EXHIBIT 1.1
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
UNDERWRITING AGREEMENT
Initial Public Offering S-1
MYOGEN, INC.
_____ Shares of Common Stock
Underwriting Agreement
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Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
CIBC World Markets Corp.
Lazard Freres & Co. LLC
As representatives of the several
Underwriters listed on Schedule 1 hereto
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Myogen, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters listed in Schedule 1 hereto (the
"Underwriters"), for whom Credit Suisse First Boston LLC and X.X. Xxxxxx
Securities Inc. are acting as representatives (the "Representatives"), an
aggregate of _______ shares of common stock, par value $.001 per share, of the
Company (the "Underwritten Shares") and, at the option of the Underwriters, up
to an additional ________ shares of common stock of the Company (the "Option
Shares"). The Underwritten Shares and the Option Shares are herein referred to
as the "Shares". The shares of common stock of the Company to be outstanding
after giving effect to the sale of the Shares are herein referred to as the
"Stock".
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement (File No.
333-108301.) including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it becomes effective,
including the information, if any, deemed pursuant to Rule 430A under the
Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430 Information"), is referred to herein as the
"Registration Statement;" and as used herein, the term "Preliminary Prospectus"
means each prospectus included in such registration statement (and any
amendments thereto) before it becomes effective, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that
omits Rule 430A Information, and the term "Prospectus" means the prospectus in
the form first used to confirm sales of the Shares. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Registration Statement and the
Prospectus.
2. Purchase of the Shares by the Underwriters. a) The Company agrees to
issue and sell the Shares to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
number of Underwritten Shares set forth opposite such Underwriter's name in
Schedule 1 hereto at a price per share of $ (the "Purchase Price"). The public
offering price of the Shares is not in excess of the price recommended by Credit
Suisse First Boston LLC, acting as a "qualified independent underwriter" within
the meaning of Rule 2720 of the Rules of Conduct of the National Association of
Securities Dealers, Inc.
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as provided in this Agreement, and the Underwriters, on
the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option to purchase,
severally and not jointly, from the Company the Option Shares at the Purchase
Price.
If any Option Shares are to be purchased, the number of Option Shares
to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule 1 hereto (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares
at any time (but not more than twice) on or before the thirtieth day following
the date of this Agreement, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised and the date and time when the Option Shares
are to be delivered and paid for which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than the Closing
Date nor later than the tenth full business day (as hereinafter defined) after
the date of
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such notice (unless such time and date are postponed in accordance with the
provisions of Section 9 hereof). Any such notice shall be given at least two
business days prior to the date and time of delivery specified therein.
(a) The Company understands that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement
as in the judgment of the Representatives is advisable, and initially to offer
the Shares on the terms set forth in the Prospectus. The Company acknowledges
and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through any Underwriter.
(b) Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, in the case of the Underwritten Shares, at the offices of
Xxxxxx Xxxxxx & Xxxxxxx LLP at 10:00 A.M. New York City time on _____ , 2003, or
at such other time or place on the same or such other date, not later than the
fifth business day thereafter, as the Representatives and the Company may agree
upon in writing; in the case of the Option Shares, on the date and at the time
and place specified by the Representatives in the written notice of the
Underwriters' election to purchase such Option Shares. The time and date of such
payment for the Underwritten Shares is referred to herein as the "Closing Date"
and the time and date for such payment for the Option Shares, if other than the
Closing Date, are herein referred to as the "Additional Closing Date".
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date in definitive form registered in such
names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the
Additional Closing Date, as the case may be, with any transfer taxes payable in
connection with the sale of the Shares duly paid by the Company. The
certificates for the Shares will be made available for inspection and packaging
by the Representatives at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP set forth
above not later than 1:00 P.M., New York City time, on the business day prior to
the Closing Date or the Additional Closing Date, as the case may be.
(c) As compensation to the Underwriters for their commitments
hereunder, the Company will pay, or cause to be paid, to the Representatives,
for the accounts of the several Underwriters, an amount equal to $_______ per
share for the Shares to be delivered by the Company hereunder on the Closing
Date or the Additional Closing Date, as the case may be. On ____, 2003, or on
such other date, not later than the fifth Business Day thereafter, as the
Representatives and the Company may agree upon in writing, or, in the case of
the Option Shares, on the date and time specified by the Representatives in the
written notice of the Underwriters' election to purchase such Option Shares the
Company will pay or cause to be paid by wire transfer, in immediate available
funds, such commission to the account specified by the Representatives.
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3. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use
of any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof.
(b) Registration Statement and Prospectus. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission
and no proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission; as of the applicable effective date of
the Registration Statement and any amendment thereto, the Registration Statement
complied and will comply in all material respects with the Securities Act, and
did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and as of the applicable filing date
of the Prospectus and any amendment or supplement thereto and as of the Closing
Date and as of the Additional Closing Date, as the case may be, the Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in the Registration Statement and the Prospectus and any amendment or
supplement thereto, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 6(b) hereof.
