REPLIDYNE, INC. (a Delaware corporation) l Shares of Common Stock PURCHASE AGREEMENT
Exhibit 1.1
REPLIDYNE, INC.
(a Delaware corporation)
l Shares of Common Stock
Dated: l, 2006
Draft of June 11, 2006
REPLIDYNE, INC.
(a Delaware corporation)
l Shares of Common Stock
(Par Value $0.001 Per Share)
l, 2006
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED,
as Representatives of the several Underwriters
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED,
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Replidyne, Inc., a Delaware corporation (the “Company”), confirms its agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”), Xxxxxx Xxxxxxx &
Co. Incorporated (“Xxxxxx Xxxxxxx”), and each of the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx are acting as
representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly, of the respective
numbers of shares of Common Stock, par value $0.001 per share, of the Company (“Common Stock”) set
forth in Schedules A and B hereto and (ii) the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any
part of l additional shares of Common Stock to cover overallotments, if any. The aforesaid
l shares of Common Stock (the “Initial Securities”) to be purchased by the Underwriters and
all or any part of the l shares of Common Stock subject to the option described in Section
2(b) hereof (the “Option Securities”) are hereinafter called, collectively, the “Securities.”
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (No. 333-133021), including the related preliminary prospectus
or prospectuses, covering the registration of the Securities under the Securities Act of 1933, as
amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of
the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The information included in
such prospectus that was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Each prospectus
used before such registration statement became effective, and any prospectus that omitted the Rule
430A Information, that was used after such effectiveness and prior to the execution and delivery of
this Agreement, is herein called a “preliminary prospectus.” Such registration statement,
including the amendments thereto, the exhibits and any schedules thereto, at the time it became
effective, and including the Rule 430A Information, is herein called the “Registration Statement.”
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the “Rule 462(b) Registration Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Securities after the Registration Statement became effective and filed, or required to be
filed, by the Company with the Commission pursuant to Rule 424(b) is herein called the
“Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“XXXXX”).
SECTION 1. Representations and Warranties.
(i) Compliance with Registration Requirements. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto
has become effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the preliminary prospectus included in the
registration statement filed with the Commission on June 13,
2006 (considered together with any Issuer General Use Free Writing
Prospectus(es) (as defined below)), the Prospectus nor any
amendments or supplements thereto (including any prospectus wrapper), at the time such
preliminary prospectus (considered together with any Issuer General
Use Free Writing Prospectus(es)), the Prospectus or any such amendment or supplement was issued and at
the Closing Time (and, if any Option
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Securities are purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
As of the Applicable Time (as defined below), neither (A) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the
Statutory Prospectus (as defined below) as of the Applicable Time and the information
included on Schedule C hereto, all considered together (collectively, the “General
Disclosure Package”), nor (B) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package, included any untrue statement
of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means
l:00 p.m. (Eastern
time) on [ ], 2006 or such other time
as agreed by the Company and Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a Bona Fide
Electronic Road Show (as defined below)), as evidenced by its being specified in Schedule E
hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus (including a Bona Fide Electronic
Road Show (as defined below)).
The Company has made available a “bona fide electronic road show,” as defined in Rule
433, in compliance with Rule 433(d)(8)(ii) (the “Bona Fide Electronic Road Show”) such that
no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the
offering of the Securities.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx as described in
Section 3(e), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or
the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has
not been superseded or modified.
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The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, any preliminary prospectus, the Prospectus or
any Issuer Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx and Xxxxxx
Xxxxxxx expressly for use therein.
Each preliminary prospectus complied when so filed in all material respects with the
1933 Act Regulations, and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
At the time of filing the Registration Statement, any 462(b) Registration Statement and
any post-effective amendments thereto, at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations.
