice of infringement or conflict with (and the Company is not aware of
any infringement or conflict with) the rights of others with respect to the Products as used
in connection with its business as currently conducted or as currently contemplated to be
conducted as described in the Registration Statement, the Disclosure Package and the Final
Prospectus as amended or supplemented; there are no pending, nor has there been any notice
of any threatened, actions, suits, proceedings, claims or allegations by others that the
Company is or will be infringing any patent, trade secret, trademark, service xxxx,
copyright or other proprietary intellectual property rights through the manufacture, use or
sale of any Products; the manufacture, use or sale of the Products, described in the
Registration Statement, the Disclosure Package and the Final Prospectus as amended or
supplemented as being under development and other activities of the Company referred to in
the Registration Statement, the Disclosure Package and the Final Prospectus as amended or
supplemented do not, and to the Company’s knowledge, will not, infringe or conflict with any
patent of any third party in a manner which could reasonably be expected to have a Material
Adverse Effect; the Company has not been notified of any material inventorship challenges or
any interference proceeding having been declared or provoked with respect to the Company
Patents, nor is any material fact known by the Company which fact is reasonably likely to
result in any material inventorship challenge or interference proceeding with respect to
such Company Patents; to the Company’s knowledge, no third party has infringed or
misappropriated, and no third party is currently infringing or misappropriating the Company
Intellectual Property in any material respect; except as described in the Registration
Statement, the Disclosure Package and the Final Prospectus as amended or supplemented and
for any rights of the United States government pursuant to 35 U.S.C. § 200 et seq. relating
to a Product, no third party, including any academic institution or any other government
entity, possesses rights to the Company Patents which, if exercised, could enable such party
to develop products competitive to a Product or could reasonably be expected to have a
Material Adverse Effect; except as described in the Registration Statement, the Disclosure
Package and the Final Prospectus as amended or supplemented, the Company is not in material
breach of, and has complied in all material respects with all terms of, any license
agreement to which it is a party that covers technology necessary to conduct or used in any
material respect in the conduct of the Company’s business in the manner in which it is
described as being conducted and in the manner in which it is contemplated to be conducted
as set forth in the Registration Statement, the Disclosure Package and the Final Prospectus
as amended or supplemented; there are no license agreements to which the Company is a party
that are material to the Company Patents or to the Company’s proprietary information
included in the Company Intellectual Property other than those described in the Registration
Statement, the Disclosure Package and the Final Prospectus as amended or supplemented; no
Company employee is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or
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subject to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of such employee’s best efforts to promote the interest of the
Company or that would conflict with the Company’s business; none of the execution and
delivery of this Agreement, the carrying on of the Company’s business by the employees of
the Company, and the conduct of the Company’s business as proposed, will conflict with or
result in a breach of terms, conditions, or provisions of, or constitute a default under,
any contract, covenant or instrument under which any such employee is now obligated; and it
is not and will not be necessary to use any inventions, trade secrets or proprietary
information of any of its consultants, or its employees (or persons it currently intends to
hire) made prior to their employment by the Company, except for technology that is licensed
to or owned by the Company.