(c) Financial Statements. The financial statements and the related
notes thereto included in the Registration Statement and the Prospectus comply
in all material respects with the applicable requirements of the Securities Act
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (correlatively, the "Exchange Act"), as
applicable, and present fairly the financial position of the Company and Myogen
GmbH, a wholly owned subsidiary of the Company (the "Subsidiary") as of the
dates indicated and the results of their operations and the changes in their
cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby and
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the other financial information included in the Registration Statement and the
Prospectus has been derived from the accounting records of the Company and its
Subsidiary and presents fairly the information shown thereby. All non-GAAP
financial information included in the Registration Statement and the Prospectus
complies with the requirements of Regulation G and Item 10 of Regulation S-K
under the Securities Act.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included in the Registration Statement and
the Prospectus, (i) there has not been any change in the capital stock or
long-term debt of the Company or its Subsidiary, or any dividend or distribution
of any kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders' equity, results of
operations or prospects of the Company and its Subsidiary taken as a whole; (ii)
neither the Company nor its Subsidiary has entered into any transaction or
agreement that is material to the Company and its Subsidiary taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to
the Company and its Subsidiary taken as a whole; and (iii) neither the Company
nor its Subsidiary has sustained 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 disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case in (i) through (iii) as otherwise disclosed in the
Registration Statement and the Prospectus.
(e) Organization and Good Standing. The Company and its Subsidiary have
been duly organized and are validly existing and in good standing under the laws
of their respective jurisdictions of organization, are duly qualified to do
business and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary to own
or hold their respective properties and to conduct the businesses in which they
are engaged, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a material adverse
effect on the business, properties, financial position, or results of operations
of the Company and its Subsidiary taken as a whole (a "Material Adverse
Effect"). Myogen GmbH is the only subsidiary of the Company. The jurisdictions
listed on Schedule 2 hereto are the only jurisdictions in which the Company
maintains an office, leases property or conducts business.
(f) Capitalization. The Company has an authorized capitalization as set
forth in the Prospectus under the heading "Capitalization;" all the outstanding
shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly contemplated
by the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or its Subsidiary, or any contract, commitment,
agreement, understanding or arrangement of any kind
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relating to the issuance of any capital stock of the Company or its Subsidiary,
any such convertible or exchangeable securities or any such rights, warrants or
options; the capital stock of the Company conforms in all material respects to
the description thereof contained in the Registration Statement and the
Prospectus; and all the outstanding shares of capital stock or other equity
interests of the Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable (except for directors' qualifying
shares and except as otherwise described in the Prospectus) and are owned
directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party.
(g) Due Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and to perform its obligations hereunder
and thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken.
(h) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(i) The Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized by the Company and, when issued and
delivered and paid for as provided herein, will be duly and validly issued and
will be fully paid and nonassessable and will conform to the descriptions
thereof in the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights.
(j) No Violation or Default. Neither the Company nor its Subsidiary is
(i) in violation of its charter or by-laws or similar organizational documents;
(ii) in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
its Subsidiary is a party or by which the Company or its Subsidiary is bound or
to which any of the property or assets of the Company or its Subsidiary is
subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(k) No Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated by this Agreement will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or its Subsidiary pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or its
Subsidiary is a party or by which the Company or its Subsidiary is bound or to
which any of the property or assets of the Company or its Subsidiary is
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subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or its Subsidiary or
(iii) result in the violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory
authority.
(l) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated by this Agreement, except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, orders and registrations or qualifications as may be
required under applicable state securities laws in connection with the purchase
and distribution of the Shares by the Underwriters.
(m) Legal Proceedings. Except as described in the Prospectus, there are
no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or its Subsidiary is or may be a party
or to which any property of the Company or its Subsidiary is or may be the
subject that, individually or in the aggregate, if determined adversely to the
Company or its Subsidiary, could reasonably be expected to have a Material
Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; no such investigations, actions,
suits or proceedings are to the knowledge of the Company threatened or
contemplated by any governmental or regulatory authority or threatened by
others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Prospectus that are not so described and (ii) there
are no statutes, regulations or contracts or other documents that are required
under the Securities Act to be filed as exhibits to the Registration Statement
or described in the Registration Statement or the Prospectus that are not so
filed or described.
(n) Independent Accountants. PricewaterhouseCoopers LLC, who have
certified certain financial statements of the Company and its Subsidiary are
independent public accountants with respect to the Company and its Subsidiary as
required by the Securities Act.
