IOMAI CORPORATION [___] Shares Common Stock ($0.01 par value per Share) Underwriting Agreement
[trade date]
UBS Securities LLC
XX Xxxxx & Co., LLC
First Albany Capital Inc.
Susquehanna Financial Group, LLLP
as Managing Underwriters
XX Xxxxx & Co., LLC
First Albany Capital Inc.
Susquehanna Financial Group, LLLP
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Iomai Corporation, a Delaware corporation (the “Company”), proposes to issue and sell
to the underwriters named in Schedule A annexed hereto (the “Underwriters”), for
whom you are acting as representative, an aggregate of [___] shares (the “Firm
Shares”) of common stock, $0.01 par value per share (the “Common Stock”), of the
Company. In addition, solely for the purpose of covering over-allotments, the Company proposes to
grant to the Underwriters the option to purchase from the Company up to an additional [___]
shares of Common Stock (the “Additional Shares”). The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the “Shares.” The Shares are
described in the Prospectus which is referred to below.
The Company hereby acknowledges that, in connection with the proposed offering of the Shares,
it has requested UBS Financial Services Inc. (“UBS-FinSvc”) to administer a directed share
program (the “Directed Share Program”) under which up to [___] Firm Shares, or [5]%
of the Firm Shares to be purchased by the Underwriters (the “Reserved Shares”), shall be
reserved for sale by UBS-FinSvc at the initial public offering price to the Company’s officers,
directors, employees and consultants and other persons having a relationship with the Company as
designated by the Company (the “Directed Share Participants”) as part of the distribution
of the Shares by the Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities Dealers, Inc. (the
“NASD”) and all other applicable laws, rules and regulations. The number of Shares
available for sale to the general public will be reduced to the extent that Directed Share
Participants purchase Reserved Shares. The Underwriters may offer any Reserved Shares not
purchased by Directed Share Participants to the general public on the same basis as the other
Shares being issued and sold hereunder. The Company has supplied UBS-FinSvc with the names,
addresses and telephone numbers of the individuals or other entities which the Company has
designated to be participants in the Directed Share Program. It is understood that any number of
those so designated to participate in the Directed Share Program may decline to do so.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
“Act”), with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (File No. 333-128765) under the Act, including a prospectus,
relating to the Shares.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof,
(ii) any information contained in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act and deemed, pursuant to Rule 430A or Rule 430C under the Act, to be part of the
registration statement at the Effective Time, and (iii) any registration statement filed to
register the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectuses relating to the
Shares. Except where the context otherwise requires, “Preliminary Prospectus,” as used
herein, means each such preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as may be required under
the Act), or, if no such filing is required, the final prospectus included in the Registration
Statement at the time it became effective under the Act, in each case in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Shares.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule B attached hereto and each “road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Shares contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Act) (each such road show, a “Road Show”).
“Disclosure Package,” as used herein, means any Preliminary Prospectus together with
any combination of one or more of the Permitted Free Writing Prospectuses, if any.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term “or,” as used herein, is not exclusive.
The Company has prepared and filed, in accordance with Section 12 of Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”), a registration statement (as amended, the “Exchange Act Registration Statement”)
on Form 8-A (File No. [___]) under the Exchange Act to register, under Section 12(g) of the
Exchange Act, the class of securities consisting of the Common Stock.
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The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $[___] per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares
as soon after the effective date of the Registration Statement as in your judgment is advisable and
(ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial public offering to
such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the Company, ratably in accordance with the number of
Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for the Firm Shares.
The Over-Allotment Option may be exercised by UBS Securities LLC (“UBS”) on behalf of the
several Underwriters at any time and from time to time on or before the thirtieth day following the
date of the Prospectus, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is being exercised and
the date and time when the Additional Shares are to be delivered (any such date and time being
herein referred to as an “additional time of purchase”); provided, however,
that no additional time of purchase shall be earlier than the “time of purchase” (as defined below)
nor earlier than the second business day after the date on which the Over-Allotment Option shall
have been exercised nor later than the tenth business day after the date on which the
Over-Allotment Option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on [closing date] (unless another time shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are to be made is hereinafter sometimes called “the time of
purchase.” Electronic transfer of the Firm Shares shall be made to you at the time of purchase
in such names and in such denominations as you shall specify.