(cc) The Company has complied with the required duty of candor and good faith in
dealing with the United States Patent and Trademark Office (the “PTO”) with respect to the
Company Patents, and to the Company’s knowledge, all individuals to whom the duty of candor
and good faith applies with respect to the Company Patents have complied with such duty,
including the duty to disclose to the PTO all information believed to be material to the
patentability of the Company Patents and pending U.S. patent applications within Company
Patents; the Company and the University of Tennessee Research Foundation (“UTRF”) are
identified in the records of the PTO as the holder of record of the U.S. patents and patent
applications of the Company Patents as set forth in the Patent Schedule with respect to the
Products; the Company and UTRF are similarly listed in the records of corresponding foreign
agencies with respect to the foreign counterparts of the Company Patents with respect to the
Products; except for the rights of UTRF, Orion, and The Ohio State University (“OSU”) that
are described in the Registration Statement, the Disclosure Package and the Final Prospectus
as amended or supplemented, the rights of the OSU solely to receive payments from UTRF with
respect to certain patent applications and related patents and to utilize certain of the
Company Patents for academic, non-commercial purposes, the rights of the United States
government pursuant to 35 U.S.C. § 200 et seq. relating to a Product Candidate, and the
nonexclusive rights that the Company granted to third party contractors to perform
activities on the Company’s behalf to develop Product Candidates, no other entity or
individual has any right, title or interest in the Company Patents; there are no legal or
governmental proceedings pending relating to Company Patents other than PTO or World
Intellectual Property Organization (“WIPO”) (or patent offices in other jurisdictions)
review of pending applications for patents, and, other than PTO or WIPO (or patent offices
in other jurisdictions) review of pending applications for patents, to the Company’s
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
others, and the Company is not aware of any fact that is likely to result in any such
proceeding; and the Company is diligently prosecuting, and shall continue to diligently
prosecute, claims in the patent applications within the Company Patents which claim Products
or methods related to their manufacture and use.
(dd) The Company possesses all registrations, approvals, certificates, authorizations
and permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct its business as described in the Registration Statement,
the Disclosure Package and the Final Prospectus as amended or supplemented,
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including without limitation, all such registrations, approvals, certificates,
authorizations and permits required by the United States Food and Drug Administration (the
“FDA”) or any other federal, state, local or foreign agencies or bodies engaged in the
regulation of pharmaceuticals or biohazardous substances or materials, except where the
failure to possess such registrations, approvals, certificates, authorizations and permits,
singly or in the aggregate, would not have a Material Adverse Effect; and the Company has
not received any notice of proceedings relating to, and there are no facts or circumstances,
including without limitation facts or circumstances relating to the withdrawal, revocation,
suspension, modification or termination of any registration, approval, certificate,
authorization or permit held by others, known to the Company that could lead to, the
withdrawal, revocation, suspension, modification or termination of any such registration,
approval, certificate, authorization or permit, which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result in a Material Adverse
Effect.
(ee) The Company and, to the Company’s knowledge, others who perform services on the
Company’s behalf have been and are in compliance with all applicable federal, state, local
and foreign laws, rules, regulations, standards, orders and decrees governing their
respective businesses, including without limitation, all regulations promulgated by the FDA
or any other federal, state, local or foreign agencies or bodies engaged in the regulation
of pharmaceuticals or biohazardous substances or materials, except where noncompliance would
not, singly or in the aggregate, have a Material Adverse Effect; and the Company has not
received any notice citing action or inaction by the Company or others who perform services
on the Company’s behalf that would constitute non-compliance with any applicable federal,
state, local or foreign laws, rules, regulations or standards.
(ff) The tests and preclinical and clinical studies conducted by or on behalf of the
Company that are described in the Registration Statement, the Disclosure Package and the
Final Prospectus as amended or supplemented were and, if still pending, are being, conducted
in all material respects in accordance with experimental protocols, procedures and controls
generally used by qualified experts in the preclinical and clinical study of new drugs, and
laws and regulations; the descriptions of the tests and preclinical and clinical studies,
and results thereof, conducted by or on behalf of the Company contained in the Registration
Statement, the Disclosure Package and the Final Prospectus as amended or supplemented are
accurate in all material respects; the Company has not received any written notice or
correspondence from the FDA or any foreign, state or local governmental body exercising
comparable authority or any Institutional Review Board or comparable authority requiring the
termination, suspension, material modification or clinical hold of any tests or preclinical
or clinical studies conducted by or on behalf of the Company, which termination, suspension,
material modification or clinical hold would reasonably be expected to have a Material
Adverse Effect; and the Company has not received any written notices or correspondence from
others concerning the termination, suspension, material modification or clinical hold of any
tests or preclinical or clinical studies conducted by others on any active ingredient
contained in the existing products of the Company or the products described in the
Registration Statement, the Disclosure Package and the Final Prospectus as amended or
supplemented as being under
11
development, which termination, suspension, material modification or clinical hold
would reasonably be expected to have a Material Adverse Effect.