(ii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are independent
public accountants with respect to the Company as required by the 1933 Act and the 1933 Act
Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the Company at the
dates indicated and the statement of operations, stockholders’ equity and cash flows of the
Company for the periods specified; said financial statements have been prepared in
conformity with United States generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved. The supporting schedules included in the
Registration Statement, the General Disclosure Package and the Prospectus, if any, present
fairly in accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the Registration Statement,
the General Disclosure Package and the Prospectus, if any, present fairly the information
shown therein, have been prepared in accordance with the Commission’s rules and guidelines
with respect to pro forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(iv) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course of business
(a “Material Adverse Effect”), (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are material with
respect to the Company, and (C) except as otherwise described in the General Disclosure
Package and the Prospectus or in connection with the repurchase of shares upon termination
of service pursuant to agreements or plans described in
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the Prospectus, there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
to enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not reasonably be expected to result in a Material
Adverse Effect.
(vi) Subsidiaries. The Company has no subsidiaries.
(vii) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the General Disclosure Package and the Prospectus in the
column entitled “Actual” under the caption “Capitalization” (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the General Disclosure Package and the Prospectus or
pursuant to the exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) Authorization and Description of Securities. The Securities have been
duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and non-assessable;
the Common Stock conforms to all statements relating thereto contained in the Prospectus and
such description conforms to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability for obligations of the
Company by reason of being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the Company that have not
been validly waived by such securityholder prior to the date hereof.
(x) Absence of Defaults and Conflicts. The Company is not in violation of its
charter or by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound, or to which any of the property or assets of
the Company is subject (collectively, “Agreements and Instruments”), except for such
defaults that would not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement (including the issuance and sale of the Securities, the
payment of the stock dividend as described in the Prospectus under the caption
“Capitalization” and the use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption “Use of Proceeds”) and
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compliance by the Company with its obligations hereunder have been duly authorized by
all necessary corporate action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults
or Repayment Events or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a “Repayment Event” means any event
or condition which gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xi) Absence of Labor Dispute. No organized labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees
of any of its or any subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, would result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding, formal
inquiry or formal investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened,
against or involving the Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which could reasonably be
expected to result in a Material Adverse Effect, or which could reasonably be expected to
materially and adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental proceedings to
which the Company is a party or of which any of its property or assets is the subject which
are not described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a Material Adverse
Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or the General Disclosure Package or
the Prospectus or to be filed as exhibits thereto which have not been so described and filed
as required.
(xiv) Possession of Intellectual Property. Except as described in the General
Disclosure Package and the Prospectus, (A) the Company owns, possesses or has adequate
rights to use, or can acquire on reasonable terms adequate rights to use, the Company
Intellectual Property (as defined below), (B) the Company has not received any notice of any
infringement of, or conflict with, any Intellectual Property of any third party, (C) no
third party, including any academic or governmental organization, possesses or could obtain
rights to the Company Intellectual Property which, if exercised, could enable such party to
develop products competitive with those of the Company, and (D) neither the Company nor the
Subsidiary is obligated to pay a material royalty, grant a material license, or provide
other material consideration to any third party in connection with the Company Intellectual
Property. Except as described in the General Disclosure Package and the Prospectus or as
would not have a Material Adverse Effect, (x) the Company is not aware of any infringement
by the Company of any valid claim of a third-party
6
patent, (y) the Company is not aware of any infringement by the Company of, or conflict
with, any non-patented Intellectual Property right of any third party, and (z) the Company
is not aware of any facts or circumstances that would render any Company Intellectual
Property invalid or unenforceable. For purposes of this Agreement, “Intellectual Property”
means patents, patent rights, patent applications, licenses, inventions, copyrights, know
how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and trade names,
and “Company Intellectual Property” means Intellectual Property that is necessary to carry
on the business now operated and as planned to be operated by the Company as described in
the Prospectus.
(xv) PTO Applications. The Company has duly and properly filed or caused to be
filed with the United States Patent and Trademark Office (the “PTO”) and applicable foreign
and international patent authorities all patent applications owned by the Company (the
“Company Patent Applications”). To the knowledge of the Company, the Company has complied
with the PTO’s duty of candor and disclosure for the Company Patent Applications and has
made no material misrepresentation in the Company Patent Applications. To the knowledge of
the Company, the Company has complied with the duty of candor and disclosure for the Company
Patent Applications pending in countries outside the United States. The Company is not
aware of any information material to a determination of patentability regarding the Company
Patent Applications not called to the attention of the PTO or similar foreign authority.