(o) Title to Real and Personal Property. The Company and its Subsidiary
have good and marketable title in fee simple to, or have valid rights to lease
or otherwise use, all items of real and personal property that are material to
the respective businesses of the Company and its Subsidiary, in each case free
and clear of all liens, encumbrances, claims and defects and imperfections of
title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its Subsidiary or (ii)
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(p) Title to Intellectual Property. The Company and its Subsidiary own
or possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
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confidential information, systems, processes or procedures) (collectively, the
"Intellectual Property") necessary for the conduct of their respective
businesses; and the conduct of their respective businesses will not conflict in
any material respect with any such rights of others, and the Company and its
Subsidiary have not received any notice of any claim of infringement or conflict
with any such rights of others. The Company has not received any notice of
infringement of or conflict with, and the Company has no knowledge of any
infringement of or conflict with, asserted rights of others with respect to its
Intellectual Property which could reasonably be expected to result in a Material
Adverse Effect; the discoveries, inventions, products or processes of the
Company referred to in the Registration Statement and the Prospectus do not, to
the knowledge of the Company, infringe or conflict with any right or patent of
any third party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party. Further, except as
described in the Prospectus, or as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, the Company
is not obligated to pay a royalty, grant a license or provide other
consideration to any third party in connection with its patents, patent rights,
licenses, inventions, trademarks, service marks, trade names, copyrights and
know-how; and no third party, including any academic or governmental
organization, possesses rights to the Intellectual Property which, if exercised,
could enable such third party to develop products competitive with those of the
Company or its subsidiaries or could reasonably be expected to have a Material
Adverse Effect.
(q) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or its Subsidiary, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or its
Subsidiary, on the other, that is required by the Securities Act to be described
in the Registration Statement and the Prospectus and that is not so described.
(r) Investment Company Act. The Company is not and, after giving effect
to the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company" or
an entity "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, "Investment Company Act").
(s) Taxes. The Company and its Subsidiary have paid all federal, state,
local and foreign taxes and filed all tax returns required to be paid or filed
through the date hereof except to the extent that such taxes are being contested
in good faith and any reserves required under GAAP have been made; and except as
otherwise disclosed in the Prospectus, there is no tax deficiency that has been,
or could reasonably be expected to be, asserted against the Company or its
Subsidiary or any of their respective properties or assets.
(t) Licenses and Permits. The Company and its Subsidiary possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement and the
Prospectus, except where the failure to possess or make the same would not
reasonably be
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expected, individually or in the aggregate, to have a Material Adverse Effect;
and except as described in the Prospectus, neither the Company nor its
Subsidiary has received notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to believe that
any such license, certificate, permit or authorization will not be renewed in
the ordinary course.
(u) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or its Subsidiary exists or, to the knowledge of the
Company, is contemplated or threatened.
(v) Compliance With Environmental Laws. The Company and its Subsidiary
(i) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "Environmental
Laws"); (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(w) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in material compliance with its
terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the "Code"); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no "accumulated
funding deficiency" as defined in Section 412 of the Code has been incurred,
whether or not waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(x) Accounting and Disclosure Controls. The Company and its Subsidiary
maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The
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Company and its Subsidiary maintain disclosure controls and procedures (as such
term is defined in Rule 13a-14(c) and 15d-14(c) under the Exchange Act) that are
designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the
rules and forms of the Commission, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company's management, including its
principal executive officer or officers and its principal financial officer or
officers, as appropriate to allow timely decisions regarding required
disclosure.
(y) Insurance. The Company and its Subsidiary have insurance covering
their respective properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in such amounts and insures
against such losses and risks as would customarily be obtained by other
companies similarly situated and in a similar business; and neither the Company
nor its Subsidiary has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reasonable
belief that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(z) No Unlawful Payments. Neither the Company nor its Subsidiary nor,
to the best knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or its
Subsidiary has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(aa) No Restrictions on Subsidiaries. The Subsidiary of the Company is
not currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on the Subsidiary's capital
stock, from repaying to the Company any loans or advances to the Subsidiary from
the Company or from transferring any of such Subsidiary's properties or assets
to the Company.
(bb) No Broker's Fees. Neither the Company nor its Subsidiary is a
party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the Company or its
Subsidiary or any Underwriter for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Shares.
(cc) No Registration Rights. No person has the right, which right has
not been waived, to require the Company or its Subsidiary to register any
securities for sale under the
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Securities Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Shares.
(dd) No Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(ee) Forward-Looking Statements. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement and the Prospectus has been made or
reaffirmed without what the Company believes to be a reasonable basis or has
been disclosed other than in good faith.
(ff) Statistical and Market Data. Nothing has come to the attention of
the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement and the Prospectus is
not based on or derived from sources that are reliable and accurate in all
material respects.