(gg) The Company has all consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all foreign, federal,
state, local and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner in which it is described in the
Registration Statement, the Disclosure Package and the Final Prospectus as amended or
supplemented, except for such consents, authorizations, approvals, orders, certificates,
permits, declarations and filings the failure of which to have, maintain or make would not
have a Material Adverse Effect; the Company has not received any notice of proceedings
relating to the revocation or modification of any such consent, authorization, approval,
order, certificate or permit; and the Company is in compliance with all applicable foreign,
federal, state and local laws and regulations, except for any noncompliance that, singly or
in the aggregate, would not have a Material Adverse Effect.
(hh) There are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to include any
securities of the Company with the Securities registered pursuant to the Registration
Statement, except as otherwise disclosed in the Registration Statement, the Disclosure
Package and the Final Prospectus as amended or supplemented or as have been waived in
writing by such person.
(ii) The Company (i) is in compliance with any and all applicable foreign, federal,
state and local laws, regulations and common law standards of conduct relating to the
protection of human health and safety, the environment or hazardous or toxic substances,
chemicals, wastes, pollutants and contaminants (“Environmental Laws”), (ii) has received all
permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct its businesses as described in the Registration Statement, the Disclosure Package
and the Final Prospectus as amended or supplemented, (iii) is in compliance with all terms
and conditions of any such permit, license or approval, (iv) is not subject to any liability
under any Environmental Law for the release or disposal of any substance regulated pursuant
to any Environmental Law, (v) has not received any claim, notice or demand indicating that
it may be in violation of, or subject to liability or costs under, any Environmental Law and
(vi) is not subject to any order, decree, injunction or agreement with any governmental
authority or any third party concerning obligations or liabilities relating to any
Environmental Law, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals or liabilities, claims, orders or
agreement would not, singly or in the aggregate, have a Material Adverse Effect.
(jj) The Company has reasonably concluded that the costs and liabilities associated
with the effect of Environmental Laws on the business, operations and
12
properties of the Company (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with Environmental
Laws, or any permit, license or approval, any related constraints on operating activities
and any potential liabilities to third parties) would not, singly or in the aggregate, have
a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
(kk) The Company is not involved in any labor dispute nor, to the Company’s knowledge,
is any such dispute threatened; and the Company is not aware that (i) any executive, key
employee, key consultant or significant group of employees or consultants of the Company
plans to terminate his or her employment or consulting arrangement with the Company or (ii)
any such executive, key employee or key consultant is subject to any noncompete,
nondisclosure, confidentiality, employment, consulting or similar agreement that would be
violated by the present or proposed business activities of the Company.
(ll) The Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the business in
which the Company is engaged, the Company has not been refused any insurance coverage sought
or applied for; and the Company does not have any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect.
(mm) Each material contract, agreement and license filed as an exhibit to the
Registration Statement to which the Company is currently bound is legal, valid, binding,
enforceable in accordance with its terms and in full force and effect against the Company
and, to the Company’s knowledge, each other party thereto; except as described in the
Registration Statement, the Disclosure Package and the Final Prospectus as amended or
supplemented, neither the Company nor, to the Company’s knowledge, any other party, is in
material breach or default with respect to any such contract, agreement and license, and, to
the Company’s knowledge, no event has occurred which with notice or lapse of time would
constitute a material breach or default, or permit termination, modification, or
acceleration, under any such contract, agreement or license; and to the Company’s knowledge,
no party has repudiated any material provision of any such contract, agreement or license.
(nn) The statistical and market-related data included in the Registration Statement,
the Disclosure Package and the Final Prospectus as amended or supplemented are based on or
derived from sources which the Company reasonably and in good faith believes are reliable
and accurate, and such data agree with the sources from which they are derived.