The Company is not aware of any information not called to the attention of the PTO or
similar foreign authority that would preclude the grant of a patent for the Company Patent
Applications. The Company has no knowledge of any information which would preclude the
Company from having clear title to the Company Patent Applications.
(xvi) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement,
except such as have been already obtained or as may be required under the 1933 Act, the 1933
Act Regulations, state securities laws or the rules of the National Association of
Securities Dealers, Inc.
(xvii) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xviii) Possession of Licenses and Permits. The Company possess such permits,
licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business of the Company as described in the Prospectus,
including without limitation all such certificates, approvals, authorizations, licenses and
permits required by the United States Food and Drug Administration (the “FDA”) or any other
federal, state or foreign agencies or bodies engaged in the regulation of pharmaceuticals or
biohazardous materials, except where the failure so to possess would not, singly or in the
aggregate, result in a Material Adverse Effect; the Company is in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
7
when the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and the Company has not received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect. To the Company’s knowledge, no party granting any such
Governmental Licenses is considering limiting, suspending or revoking the same in any
material respect.
The Company has not failed to file with applicable regulatory authorities any
statement, report, information or form required by any applicable law, regulation or order,
except where the failure to make such filing would not, singly or in the aggregate, have a
Material Adverse Effect; all such filings complied in all material respects with applicable
laws when filed, and no material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to any such filings or submissions, except
deficiencies that could not, singly or in the aggregate, have a Material Adverse Effect.
(xix) Regulatory Compliance. The Company has operated and currently is in
compliance with all applicable rules and regulations of the FDA or any other federal, state,
local or foreign governmental body exercising comparable authority, except where the failure
to so operate or be in compliance would not reasonably be expected to have a Material
Adverse Effect.
Any human studies or tests and preclinical and clinical trials conducted by or, to the
Company’s knowledge, on behalf of the Company or in which the Company participated in, or is
otherwise relying upon, were and, if still pending, are being, conducted in all material
respects in accordance with experimental protocols, procedures and controls pursuant to,
where applicable, accepted professional and scientific standards and all applicable laws and
regulations. The descriptions of the tests and preclinical and clinical studies contained
in the Registration Statement and the Prospectus are accurate in all material respects and
do not contain any material omissions. Any descriptions of the results of such studies,
tests and trials contained in the Registration Statement, the General Disclosure Package and
the Prospectus are accurate in all material respects; and the Company has not received any
notices or correspondence from the FDA or any foreign, state or local governmental body
exercising comparable authority requiring the termination, suspension, material modification
or clinical hold of any studies, tests or preclinical or clinical trials, or such written
notice or correspondence from any Institutional Review Board or comparable authority
requiring the termination or suspension of a clinical study, conducted by or on behalf of
the Company, which termination, suspension or material modification would reasonably be
expected to have a Material Adverse Effect. Except to the extent disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, the Company is
not aware of any other trials, studies or tests, the results of which reasonably call into
question the results described or referred to in the Registration Statement and the
Prospectus.
(xx) Title to Property. The Company owns no real property and has good title
to all other properties owned by it that are material to the business of the Company, in
each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are described in the General
Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made and proposed to be
made of such property by the Company; and all of the leases and subleases material to the
business of the Company and under which the Company holds properties described in the
General Disclosure Package and the Prospectus, are in full force and effect, and the Company
has not received any notice of any
8
material claim of any sort that has been asserted by anyone adverse to the rights of
the Company under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxi) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the General Disclosure Package and the Prospectus will
not be required, to register as an “investment company” under the Investment Company Act of
1940, as amended (the “1940 Act”).
(xxii) Environmental Laws. Except as described in the Registration Statement
or except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A)
the Company is not in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company has all permits,
authorizations and approvals required under any applicable Environmental Laws and is in
compliance with their requirements, (C) there are no pending or, to the Company’s knowledge,
threatened administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company and (D) to the Company’s knowledge, there are
no events or circumstances that would reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company relating to Hazardous
Materials or any Environmental Laws.