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Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Xxxxx Xxxxxxxxxx LLP at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on the date of the closing of the purchase
of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of Shares
pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing
Prospectus or the effectiveness of the Registration Statement has been issued, and no
proceedings for such purpose have been instituted or, to the Company’s knowledge, are
contemplated by the Commission; the Exchange Act Registration Statement has become effective
as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will comply, in all material respects,
with the requirements of the Act; the Registration Statement did not, as of the Effective
Time, 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;
each Preliminary Prospectus complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the requirements of the Act;
at no time during the period that begins on the earlier of the date of such Preliminary
Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends
at the time of purchase did or will any Preliminary Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and at no time during such period did or will
any Preliminary Prospectus, as then amended or supplemented, together with any combination
of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an
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
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circumstances under which they were made, not misleading; the Prospectus will comply,
as of its date, the date that it is filed with the Commission, the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, in all material respects,
with the requirements of the Act (including, without limitation, Section 10(a) of the Act);
at no time during the period that begins on the earlier of the date of the Prospectus and
the date the Prospectus is filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the end of the period during
which a prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; at no time during the period that begins on the date of such Permitted Free
Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing
Prospectus include an untrue statement of a material fact or, when taken together with the
Disclosure Package, omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
with respect to any statement contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in the Registration
Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing
Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Preliminary Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus
is accompanied or preceded by the most recent Preliminary Prospectus that contains a price
range or the Prospectus, as the case may be, and that such Permitted Free Writing Prospectus
is so sent or given after the Registration Statement was filed with the Commission (and
after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under
the Act, filed with the Commission), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433
(without reliance on subsections (b), (c) and (d) of Rule 164); the Preliminary Prospectus
dated [date] is a prospectus that, other than by reason of Rule 433 or Rule 431 under the
Act, satisfies the requirements of Section 10 of the Act, including a price range where
required by rule; neither the Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer
and sale of the Shares, “free writing
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prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433
under the Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the
Act with respect to the offering of the Shares contemplated by the Registration Statement;
the parties hereto agree and understand that the content of any and all “road shows” (as
defined in Rule 433 under the Act) related to the offering of the Shares contemplated hereby
is solely the property of the Company; the Company has caused there to be made available at
least one version of a “bona fide electronic road show” (as defined in Rule 433 under the
Act) in a manner that, pursuant to Rule 433(d)(8)(ii) under the Act, causes the Company not
to be required, pursuant to Rule 433(d) under the Act, to file, with the Commission, any
Road Show;
(d) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the Preliminary
Prospectuses and the Prospectus entitled “Capitalization” and “Description of capital stock”
(and any similar sections or information, if any, contained in any Permitted Free Writing
Prospectus), and, as of the time of purchase and any additional time of purchase, as the
case may be, the Company shall have an authorized and outstanding capitalization as set
forth in the sections of the Registration Statement and the Prospectus entitled
“Capitalization” and “Description of capital stock” (and any similar sections or
information, if any, contained in any Permitted Free Writing Prospectus) (subject, in each
case, to the issuance of shares of Common Stock upon exercise of stock options and warrants
disclosed as outstanding in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus and the grant of options under existing stock
option and stock purchase plans described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus); all of the issued and
outstanding shares of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and non-assessable, have been issued
in compliance, in all material respects, with all applicable securities laws and were not
issued in violation of any preemptive right, resale right, right of first refusal or similar
right; prior to the time of purchase, all outstanding shares of Series B preferred stock,
par value $0.01 per share, and Series C preferred stock, par value $0.01 per share, of the
Company shall convert into shares of Common Stock in the manner described in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus; prior to the date hereof, the Company has duly effected and completed a 13-for-1
reverse stock split of the Common Stock in the manner described in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
and the Amended and Restated Certificate of Incorporation of the Company and the Amended and
Restated Bylaws of the Company, each in the form filed as an exhibit to the Registration
Statement, have been heretofore duly authorized and approved in accordance with the Delaware
General Corporation Law and shall become effective and in full force and effect at or before
the time of purchase; the Shares are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory distribution, on the
Nasdaq National Market (the “Nasdaq”);
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(e) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with the requisite corporate power
and authority to own, lease and operate its properties and conduct its business as described
in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, to execute and deliver this Agreement and to
issue, sell and deliver the Shares as contemplated herein;
(f) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have a material
adverse effect on the business, properties, financial condition, results of operations or