(oo) None of the following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations
and published interpretations thereunder with respect to a Plan, determined without regard
to any waiver of such obligations or extension of any
13
amortization period; (ii) an audit or investigation by the Internal Revenue Service,
the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal
or state governmental agency or any foreign regulatory agency with respect to the employment
or compensation of employees by any of the Company that could have a Material Adverse
Effect; (iii) any breach of any contractual obligation, or any violation of law or
applicable qualification standards, with respect to the employment or compensation of
employees by the Company that could have a Material Adverse Effect. None of the following
events has occurred or, to the knowledge of the Company, is reasonably likely to occur: (i)
a material increase in the aggregate amount of contributions required to be made to all
Plans in the current fiscal year of the Company compared to the amount of such contributions
made in the most recently completed fiscal year of the Company; (ii) a material increase in
the “accumulated post-retirement benefit obligations” (within the meaning of Statement of
Financial Accounting Standards 106) of the Company compared to the amount of such
obligations in the most recently completed fiscal year of the Company; (iii) any event or
condition giving rise to a liability under Title IV of ERISA that could have a Material
Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees
of the Company related to their employment that could have a Material Adverse Effect. For
purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3)
of ERISA) subject to Title IV of ERISA with respect to which the Company may have any
liability.
(pp) The Company has filed all tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto)) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as would not have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
(qq) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(rr) Neither the Company nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and the Company and, to the
knowledge of the Company, its affiliates have conducted their
14
businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(ss) The operations of the Company are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements and the money
laundering statutes and the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Company with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
(tt) Neither the Company nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC.
(uu) The Company satisfies the eligibility requirements in existence immediately prior
to October 21, 1992 for the use of a registration statement on Form S-3 for the offering of
the Securities.
Any certificate signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the number of Underwritten Securities set
forth opposite such Underwriter’s name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several Underwriters
to purchase, severally and not jointly, up to the number of Option Securities set forth in
Schedule I hereto at the same purchase price per share as the Underwriters shall pay
for the Underwritten Securities, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Underwritten Securities but not
payable on the Option Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time on or before
15
the 30th day after the date of the Final Prospectus upon written or telegraphic notice
by the Representative to the Company setting forth the number of Option Securities as to
which the several Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall be the same percentage
of the total number of Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you
in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised
on or before the third Business Day immediately preceding the Closing Date) shall be made on the
date and at the time specified in Schedule I hereto or at such time on such later date not
more than three Business Days after the foregoing date as the Representative shall designate, which
date and time may be postponed by agreement between the Representative and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the Securities shall be made to the Representative
for the respective accounts of the several Underwriters against payment by the several Underwriters
through the Representative of the purchase price thereof to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representative shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Company will deliver the Option Securities (at the
expense of the Company) to the Representative, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the
date specified by the Representative (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representative of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the Company.
If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to
the Representative on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your review
16
prior to filing and will not file any such proposed amendment or supplement to which
you reasonably object. The Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed in a form approved by the Representative with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of such timely
filing. The Company will promptly advise the Representative (i) when the Final Prospectus,
and any supplement thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (ii) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, (iii) of, prior to
termination of the offering of the Securities, any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Final Prospectus or for any additional information, (iv) of,
prior to termination of the offering of the Securities, the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an amendment to
the Registration Statement or a new registration statement and using its best efforts to
have such amendment or new registration statement declared effective as soon as practicable.
(b) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representative so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act, including in connection with use or
delivery of the Final Prospectus, the Company promptly will (i) notify the Representative of
any such event, (ii) prepare and file with the Commission,
17
subject to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as practicable in order
to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security
holders and to the Representative an earnings statement or statements of the Company which
will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and any supplement thereto as the Representative may reasonably
request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representative may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representative, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433; provided that the
prior written consent of the parties hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Schedule III hereto and any electronic
road show. Any such free writing prospectus consented to by the Representative or the
Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the
Commission, legending and record keeping.