(xxiii) Registration Rights. Except for such rights as have been waived with
respect to the offering of Securities contemplated hereby or otherwise disclosed in the
Registration Statement, General Disclosure Package and Prospectus, there are no persons with
registration rights or other similar rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the Company under the 1933 Act.
(xxiv) Accounting Controls and Disclosure Controls. The Company and each of
its subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s
general or specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. Except as described in the General Disclosure Package and the Prospectus,
since the end of the Company’s most recent audited fiscal year, there has been (1) no
material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (2) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably
9
likely to materially affect, the Company’s internal control over financial reporting.
The Company employs disclosure controls and procedures that are designed to ensure that
information that the Company will be required to disclose in the reports that it files or
submits under the 1934 Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is accumulated and communicated
to the Company’s management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(xxv) Compliance with the Xxxxxxxx-Xxxxx Act. The Company has taken all
necessary actions to ensure that, upon the effectiveness of the Registration Statement, it
will be in compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules
and regulations promulgated thereunder or implementing the provisions thereof (the
“Xxxxxxxx-Xxxxx Act”) that are then in effect and which the Company is required to comply
with as of the effectiveness of the Registration Statement, and is taking steps to ensure
that it will be in compliance with other provisions of the Xxxxxxxx-Xxxxx Act not currently
in effect, upon the effectiveness of such provisions, or which will become applicable to the
Company at all times after the effectiveness of the Registration Statement.
(xxvi) Payment of Taxes. All United States federal income tax returns of the
Company required by law to be filed have been filed and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid, except assessments against
which appeals have been or will be promptly taken and as to which adequate reserves have
been provided. The United States federal income tax returns of the Company through the
fiscal year ended December 31, 2005 have been settled and no assessment in connection
therewith has been made against the Company. The Company has filed all other tax returns
that are required to have been filed by it pursuant to applicable foreign, state, local or
other law, except insofar as the failure to file such returns would not result in a Material
Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company, except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided. The charges, accruals and
reserves on the books of the Company in respect of any income and corporation tax liability
for any years not finally determined are adequate to meet any assessments or re-assessments
for additional income tax for any years not finally determined, except to the extent of any
inadequacy that would not result in a Material Adverse Effect.
(xxvii) Insurance. The Company carries or is entitled to the benefits of
insurance, with financially sound and reputable insurers, in such amounts and covering such
risks as the Company believes to be generally maintained by companies of established repute
engaged in the same or similar business and at the same or a similar stage of development,
and all such insurance is in full force and effect. The Company has no reason to believe
that it or any subsidiary will not be able (A) to renew its existing insurance coverage as
and when such policies expire or (B) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as described in the Prospectus at
a cost that would not result in a Material Adverse Effect. The Company has not been denied
any insurance coverage which it has sought or for which it has applied.
(xxviii) Statistical and Market-Related Data. Any statistical and
market-related data included in the Registration Statement and the Prospectus are based on
or derived from sources that the Company believes to be reliable and accurate, and, if
required, the Company has obtained the written consent to the use of such data from such
sources.
10
(xxix) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company and, to the knowledge of the Company,
its affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(xxx) Recent Issuances. Except as described in the Registration Statement, the
Company has not sold, issued or distributed any shares of Common Stock during the six-month
period preceding the date hereof, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the 1933 Act, other than shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(xxxi) Compliance with Laws. The Company and, to the Company’s knowledge,
others who perform services on the Company’s behalf have been and are in compliance with all
applicable federal, state, local and foreign laws, rules, regulations, standards, orders and
decrees governing their respective businesses, including without limitation, all regulations
promulgated by the FDA or any other federal, state, local or foreign agencies or bodies
engaged in the regulation of pharmaceuticals, biologics or biohazardous substances or
materials, except where noncompliance would not, singly or in the aggregate, have a Material
Adverse Effect; and the Company has not received any notice citing action or inaction by the
Company or others who perform services on the Company’s behalf that would constitute
noncompliance with any applicable federal, state, local or foreign laws, rules, regulations
or standards in a manner that could reasonably be expected to have a Material Adverse
Effect.