(gg) Compliance in Clinical Trials. The clinical trials conducted by or
on behalf of the Company that are described in the Registration Statement and
Prospectus, or the results of which are referred to in the Registration
Statement and Prospectus, if any, are the only clinical trials currently being
conducted by or on behalf of the Company, and, to the best of the Company's
knowledge, such studies and tests were and, if still pending, are being,
conducted in accordance with experimental protocols, procedures and controls
pursuant to accepted professional scientific standards; the descriptions of the
results of such studies, tests and trials contained in the Registration
Statement and Prospectus, if any, are accurate and complete in all material
respects. Except as described in the Registration Statement or Prospectus, the
Company has no knowledge of any other studies or tests, the results of which
call into question the results of the clinical trials described in the
Registration Statement and Prospectus. The Company has not received any notices
or correspondence from the FDA or any other governmental agency requiring the
termination, suspension or modification of any clinical trials conducted by, or
on behalf of, the Company or in which the Company has participated that are
described in the Registration Statement and Prospectus, if any, or the results
of which are referred to in the Registration Statement and Prospectus. All
clinical trials previously conducted by or on behalf of the Company while
conducted by or on behalf of the Company, were conducted in accordance with
experimental protocols, procedures and controls pursuant to accepted
professional scientific standards; the descriptions of the results of such
studies, tests and trials contained in the Registration Statement and
Prospectus, if any, are accurate and complete in all material respects.
4. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Effectiveness of the Registration Statement. The Company will use
its reasonable best efforts to cause the Registration Statement to become
effective at the earliest possible time and, if required, will file the final
Prospectus with the Commission within the time periods specified by Rule 424(b)
and Rule 430A under the Securities Act and the Company will
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furnish copies of the Prospectus to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the second business day succeeding the date
of this Agreement in such quantities as the Representatives may reasonably
request.
(b) Delivery of Copies. The Company will deliver, without charge, (i)
to the Representatives, five copies of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of
the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period, as many copies
of the Prospectus (including all amendments and supplements thereto) as the
Representatives may reasonably request. As used herein, the term "Prospectus
Delivery Period" means such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered in
connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, the Company will
furnish to the Representatives and counsel for the Underwriters a copy of the
proposed amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representatives reasonably objects.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when the
Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any amendment to the Prospectus has been filed;
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (v) of the issuance by
the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose; (vi) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus as then amended or supplemented would
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 existing when the Prospectus is delivered to a purchaser, not
misleading; and (vii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its best efforts to prevent the issuance of
any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification of the Shares and, if any such order is
issued, to obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which the Prospectus as
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then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading or (ii)
it is necessary to amend or supplement the Prospectus to comply with law, the
Company will immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission and furnish to the
Underwriters and to such dealers as the Representatives may designate, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law.
(f) Blue Sky Compliance. The Company will cooperate with the
Representatives and counsel to the Representatives in connection with the
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Representatives shall reasonably request and
will continue such qualifications in effect so long as required for distribution
of the Shares; provided that the Company shall not be required to (i) qualify as
a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For a period of 180 days after the date of the
initial public offering of the Shares, the Company will not (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Stock or any securities convertible into or
exercisable or exchangeable for Stock or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise, without the prior written consent of both Representatives,
other than (A) the Shares to be sold hereunder, (B) any shares of Stock of the
Company issued pursuant to an employee stock purchase plan or upon the exercise
of options granted under employee stock option plans, in each case, existing and
in effect on the date hereof and disclosed in the Prospectus and (C) shares of
Stock issued upon exercise of warrants or upon conversion of preferred stock, in
each case, outstanding on the date of the Prospectus. Notwithstanding anything
in this agreement to the contrary, during such 180 day period the Company shall
be permitted to register the shares granted on Form S-8 pursuant to an employee
stock purchase plan and the shares underlying
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options granted under an employee stock option plan, in each case, existing and
in effect on the date hereof and disclosed in the Prospectus; provided, that no
such shares or options exercisable within 180 days after the date of the initial
public offering of the Shares shall be issued or granted unless subject to a
Lock-up Agreement in the form attached hereto as Exhibit A.
(i) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Shares as described in the Prospectus under the heading "Use of
Proceeds".
(j) No Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(k) Exchange Listing. The Company will use its best efforts to list for
quotation the Shares on the National Association of Securities Dealers Automated
Quotations National Market (the "Nasdaq National Market").
(l) Reports. During a period of five years commencing with the date
hereof, the Company will furnish to the Representatives, as soon as they are
available, copies of all reports or other communications (financial or other)
furnished to holders of the Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange or automatic quotation system.
(m) Filings. The Company will file with the Commission such reports as
may be required by Rule 463 under the Securities Act.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase the Underwritten Shares on the Closing Date or the
Option Shares on the Additional Closing Date, as the case may be, as provided
herein is subject to the performance by the Company of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. The Registration Statement
(or if a post-effective amendment thereto is required to be filed under the
Securities Act, such post-effective amendment) shall have become effective, and
the Representatives shall have received notice thereof, not later than 5:00
P.M., New York City time, on the date hereof; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 4(a) hereof; and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties
of the Company contained herein shall be true and correct on the date hereof and
on and as of the Closing Date or the Additional Closing Date, as the case may
be; and the statements of the Company and its officers made in any certificates
delivered pursuant to this Agreement shall be
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true and correct on and as of the Closing Date or the Additional Closing Date,
as the case may be.