18
(h) The Company will not, without the prior written consent of Citigroup Global Markets
Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or indirectly, including
the filing (or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange Act, any other
shares of Common Stock or any securities convertible into, or exercisable, or exchangeable
for, shares of Common Stock; or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto,
provided, however, that the foregoing restrictions shall not in any event
apply to: (i) the issuance of Common Stock, options to acquire Common Stock or other equity
awards pursuant to the Company’s employee benefit plans, stock option plans, directors’
deferred compensation plan or other equity compensation plans (as such plans are in
existence on the date hereof and described in the Disclosure Package and the Final
Prospectus), and the issuance of Common Stock pursuant to the valid exercises of options,
warrants or rights outstanding on the date hereof; (ii) the issuance of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock issued in
connection with strategic transactions involving the Company and other entities, including
without limitation (A) joint ventures, manufacturing, marketing or distribution arrangements
or (B) technology transfers or development arrangements; (iii) the filing by the Company of
any registration statement on Form S-8 relating to employee or director benefit plans; or
(iv) the filing by the Company of any registration statement the Company is contractually
obligated to file (the “Oracle Registration Statement”) pursuant to that certain Amended and
Restated Registration Rights Agreement, dated as of August 7, 2003 (the “Amended RRA”), as
amended, between the Company and Oracle Partners, L.P.; however, the Company agrees that it
shall not file with the Commission such Oracle Registration Statement prior to the last day
on which the Company is permitted to file such Oracle Registration Statement under the terms
of the Amended RRA. Notwithstanding the foregoing, if (x) during the last 17 days of the
restricted period the Company issues an earnings release or material news or a material
event relating to the Company occurs, or (y) 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 restricted period, the restrictions imposed in this clause
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
Company will provide the Representative and any co-managers and each individual subject to
the restricted period pursuant to the lockup letters described in Section 6(l) with prior
notice of any such announcement that gives rise to an extension of the restricted period.
(i) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
19
(j) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the Nasdaq GM; (vi) any registration or qualification
of the Securities for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable and reasonably-documented fees and expenses
of counsel for the Underwriters relating to such registration and qualification); (vii) any
filings required to be made with FINRA (including filing fees and the reasonable and
reasonably-documented fees and expenses of counsel for the Underwriters relating to such
filings); (viii) the transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company; and (x) all other
costs and expenses incident to the performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, 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 the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); any other material required to be filed by
the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop
order suspending the effectiveness of the Registration Statement or any notice objecting to
its use shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx LLP, counsel for the Company, to
have furnished to the Representative their opinion and negative
20
assurances statement, dated the Closing Date and addressed to the Representative, in
each case in form and substance reasonably satisfactory to counsel to the Underwriters.
(c) The Company shall have requested and caused Bass, Xxxxx & Xxxx PLC, counsel for the
Company, to have furnished to the Representative their opinion, dated the Closing Date and
addressed to the Representative, in form and substance reasonably satisfactory to counsel to
the Underwriters.
(d) The Company shall have requested and caused Xxxxx Xxxxx Zedek Xxxxxx LLP, special
patent counsel for the Company, to have furnished to the Representative their opinion, dated
the Closing Date and addressed to the Representative, in form and substance reasonably
satisfactory to counsel to the Underwriters.
(e) The Company shall have requested and caused Ropes & Xxxx LLP, special regulatory
counsel for the Company, to have furnished to the Representative their opinion, dated the
Closing Date and addressed to the Representative, in form and substance reasonably
satisfactory to counsel to the Underwriters.
(f) The Representative shall have received from Xxxxxxx Procter LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representative, with respect to the issuance and sale of the Securities, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representative a certificate of the
Company, signed by the Chairman of the Board or the Chief Executive Officer and the
principal financial or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the Registration
Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments
thereto, as well as each electronic road show used in connection with the offering of the
Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted and communicated to the Company or, to the Company’s
knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement
21
thereto), there has been no Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to
the Representative, at the Execution Time and at the Closing Date, letters, (which may refer
to letters previously delivered to the Representative), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance satisfactory to the
Representative, confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and that they have performed a review of the unaudited interim
financial information of the Company for the three-month period ended March 31, 2011, and as
at March 31, 2011 in accordance with Statement on Auditing Standards No. 100, and stating
that in their opinion the financial statements and schedules examined by them and included
or incorporated by reference in the Registration Statement, the Disclosure Package and the
Final Prospectus comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act, and containing such other statements and
information as is ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial and statistical information
included or incorporated by reference in the Registration Statement, the Disclosure Package
and the Final Prospectus.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in paragraph (g) of
this Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material
and adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto).