(xxxii) NASDAQ Listing. The Common Stock has been approved for quotation on the
NASDAQ National Market of the Nasdaq Stock Market, Inc. (the “Nasdaq National Market”),
subject to official notice of issuance. The Company has taken all necessary actions to
ensure that, at such time as the Common Stock is first quoted on the Nasdaq National Market,
it will be in compliance with all applicable corporate governance requirements set forth in
the Nasdaq Marketplace Rules that are then in effect and which the Company is required to
comply with as of such time.
(xxxiii) NASD Matters. Except as disclosed in writing to Xxxxxxx Xxxxx and
Xxxxxx Xxxxxxx, neither the Company nor, to the Company’s knowledge, the Company’s officers,
directors, securityholders or any of its affiliates (within the meaning of the National
Association of Securities Dealers, Inc. (the “NASD”) Conduct Rule 2720(b)(1)(a)), directly
or indirectly controls, is controlled by, or is under common control with, or is an
associated person (within the meaning of Article I, Section 1(dd) of the By-laws of the
NASD) of, any member firm of the NASD.
11
SECTION 2. Sale and Delivery to Underwriters; Closing.
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of Delivery as specified in the notice
from the Representatives to the Company.
12
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and
the Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx,
acting individually and not as representatives of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities or the Option Securities, if any,
to be purchased by any Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter
from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. If the Representatives so elect, delivery of
the Securities may be made by credit through full fast transfer to the accounts at The Depository
Trust Company designated by the Representatives. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
13
case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object. The Company has given the Representatives notice of any
filings made pursuant to the Securities Exchange Act of 1934, (the “1934 Act”) or the rules and
regulations of the Commission under the 1934 Act (the “1934 Act Regulations”) within 48 hours prior
to the Applicable Time; the Company will give the Representatives notice of its intention to make
any such filing from the Applicable Time to the Closing Time and will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such proposed filing, as the
case may be, and will not file or use any such document to which the Representatives or counsel for
the Underwriters shall object.
14
Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx and will promptly amend or supplement, at its own expense,
such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission.
15
expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event, unless each of Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx
waive such extension.
SECTION 4. Payment of Expenses.
16
Nasdaq National Market, and (xii) the costs and expenses (including without limitation any
damages or other amounts payable in connection with legal or contractual liability) associated with
the reforming of any contracts for sale of the Securities made by the Underwriters caused by a
breach of the representations contained in the third paragraph of Section 1(a)(ii). It is
understood that, except as specifically provided by this section and Section 4(b) hereof, the
Underwriters will pay all of their costs and expenses, including fees and disbursements of their
counsel.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder that are required to be performed or satisfied by it at or prior to the
Closing Time, and to the following further conditions:
17
together with signed or reproduced copies of such letter for each of the other Underwriters.
In giving such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of the United States
and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory
to the Representatives. Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of officers of the
Company and certificates of public officials.
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the chief financial or chief accounting
officer of the
18
Company confirming that the certificate delivered at the Closing Time pursuant to
Section 5(f) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The opinion of Xxxxxx Godward LLP,
counsel for the Company, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(v) Opinion of Counsel for Underwriters. The opinion of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(e) hereof.
(vi) Bring-down Comfort Letter. A letter from KPMG LLP, in form and substance
satisfactory to the Representatives and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the Representatives pursuant to Section
5(g) hereof, except that the “specified date” in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of Delivery.
SECTION 6. Indemnification.
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto),
19
or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx
expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto).
20
indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (a) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or (b) if the
allocation provided by clause (a) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (a) above but also the
relative fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the
one hand, and the total underwriting discount received by the Underwriters, on the other hand, in
each case as set forth on the cover of the Prospectus bear to the aggregate initial public offering
price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any
21
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its officers or directors, or
any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the earlier of the
time of execution of this Agreement or the Applicable Time or since the respective dates as of
which information is given in the Prospectus or the General Disclosure Package, any Material
Adverse Effect, or (ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by any of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or (v) if a banking
moratorium has been declared by either Federal or New York authorities.