(c) No Downgrade. To the extent any of the securities of the Company
are subject to rating by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, subsequent to the execution and delivery of
this Agreement, (i) no downgrading shall have occurred in the rating accorded
any securities or preferred stock of or guaranteed by the Company or its
Subsidiary by any "nationally recognized statistical rating organization", as
such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, or has changed its outlook with respect to,
its rating of any securities or preferred stock of or guaranteed by the Company
or its Subsidiary (other than an announcement with positive implications of a
possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in the Prospectus (excluding any amendment or supplement thereto) and
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement and the
Prospectus.
(e) Officer's Certificate. The Representatives shall have received on
and as of the Closing Date or the Additional Closing Date, as the case may be, a
certificate of the chief financial officer or chief accounting officer of the
Company and one additional senior executive officer of the Company who is
reasonably satisfactory to the Representatives (i) confirming that such officers
have carefully reviewed the Registration Statement and the Prospectus and, to
the best knowledge of such officers, the representation set forth in Section
3(b) hereof is true and correct, (ii) confirming that the other representations
and warranties of the Company in this Agreement are true and correct and that
the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing Date and
(iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing
Date or the Additional Closing Date, as the case may be, PricewaterhouseCoopers
LLP shall have furnished to the Representatives, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letter delivered on
the Closing Date or the Additional Closing Date, as the case may be, shall use a
"cut-off" date no more than three business days prior to such Closing Date or
such Additional Closing Date, as the case may be.
-15-
(g) Opinion of Counsel for the Company. Xxxxxx Godward LLP, counsel for
the Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion, dated the Closing Date or the Additional Closing
Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Annex A hereto.
(h) Opinion of Intellectual Property Counsel for the Company. Fulbright
& Xxxxxxxx, intellectual property counsel for the Company, shall have furnished
to the Representatives, at the request of the Company, their written opinion,
dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex B hereto.
(i) Opinion of Regulatory Counsel for the Company. Xxxxx Xxxxxx LLP,
regulatory counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion, dated the Closing Date or
the Additional Closing Date, as the case may be, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex C hereto.
(j) Opinion of Counsel for the Subsidiary. [ ], counsel for the
Subsidiary, shall have furnished to the Representatives, at the request of the
Company, their written opinion, dated the Closing Date or the Additional Closing
Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Annex D hereto.
(k) Opinion of Counsel for the Underwriters. The Representatives shall
have received on and as of the Closing Date or the Additional Closing Date, as
the case may be, an opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as
they may reasonably request to enable them to pass upon such matters.
(l) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date or the Additional Closing Date, as the case
may be, prevent the issuance or sale of the Shares; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Shares.
(m) Good Standing. The Representatives shall have received on and as of
the Closing Date or the Additional Closing Date, as the case may be,
satisfactory evidence of the good standing of the Company and its Subsidiary in
their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Representatives may
-16-
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate Governmental Authorities of such
jurisdictions.
(n) Exchange Listing. The Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved for
listing on the Nasdaq National Market, subject to official notice of issuance.
(o) Lock-up Agreements. The "lock-up" agreements, each substantially in
the form of Exhibit A hereto, between you and all of the shareholders, officers
and directors of the Company relating to sales and certain other dispositions of
shares of Stock or certain other securities, delivered to you on or before the
date hereof, shall be full force and effect on the date hereof.
(p) Additional Documents. On or prior to the Closing Date or the
Additional Closing Date, as the case may be, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as (1)
such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below or (2) with respect to any
Preliminary Prospectus, such losses, claims, damages or liabilities are asserted
by any person who purchased the Stock which is the subject thereof if at or
prior to the written confirmation of the sale of such Stock a copy of the
Prospectus (or the Prospectus as amended or supplemented) was not sent or
delivered to such person and the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the Prospectus (or the
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Prospectus as amended or supplemented) unless the failure is the result of
non-compliance by the Company with Section 4(b) hereof.
The Company also agrees to indemnify and hold harmless, Credit Suisse
First Boston LLC, its affiliates, directors and officers and each person, if
any, who controls Credit Suisse First Boston LLC within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities incurred as a result of Credit
Suisse First Boston LLC's participation as a "qualified independent underwriter"
within the meaning of the Rules of Conduct of the National Association of
Securities Dealers, Inc. in connection with the offering of the Shares.