(j) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(k) The Company shall have filed a Notification: Listing of Additional Shares with the
Nasdaq GM with respect to the Securities and shall have received no objection thereto from
the Nasdaq GM.
22
(l) At the Execution Time, the Company shall have furnished to the Representative a
letter substantially in the form of Exhibit A hereto from each executive officer and
director of the Company addressed to the Representative.
(m) Prior to the Closing Date, the Company shall have furnished to the Representative
such further information, certificates (including a Secretary’s Certificate) and documents
as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Xxxxxxx Procter LLP, counsel for the Underwriters, at The New York Times Building, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all out of pocket expenses (including reasonable and
reasonably-documented fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any amendment
thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary
prospectus supplement relating to the Securities, the Final Prospectus, or any Issuer Free
Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any
23
legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representative specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the Representative
specifically for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth (i) in the last paragraph of
the cover page regarding delivery of the Securities and (ii) under the heading
“Underwriting”, (A) the list of Underwriters and their respective participation in the sale
of the Securities, (B) the sentences related to concessions and reallowances and (C) the
paragraph related to stabilization, syndicate covering transactions and penalty bids, in any
Preliminary Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice
at the indemnifying party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such
24
counsel with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively “Losses”) to which the Company and
one or more of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information provided 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. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d),
25
no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of Securities set
forth opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representative shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representative, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s
Common Stock shall have been suspended by the Commission or the Nasdaq GM or trading in securities
generally on the New York Stock Exchange or the Nasdaq GM shall have been suspended or limited or
minimum prices shall have been established on either of such exchanges, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the
Final Prospectus (exclusive of any amendment or supplement thereto).
26
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at 000 Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000,
Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No fiduciary duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the
Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Company on related or other matters). The Company agrees that
it will not claim that the Underwriters have rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
27
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the information set forth
under “Title, Purchase Price and Description of Securities” in Schedule I hereto,
(iv) the Issuer Free Writing Prospectuses, if any, identified in Schedule III
hereto, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
28
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement, as the case
may be.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B”, “Rule 433” and “Rule 462” refer to such rules under the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
29
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, GTx, Inc. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx, M.D., F.A.C.S. | |||
| Title: | Chief Executive Officer | |||
| The foregoing Agreement is | ||||
| hereby confirmed and accepted | ||||
| as of the date specified in | ||||
| Schedule I hereto. | ||||
Citigroup
|
Global Markets Inc. | |||
By:
|
/s/ Xxxx Xxxxxxxxx
|
|||
| Title: Director | ||||
| For itself and the other | ||||
| several Underwriters, if any, | ||||
| named in Schedule II to the | ||||
| foregoing Agreement. | ||||
30
SCHEDULE I
Underwriting Agreement dated June 23, 2011
Registration Statement No. 333-174396
Representative: Citigroup Global Markets Inc.
Title, Purchase Price and Description of Securities:
Title: Common Stock, par value $0.001 per share
Number of Underwritten Securities to be sold by the Company: 10,000,000
Number of Option Securities to be sold by the Company: 1,500,000
Price per share to Public: $4.75
Price per share to the Underwriters: $4.465
| Closing Date, Time and Location: | June 28, 2011, at 10:00 a.m. Eastern Time, at the officers of Xxxxxxx Procter LLP, counsel to the Underwriters, located at The New York Times Building, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx |
Date referred to in Section 5(h) after which
the Company may offer or sell securities issued
by the Company without the consent of the Representative: September 22, 2011
the Company may offer or sell securities issued
by the Company without the consent of the Representative: September 22, 2011
SCHEDULE II
| Number of Underwritten | ||||
| Underwriters | Securities to be Purchased | |||
Citigroup Global Markets Inc. |
5,500,000 | |||
Xxxxxxxxx & Company, Inc. |
4,500,000 | |||
Total |
10,000,000 | |||
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
None.