22
provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the Securities which it
or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of Securities to
be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after
the Closing Time, the obligation of the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall
have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Company. If the Company shall fail at Closing Time or at
the Date of Delivery to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any nondefaulting party;
provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in
full force and effect. No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement,
from the commencement of discussions with respect to the transactions contemplated hereby, the
Company (and each employee, representative or other agent of the Company) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided relating to such tax treatment and tax structure.
SECTION 13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representatives at
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000,
23
attention of Xxxxxx Xxxxxxxxxx, Esq., Vice President and Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000, attention of Equity Capital Markets
Syndicate Desk with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, attention of Xxxxx Xxxxx, Esq.; and notices to the Company shall be directed to
it at 0000 Xxxxxxxx Xx., Xxxxxxxxxx, XX 00000, attention of Xxxx Xxxxx with a copy to Xxxxxx
Godward LLP, 000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, attention of Xxxxx
Xxxxxxxx, Esq.
SECTION 14. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of each of the Company, and (e)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby, and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 15. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
24
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
Very truly yours, | ||||
REPLIDYNE, INC. | ||||
By | ||||
Title: |
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED,
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
INCORPORATED
By |
||||
and
By: XXXXXX XXXXXXX & CO. INCORPORATED
By |
||||
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
25
SCHEDULE A
Number of | ||
Name of Underwriter | Initial Securities | |
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
||
Xxxxxx Xxxxxxx & Co. Incorporated |
||
Xxxxx & Co., LLC |
||
Pacific Growth Equities, LLC |
||
Total |
l | |
Sch A - 1
SCHEDULE B
Number of Initial | Maximum Number of Option | |||
Securities to be Sold | Securities to Be Sold | |||
REPLIDYNE, INC. |
||||
Total |
Sch B - 1
SCHEDULE C
REPLIDYNE, INC.
l Shares of Common Stock
(Par Value $0.001 Per Share)
l Shares of Common Stock
(Par Value $0.001 Per Share)
1. The initial public offering price per share for the Securities, determined as provided in said
Section 2, shall be $l.
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be
$l, being an amount equal to the initial public offering price set forth above less $l
per share; provided that the purchase price per share for any Option Securities purchased upon the
exercise of the overallotment option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and payable on the Initial
Securities but not payable on the Option Securities.
Sch C - 1
SCHEDULE D
[List stockholders and holders of options and warrants to sign Lock-Up Agreement by date of
Agreement]
Sch D - 1
SCHEDULE E
[EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS]
Sch E - 1
Exhibit A
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
[ *** ]
A-1
[ *** ]
A-2
[ *** ]
A-3
[ *** ]
A-4
Exhibit B
FORM OF OPINION OF REGULATORY COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(c)
TO BE DELIVERED PURSUANT TO SECTION 5(c)
[ *** ]
B-1
Exhibit C
FORM OF OPINION OF INTELLECTUAL PROPERTY COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(d)
TO BE DELIVERED PURSUANT TO SECTION 5(d)
[ *** ]
C-1
[ *** ]
C-2
Exhibit D
l, 2006
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by Replidyne, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director]1 of Replidyne,
Inc., a Delaware corporation (the “Company”), understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and Xxxxxx Xxxxxxx & Co. Incorporated
(“Xxxxxx Xxxxxxx”) propose to enter into a Purchase Agreement (the “Purchase Agreement”) with the
Company providing for the public offering of shares (the “Securities”) of the Company’s common
stock, par value $0.001 per share (the “Common Stock”) pursuant to a Registration Statement on Form
S-1 (the “Registration Statement”) to be filed with the Securities and Exchange Commission. In
recognition of the benefit that such an offering will confer upon the undersigned as a stockholder
[and an officer and/or director] of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of 180 days from the date
of the Purchase Agreement, the undersigned will not, without the prior written consent of Xxxxxxx
Xxxxx and Xxxxxx Xxxxxxx, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s
Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration
statement under the Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any
1 | Delete or revise bracketed language as appropriate. |