prospects of the Company (a “Material Adverse Effect”);
(g) the Company has no subsidiaries (as defined under the Act); the Company does not
own, directly or indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any material equity interest in any firm, partnership,
joint venture, association or other entity; complete and correct copies of the charter and
the bylaws of the Company and all amendments thereto have been delivered to you, and, except
as set forth in the exhibits to the Registration Statement, no changes therein will be made
on or after the date hereof through and including the time of purchase or, if later, any
additional time of purchase, except for the filing of the Amended and Restated Certificate
of Incorporation, which is described in the Registration Statement, the Preliminary
Prospectus and the Prospectus under the caption “Description of Capital Stock” (and any
similar sections or information, if any, contained in any Permitted Free Writing
Prospectus);
(h) the Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, rights of first
refusal and similar rights;
(i) the capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus; and the
certificates for the Shares are in due and proper form;
(j) this Agreement has been duly authorized, executed and delivered by the Company;
(k) the Company is not in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in any breach or violation
of, constitute a default under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (A) its charter or bylaws, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
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indebtedness, or any license, lease, contract or other agreement or instrument to which
the Company is a party or by the Company or any of its properties may be bound or affected,
or (C) any federal, state, local or foreign law, regulation or rule or any Nasdaq rule or
regulation, or (D) any decree, judgment or order applicable to the Company or any of its
properties, other than, in the case of clause (B) for those conflicts, breaches, violations
or defaults that would not, individually or in the aggregate, have a Material Adverse
Effect;
(l) and the execution, delivery and performance of this Agreement, the issuance and
sale of the Shares and the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would result in any breach or
violation of or constitute a default under or give the holder of any indebtedness (or a
person acting on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (or result in the creation or
imposition of a lien, charge or encumbrance on any property or assets of the Company
pursuant to) (I) the charter or bylaws of the Company, or (II) any indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company is a party or by which
the Company or any of its properties may be bound or affected, or (III) any federal, state,
local or foreign law, regulation or rule or any Nasdaq rule or regulation, or (IV) any
decree, judgment or order applicable to the Company or any of its properties, other than, in
the case of clause (II) for those conflicts, breaches, violations or defaults that would
not, individually or in the aggregate, have a Material Adverse Effect;
(m) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ) or the approval of the stockholders of the
Company is required in connection with the issuance and sale of the Shares or the
consummation by the Company of the transactions contemplated hereby other than (i)
registration of the Shares under the Act and the registration of the Common Stock under the
Exchange Act, each of which has been effected (or, with respect to any registration
statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in
accordance herewith), (ii) the filing of the Amended and Restated Certificate of
Incorporation, which will be effected at or prior to the time of purchase, (iii) and any
necessary qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or (iv) under the Conduct Rules of
the National Association of Securities Dealers, Inc. (the “NASD”);
(n) except as described in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or
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other rights to purchase any shares of Common Stock or shares of any other capital
stock of or other equity interests in the Company and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with the offer and
sale of the Shares; except as described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus, no person has the right,
contractual or otherwise, to cause the Company to register under the Act any shares of
Common Stock or shares of any other capital stock of or other equity interests in the
Company, or to include any such shares or interests in the Registration Statement or the
offering contemplated thereby;
(o) except as described in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus, the Company has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses, authorizations,
consents and approvals from other persons, in order to conduct its business; the Company is
not in violation of, or in default under, or has received notice of any proceedings relating
to revocation or modification of, any such license, authorization, consent or approval or
any federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material Adverse Effect or
prevent consummation of the transactions contemplated hereby;
(p) there are no actions, suits, claims, investigations or proceedings pending or
threatened or, to the Company’s knowledge, contemplated to which the Company or any of its
respective directors or officers is or would be a party or of which any of its properties is
or would be subject at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NASDAQ), except any such action, suit,
claim, investigation or proceeding which, if resolved adversely to the Company, would not,
individually or in the aggregate, have a Material Adverse Effect or prevent consummation of
the transactions contemplated hereby;
(q) Ernst & Young LLP, whose report on the financial statements of the Company is
included in the Registration Statement, each Preliminary Prospectus and the Prospectus, are
independent registered public accountants as required by the Act and by the rules of the
Public Company Accounting Oversight Board;
(r) the financial statements included in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, together with the
related notes and schedules, present fairly in all material respects the consolidated
financial position of the Company as of the dates indicated and the results of operations
and cash flows of the Company for the periods specified have been prepared in compliance
with the requirements of the Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved;
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all pro forma financial statements or data included in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus comply as to
form in all material respects with the applicable requirements of Regulation S-X of the Act,
including, without limitation, Article 11 thereof, and the assumptions used in the