(b) Indemnification of the Company. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the
Company in writing by such Underwriter or counsel for the Representatives
expressly for use in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, it being
understood and agreed upon that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in
the second paragraph under the caption "Underwriting", the information contained
in the third paragraph under the caption "Underwriting", and the following
information in the Prospectus furnished on behalf of X.X. Xxxxxx Securities
Inc.: description of its relationship with the Company described under the
caption "Underwriting".
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 6. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 6 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified
-18-
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are incurred;
provided, however that if indemnity may be sought pursuant to the second
paragraph of 6(a) above in respect of such proceeding, then in addition to such
separate firm of the Underwriters, their affiliates and such control persons of
the Underwriters the indemnifying party shall be liable for the fees and
expenses of not more than one separate firm (in addition to any local counsel)
for Credit Suisse First Boston LLC in its capacity as a "qualified independent
underwriter", its affiliates and all persons, if any, who control Credit Suisse
First Boston LLC within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act. Any such separate firm for any Underwriter,
its affiliates, directors and officers and any control persons of such
Underwriter shall be designated in writing by Credit Suisse First Boston LLC and
X.X. Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who signed the Registration Statement and any control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters or Credit
Suisse First Boston LLC in its capacity as a "qualified independent
underwriter," as the case may be, on the other from the offering of the Shares
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company on
the one hand and the Underwriters or Credit Suisse First Boston LLC in its
capacity as a "qualified independent underwriter," as the case may be, on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters or Credit Suisse First Boston LLC in its capacity as a
"qualified independent underwriter," as the case may be, on the other shall be
deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of the Shares and the
total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the
Prospectus, the fee to be received by Credit Suisse First Boston LLC in its
capacity as a "qualified independent underwriter," as the case may be, bear to
the aggregate offering price of the Shares. The relative fault of the Company on
the one hand and the Underwriters or Credit Suisse First Boston LLC in its
capacity as a "qualified independent underwriter," as the case may be, on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters or Credit Suisse First Boston LLC in its capacity as a
"qualified independent underwriter," as the case may be, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
6 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 6, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
-20-
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 6 are several in proportion to their respective purchase obligations
hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective
upon the later of (i) the execution and delivery hereof by the parties hereto
and (ii) receipt by the Company and the Representatives of notice of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment thereto).
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date or, in
the case of the Option Shares, prior to the Additional Closing Date (i) trading
generally shall have been suspended or materially limited on or by any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; (iv) there shall have occurred any major disruption of
settlements of securities or clearance services in the United States; or (v)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated by this
Agreement and the Prospectus.
9. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case
may be, any Underwriter defaults on its obligation to purchase the Shares that
it has agreed to purchase hereunder on such date, the non-defaulting
Underwriters may in their discretion arrange for the purchase of such Shares by
other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the
non-defaulting Underwriters do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree
to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date or the Additional
Closing Date, as the case may be, for up to five full business days in order to
effect any changes that in the
-21-
opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other
document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and the Prospectus that
effects any such changes. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in Schedule 1 hereto that, pursuant to this
Section 9, purchases Shares that a defaulting Underwriter agreed but failed to
purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
number of Shares that remain unpurchased on the Closing Date or the Additional
Closing Date, as the case may be, does not exceed one-eleventh of the aggregate
number of Shares to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares that such Underwriter agreed to purchase hereunder on such date plus such
Underwriter's pro rata share (based on the number of Shares that such
Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
number of Shares that remain unpurchased on the Closing Date or the Additional
Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount
of Shares to be purchased on such date, or if the Company shall not exercise the
right described in paragraph (b) above, then this Agreement or, with respect to
any Additional Closing Date, the obligation of the Underwriters to purchase
Shares on the Additional Closing Date, as the case may be, shall terminate
without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of the Company, except that the Company will continue to
be liable for the payment of expenses of the non-defaulting Underwriters as set
forth in Section 10 hereof and except that the provisions of Section 6 hereof
shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default.
10. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Shares and any
taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus and the Prospectus (including all exhibits, amendments
and supplements thereto) and the distribution
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thereof; (iii) the fees and expenses of the Company's counsel and independent
accountants; (iv) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Shares under the laws of such jurisdictions as the Representatives may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the
Underwriters); (v) the cost of preparing stock certificates; (vi) the costs and
charges of any transfer agent and any registrar; (vii) all expenses and
application fees incurred in connection with any filing with, and clearance of
the offering by, the National Association of Securities Dealers, Inc. (including
the fees and expenses of Credit Suisse First Boson LLC acting as "qualified
independent underwriter" within the meaning of the aforementioned Rule 2720 of
The Rules of Conduct; (viii) all expenses incurred by the Company in connection
with any "road show" presentation to potential investors, including that portion
of the cost of any aircraft chartered in connection with the road show allocable
to personnel of the Company (but not that portion thereof allocable to personnel
of the Underwriters); and (ix) all expenses and application fees related to the
listing of the Shares on the Nasdaq National Market.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the
Company for any reason other than breach of this Agreement by any Underwriter
fails to tender the Shares for delivery to the Underwriters or (iii) the
Underwriters decline to purchase the Shares for any reason permitted under this
Agreement, the Company agrees to reimburse the Underwriters for all documented
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons
referred to in Section 6 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
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14. Miscellaneous. (1) Authority of the Representatives. Any action by
the Underwriters hereunder may be taken by Credit Suisse First Boston LLC and
X.X. Xxxxxx Securities Inc. jointly on behalf of the Underwriters, and any such
action taken by Credit Suisse First Boston LLC and X.X. Xxxxxx Securities Inc.
shall be binding upon the Underwriters.