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transaction that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be
settled by delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day lock-up period, the Company issues an earnings
release or publicly announces material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 180-day lock-up period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the 180-day lock-up period,
the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the public announcement of
the material news or the occurrence of the material event, as applicable, unless Xxxxxxx Xxxxx and
Xxxxxx Xxxxxxx waive, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
180-day lock-up period pursuant to the previous paragraph will be delivered by Xxxxxxx Xxxxx and
Xxxxxx Xxxxxxx to the Company (in accordance with Section 12 of the Purchase Agreement) and that
any such notice properly delivered will be deemed to have been given to, and received by, the
undersigned. The undersigned further agrees that, prior to engaging in any transaction or taking
any other action that is subject to the terms of this lock-up agreement during the period from the
date of this lock-up agreement to and including the 34th day following the expiration of
the initial 180-day lock-up period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has received written confirmation
from the Company that the 180-day lock-up period (as may have been extended pursuant to the
previous paragraph) has expired.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
Notwithstanding anything to the contrary in this lock-up agreement, the undersigned may
transfer shares of Common Stock or any security convertible into shares of Common Stock (i) as a
bona fide gift or gifts; (ii) as a distribution to general or limited partners, stockholders or
members of the undersigned; (iii) if the undersigned is a corporation, to an affiliate or
affiliates of the corporation; or (iv) by will or intestate succession to the undersigned’s
immediate family or to a trust, the beneficiaries of which are exclusively the undersigned or
members of the undersigned’s immediate family; provided, however, that in the case
of any transfer pursuant to clauses (i), (ii), (iii) or (iv):
(a) the undersigned provides prior written notice of such gift, pledge, distribution or
transfer to Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx;
(b) each donee, pledgee, distributee or transferee (as the case may be) executes an agreement
stating that such party is bound by the restrictions set forth herein;
(c) any such transfer does not involve a disposition for value; and
(d) such transfer is not required to be reported, and the undersigned does not otherwise
voluntarily report such transfer, in any public report or filing with the Securities and Exchange
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Commission during the lock-up period.
For purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin.
Notwithstanding anything to the contrary contained herein, shares of Common Stock acquired in
open market transactions after the date of the Purchase Agreement shall not be subject to this
lock-up agreement, so long as such transactions are not required to be reported, and the
undersigned does not otherwise voluntarily report such transactions, in any public report or filing
with the Securities and Exchange Commission.
In addition, Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, on behalf of the underwriters named in the
Purchase Agreement, hereby consent to (i) the establishment by the undersigned of a plan or
arrangement that is intended to satisfy the affirmative defense conditions set forth in Rule
10b5-1(c) of the Securities Exchange Act of 1934, as amended, and pursuant to which the
undersigned will arrange for sales of securities of the Company (the “10b5-1 Plan”) and (ii) the
announcement by the Company or the undersigned of such 10b5-1 Plan during the lock-up period;
provided, however, that (a) in no event shall the undersigned be able to complete a
sale of securities of the Company pursuant to such 10b5-1 Plan prior to the expiration of the
lock-up period, and (b) any announcement pursuant to clause (ii) of this sentence shall include
language setting forth the prohibitions contained in clause (a) of this sentence.
If (i) the Purchase Agreement terminates or is terminated prior to the payment for and
delivery of the shares proposed for sale under the Registration Statement, (ii) the Company
notifies you in writing that it does not intend to proceed with the public offering or (iii) the
Purchase Agreement is not executed within one (1) year from the date of this lock-up agreement,
this lock-up agreement shall terminate immediately upon such date and be of no further force and
effect.
Very truly yours, | |||||||||
Please print legibly the exact name of the person or entity on whose behalf you are signing. If you are signing for more than one entity, please either copy the form or print the exact names of all entities above. | |||||||||
Signature: | |||||||||
Print Name: | |||||||||
Title (if applicable): | |||||||||
Dated: |
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