preparation of such pro forma financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the transactions or circumstances
described therein and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data; the other financial and statistical
data contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus are accurately presented and prepared on a basis
consistent with the financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be included in the
Registration Statement, any Preliminary Prospectus or the Prospectus that are not included
as required; the Company does not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not described in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
and all disclosures contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable;
(s) subsequent to the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of operations of the
Company, (ii) any transaction which is material to the Company, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet obligations), incurred by
the Company, which is material to the Company, (iv) any change in the capital stock or
outstanding indebtedness of the Company or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company;
(t) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), substantially in the form set forth as Exhibit A
hereto, of (i) each of its directors and “officers” (within the meaning of Rule 16a-1(f)
under the Exchange Act); (ii) holders of an aggregate of over [95%] of the outstanding and
issuable shares of capital stock of the Company; and (iii) each Directed Share Participant;
(u) the Company is not, and any time during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares will not be, and, after
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giving effect to the offering and sale of the Shares, will not be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are defined in
the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(v) the Company owns all property (real and personal) described in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as being owned by any of them, free and clear of all liens, claims, security
interests or other encumbrances, other than those disclosed in the Registration Statement
and Prospectus; all the property described in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus as being held under
lease by the Company is held thereby under valid, subsisting and enforceable leases;
(w) the Company owns, or has obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets and other proprietary
information described in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as being owned or licensed by it or
which are, to the Company’s knowledge, necessary for the conduct of its business as
currently conducted or as proposed to be conducted (including the commercialization of
products or services described in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any Permitted Free Writing Prospectus as under development) (collectively,
“Intellectual Property”) except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material Adverse Effect; (i)
there are no third parties who have or, to the Company’s knowledge after due inquiry, will
be able to establish rights to any Intellectual Property, except for, and to the extent of,
the ownership rights of the owners of the Intellectual Property which the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus
disclose is licensed to the Company; (ii) there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such action,
suit, proceeding or claim; (iv) there is no pending or threatened action, suit, proceeding
or claim by others challenging the validity, enforceability or scope of any Intellectual
Property, and the Company is unaware of any facts which would form a reasonable basis for
any such action, suit, proceeding or claim; (v) there is no pending or threatened action,
suit, proceeding or claim by others that the Company infringes or otherwise violates any
patent, trademark, tradename, service name, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; (vi) the Company has complied with the
terms of any agreement pursuant to which Intellectual Property has been licensed to the
Company, and all such agreements are in full force and effect; (vii) the sale of any product
or potential product described in the Registration Statement or Prospectus by the Company
would not be held to infringe any claims in any patents of third parties; (viii) there is no
patent or patent application that contains claims that interfere with the issued or pending
claims of any of the Intellectual
- 11 -
Property or that challenges the validity, enforceability or scope of any of the
Intellectual Property; (ix) there is no prior art that renders any patent application owned
by the Company of the Intellectual Property unpatentable that has not been disclosed to the
U.S. Patent and Trademark Office; and (x) the product candidates described in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as under development by the Company fall within the scope of the claims
of one or more patents owned by, or exclusively licensed to, the Company;
(x) the Company is not engaged in any unfair labor practice; except for matters which
would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the Company’s knowledge after due
inquiry, threatened against the Company before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective bargaining agreements
is pending or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to
the Company’s knowledge after due inquiry, threatened against the Company and (C) no union
representation dispute currently existing concerning the employees of the Company, and (ii)
to the Company’s knowledge after due inquiry, (A) no union organizing activities are
currently taking place concerning the employees of the Company and (B) there has been no
violation of any federal, state, local or foreign law relating to discrimination in the
hiring, promotion or pay of employees, any applicable wage or hour laws or any provision of
the Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules and
regulations promulgated thereunder concerning the employees of the Company;
(y) the Company and its properties, assets and operations each is in compliance with,
and holds all permits, authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate, have a Material
Adverse Effect; there are no past, present or, to the Company’s knowledge after due inquiry,
reasonably anticipated future events, conditions, circumstances, activities, practices,
actions, omissions or plans that could reasonably be expected to give rise to any material
costs or liabilities to the Company under, or to interfere with or prevent compliance by the
Company with, Environmental Laws; except as would not, individually or in the aggregate,
have a Material Adverse Effect, the Company (i) is not the subject of any investigation,
(ii) has not received any notice or claim, (iii) is not a party to or affected by any
pending or threatened action, suit or proceeding, (iv) is not bound by any judgment, decree
or order or (v) has not entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release or threatened release or