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representatives c/o Credit Suisse First Boston LLC, Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000), Attention:
Transactions Advisory Group and X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000); Attention: Equity Capital
Markets, copy to Xxxxxx Xxxxxx & Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
(fax: (000) 000-0000), Attention: Xxxxxx X. Xxxxxxxxx, Esq. Notices to the
Company shall be given to it at Myogen, Inc., 0000 Xxxx 000xx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxx, XX 00000 (fax: (000) 000-0000); Attention: Xxxxxx X. Xxxxxx, copy
to Xxxxxx Godward LLP, 000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
(fax: (000) 000-0000), Attention: Xxxxx C.T. Linfield, Esq.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(c) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(d) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-24-
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
MYOGEN, INC.
By:
------------------------------------
Title:
Accepted: __________, 2003
CREDIT SUISSE FIRST BOSTON LLC
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By:
--------------------------------
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By:
--------------------------------
Authorized Signatory
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Schedule 1
Underwriter Number of Shares
----------- ----------------
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
CIBC World Markets Corp.
Lazard Freres & Co. LLC
----------------
Total
Annex A
[Form of Opinion of Counsel for the Company]
(a) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion; the Prospectus
was filed with the Commission pursuant to the subparagraph of Rule 424(b) under
the Securities Act specified in such opinion on the date specified therein; and,
to the best knowledge of such counsel, no order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(b) The Registration Statement and the Prospectus (other than the
financial statements and related schedules and other financial data and
statistical data derived therefrom, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Securities Act.
(c) The Company has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware, and has the requisite
corporate power and authority to own or hold its properties and to conduct its
business as described in Prospectus.
(d) The Company has an authorized capitalization as set forth in the
Prospectus under the heading "Capitalization;" all the outstanding shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; the capital stock of the Company conforms
as to legal matters to the description thereof contained in the Registration
Statement and the Prospectus.
(e) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Shares to be issued and sold by the Company hereunder have been
duly authorized, and when delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be validly issued,
fully paid and non-assessable and the issuance of the Shares is not subject to
any preemptive or similar rights under the Company's charter or bylaws or
Delaware corporate law or any agreement or instrument which is filed as an
exhibit to the Registration Statement.
(g) The execution, delivery and performance by the Company of the
Underwriting Agreement, the issuance and sale of the Shares being delivered on
the Closing Date or the Additional Closing Date, as the case may be, and
compliance by the Company with the terms of, and the consummation of the
transactions contemplated by, the Underwriting Agreement will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument which is filed as an exhibit to the Registration Statement., (ii)
result in any violation of the provisions of the charter,
A-1
by-laws or similar organizational documents of the Company or (iii) result in
the violation of any law or statute or, or to the best knowledge of such
counsel, any judgment, order or regulation of any court or arbitrator or
governmental or regulatory authority except, in the case of clauses (i) and
(iii) above, for such conflict, breach or violation that would not reasonable be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(h) No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance by the Company
of the Underwriting Agreement, and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the
Underwriting Agreement, except such as may be required (i) under the Securities
Act which have been made or obtained on or prior to the date of the Underwriting
Agreement, (ii) by the rules and regulations of the National Association of
Securities Dealers, Inc. and (iii) such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(i) To the best knowledge of such counsel, except as described in the
Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company is or may be a party
or to which any property of the Company is or may be the subject which,
individually or in the aggregate, if determined adversely to the Company, could
reasonably be expected to have a Material Adverse Effect; and to the best
knowledge of such counsel, no such investigations, actions, suits or proceedings
are threatened or contemplated by any governmental or regulatory authority or
threatened by others.
(j) The statements in the Prospectus under the headings "Certain
Federal Income Tax Considerations" and "Description of Capital Stock", and in
the Registration Statement in items 14 and 15, to the extent that they
constitute summaries of the terms of stock, matters of law or regulation or
legal conclusions, fairly summarize the matters described therein in all
material respects; and, to the best knowledge of such counsel, (A) there are no
current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the
Prospectus and that are not so described and (B) there are no statutes,
regulations or contracts and other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement or
described in the Prospectus and that have not been so filed or described.
(k) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act.