Exhibit A
Lock-Up Agreement
GTx, Inc.
Public Offering of Common Stock
Public Offering of Common Stock
June ___, 2011
Citigroup Global Markets Inc.
As Representative of the several Underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the several Underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”) between GTx, Inc., a Delaware corporation (the “Company”), and you
as representative of a group of Underwriters named therein, relating to an underwritten public
offering of Common Stock, $0.001 par value (the “Common Stock”), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of Citigroup Global Markets Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Securities and Exchange Commission promulgated thereunder with
respect to, any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any
such transaction, for a period of 90 days after the date of the Underwriting Agreement.
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 lock-up period, or (ii) prior to the
expiration of the lock-up period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the lock-up period, 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, unless Citigroup Global Markets Inc.
waives, in writing, such extension. The undersigned hereby acknowledges that the Company has
agreed in the Underwriting Agreement to provide written notice of any event that would result in an
extension of the lock-up period and agrees that any such notice properly delivered will be deemed
to have given to, and received by, the undersigned.
Notwithstanding the foregoing, the restrictions set forth herein shall not in any event apply
to: (x) the exercise, whether on a net exercise basis or otherwise, of stock options granted to the
undersigned by the Company and outstanding on the date hereof, provided that any common stock of
the Company acquired upon the exercise of such options (in the case of a net exercise, after giving
effect to the settlement of such net exercise) shall be subject to the restrictions imposed by this
agreement; or (y) transfers of shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for such capital stock (i) as a bona fide gift or gifts or
pledge, provided that the undersigned provides prior written notice of such gift or gifts or pledge
to Citigroup Global Markets Inc. and the donee or donees or pledgee or pledgees (as the case may
be) thereof agree to be bound by the restrictions set forth herein, (ii) either during the
undersigned’s lifetime or on death by will or intestacy to the undersigned’s immediate family or to
a trust, the beneficiaries of which are exclusively the undersigned and a member or members of the
undersigned’s immediate family, provided that the transferee thereof agrees to be bound by the
restrictions set forth herein, (iii) to the undersigned and/or any member of the immediate family
of the undersigned from or by a grantor retained annuity (or like-kind) trust which exists as of
the date hereof and was established for the direct or indirect benefit of the undersigned and/or
any member of the immediate family of the undersigned pursuant to the terms of such trust, provided
that such shares of capital stock of the Company or any securities convertible into or exercisable
or exchangeable for such capital stock are bound by the restrictions set forth herein upon
distribution from such trust or (iv) in the event of a default under a pledge which exists as of
the date hereof as security for a margin or loan account pursuant to the terms of such account.
[NOTE: TO BE INCLUDED IN LOCKUPS FOR X. XXXXXXXX AND X. XXXXXXXXX ONLY: In addition, the
undersigned may transfer, in open market sales, the shares of common stock of the Company that may
be acquired by the undersigned upon the exercise of outstanding stock options granted to the
undersigned by the Company that expire on or prior to October 1, 2011.]
In addition, if the undersigned is a partnership, limited liability company, trust,
corporation or similar entity, it may distribute the shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital stock to its partners,
members or stockholders; provided, however, that in each such case, prior to any such transfer,
each transferee shall execute a duplicate form of this letter agreement or execute an agreement,
reasonably satisfactory to Citigroup Global Markets Inc., pursuant to which each transferee shall
agree to receive and hold such shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for such capital stock subject to the provisions hereof, and
there shall be no
further transfer except in accordance with the provisions hereof. For the purposes of this
paragraph, “immediate family” shall mean spouse, domestic partner, lineal descendant (including
adopted children), father, mother, brother or sister of the transferor.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
| Yours very truly, | ||||
| [Signature of officer, director or | ||||
| major stockholder] | ||||
| Name: | ||||
| Address: | ||||