Such counsel shall also state that they have participated in
conferences with representatives of the Company and with representatives of its
independent accountants and counsel at which conferences the contents of the
Registration Statement and the Prospectus and any amendment and supplement
thereto and related matters were discussed and, although such
A-2
counsel assume no responsibility for the accuracy, completeness or fairness of
the Registration Statement, the Prospectus and any amendment or supplement
thereto (except as expressly provided above), nothing has come to the attention
of such counsel to cause such counsel to believe that the Registration
Statement, at the time of its effective date (including the information, if any,
deemed pursuant to Rule 430A to be part of the Registration Statement at the
time of effectiveness), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
amendment or supplement thereto as of its date and the Closing Date contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (other than the financial statements and other
financial data contained therein, as to which such counsel need express no
belief).
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters to the extent we deemed such reliance proper.
The opinion of Xxxxxx Godward LLP described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
A-3
Annex B
[Form of Opinion of Intellectual Property Counsel]
B-1
Annex C
[Form of Opinion of Regulatory Counsel]
C-1
Annex D
[Form of Opinion of Counsel for the Subsidiary]
D-1
Exhibit A
FORM OF LOCK-UP AGREEMENT
, 2003
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
LAZARD FRERES & CO. LLC
CIBC WORLD MARKETS CORP.
As Representatives of the several
Underwriters to be named in Schedule I to
the Underwriting Agreement referred to below
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Myogen, Inc. -
Initial Public Offering of Common Stock
---------------------------------------
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several
Underwriters, propose to enter into an Underwriting Agreement (the "Underwriting
Agreement") with Myogen, Inc., a Delaware corporation (the "Company"), providing
for the public offering (the "Public Offering") by the several Underwriters to
be named in Schedule I to the Underwriting Agreement (the "Underwriters") of
Common Stock, $.001 par value, of the Company (the "Common Stock").
In consideration of the Underwriters' agreement to purchase and make
the Public Offering of Common Stock, and for other good and valuable
consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without the prior written consent of both of Credit Suisse First
Boston LLC and X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, the
undersigned will not, directly or indirectly, from the date hereof and through
the period ending 180 days after the date of the prospectus relating to the
Public Offering (the "Prospectus"), (1) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of any shares of Common Stock or any securities
of the Company which are substantially similar to the Common Stock, including
but not limited to any securities convertible into or exercisable or
exchangeable for, or that represent the right to receive, Common Stock
(including, but not limited to, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations
of the Securities and Exchange Commission and securities which may be issued
upon exercise of a stock option or warrant) (collectively, the "Company
Securities") or (2) enter into any swap, option, future, forward or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Company Securities, regardless of whether any of the
transactions described in clause (1) or (2) above is to be settled by delivery
of Company Securities, in cash or otherwise. In addition, the undersigned agrees
that, without the prior written consent of both of Credit Suisse First Boston
LLC and X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, it will not,
from the date hereof and through the period ending 180 days after the date of
the Prospectus, (1) make any demand for, or exercise any right with respect to,
the registration of any Company Securities or (2) make any demand for, or
exercise any preemptive right relating to the purchase of any Company
Securities. Notwithstanding the foregoing, in the event that the Company has
provided written notice to either Credit Suisse First Boston LLC or X.X. Xxxxxx
Securities Inc. that it will not be acting as an Underwriter in connection with
this offering (a "Non-Participating Party"), then the consent of such
Non-Participating Party shall not be required hereunder.
The foregoing paragraph shall not apply to (i) transfers of shares of
Common Stock or options to purchase Common Stock made as a bona fide gift or
gifts, provided that the donee or donees thereof agree to be bound by the
restrictions set forth herein prior to such transfer, (ii) transfers of shares
of Common Stock or options to purchase Common Stock made to any trust for the
direct or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound by the
restrictions set forth herein prior to such transfer, and provided further that
any such transfer shall not involve a disposition for value, (iii) transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering and (iv) distributions
to partners, members or shareholders of the undersigned, provided that the
undersigned is a limited partnership, limited liability company or corporation
and the distributees thereof agree in writing to be bound by the restrictions
set forth herein prior to such distribution.
In furtherance of the foregoing, the Company and any duly appointed
transfer agent for the registration or transfer of the securities described
herein are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does
not become effective on or before December 31, 2003, or if the Underwriting
Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock
to be sold thereunder, the undersigned shall be released from all obligations
under this Lock-Up Agreement.
-2-
The undersigned recognizes that the Public Offering will be of benefit
to the undersigned and will benefit the Company by, among other things, raising
capital for its operations. The undersigned understands that the Underwriters
are entering into the Underwriting Agreement and proceeding with the Public
Offering in reliance upon this Lock-Up Agreement.
THIS LOCK-UP AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
Very truly yours,
---------------------------------
Name:
Title:
-3-