cleanup at any location of any Hazardous Materials (as defined below) (as used herein,
“Environmental Law” means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources, including those
relating to the distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of Hazardous Materials, and
“Hazardous Materials” means any
- 12 -
material (including, without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(z) no tax returns required to be filed by the Company are delinquent, and all taxes
and other assessments of a similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable thereto due or claimed to
be due from such entities have been timely paid, other than those being contested in good
faith and for which adequate reserves have been provided;
(aa) the Company maintains insurance covering its properties, operations, personnel and
businesses as the Company reasonably deems adequate; such insurance insures against such
losses and risks to an extent which is adequate in accordance with customary industry
practice to protect the Company and its business; all such insurance is fully in force on
the date hereof and will be fully in force at the time of purchase and any additional time
of purchase;
(bb) the Company has not sustained since the date of the last audited financial
statements included in the Registration Statement, the Preliminary Prospectus and the
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree;
(cc) the Company has not sent or received any communication regarding termination of,
or intent not to renew, any of the contracts or agreements referred to or described in any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or referred
to or described in, or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Company or, to the Company’s knowledge
after due inquiry, any other party to any such contract or agreement;
(dd) the Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences;
(ee) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company is
- 13 -
made known to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within the Company, and such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were established; the Company’s
independent auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) any significant deficiencies in the design or operation of internal
controls which could adversely affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal controls; any
material weaknesses in internal controls have been identified for the Company’s auditors;
since the date of the most recent evaluation of such disclosure controls and procedures,
there have been no changes in internal controls that have materially negatively affected, or
could materially negatively affect, internal controls; and the Company has taken all actions
which are reasonably necessary to ensure that, upon and at all times after filing of the
Registration Statement, the Company and its officers and directors, in their capacities as
such, will be in compliance in all material respects with the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and regulations
promulgated thereunder;
(ff) all statistical or market-related data included in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus are based on
or derived from sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from such sources to the
extent required;
(gg) neither the Company nor, to the Company’s knowledge after due inquiry, any
employee or agent of the Company has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention
of funds is of a character required to be disclosed in the Registration Statement, any
Preliminary Prospectus or the Prospectus;
(hh) the preclinical tests and clinical trials that are described in, or the results of
which are referred to in, the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus were and, if still pending, are being
conducted in accordance with protocols filed with the appropriate regulatory authorities for
each such test or trial, as the case may be; the description of the results of such tests
and trials contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus are accurate and fairly present the data
derived from such tests and trials, and the Company has no knowledge of any other studies or
tests the results of which are inconsistent with, or otherwise call into question, the
results described or referred to in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any Permitted Free Writing Prospectus; the Company has not received any
notices or other correspondence from the Food and Drug Administration of the U.S. Department
of Health and Human Services or any committee thereof or from any other U.S. or foreign
government or drug or medical device regulatory agency requiring the termination, suspension
or modification of any clinical trials that are
- 14 -
described or referred to in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus; and the Company has operated and
currently is in compliance in all material respects with all applicable rules, regulations
and policies of the U.S. Food and Drug Administration and comparable foreign drug or medical
device regulatory agencies outside of the United States;
(ii) immediately after the issuance and sale of the Shares as contemplated hereby, no
shares of preferred stock of the Company shall be issued or outstanding; and the issuance
and sale of the Shares as contemplated hereby will not cause any holder of any shares of
capital stock, securities convertible into or exchangeable or exercisable for capital stock
or options, warrants or other rights to purchase capital stock or any other securities of
the Company to have any right to acquire any shares of preferred stock of the Company;
(jj) the Company is in compliance with the Marketplace Rules of the NASDAQ, including,
without limitation, the requirements for initial and continued designation of the Common
Stock as a Nasdaq National Market security;
(kk) except pursuant to this Agreement, the Company has not incurred any liability for
any finder’s or broker’s fee or agent’s commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated hereby or by
the Registration Statement;
(ll) neither the Company nor any of its directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which has constituted or
might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(mm) to the Company’s knowledge after due inquiry, there are no affiliations or
associations between (i) any member of the NASD and (ii) the Company or any of the Company’s
officers, directors or 5% or greater security holders or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or after the
180th day immediately preceding the date the Registration Statement was initially filed with
the Commission, except as disclosed in the Registration Statement (excluding the exhibits
thereto), the Preliminary Prospectuses and the Prospectus;
(nn) the Registration Statement, each Preliminary Prospectus, the Prospectus and each
Permitted Free Writing Prospectus comply, and any further amendments or supplements thereto
will comply, with any applicable laws or regulations of any foreign jurisdiction in which
any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus is
distributed in connection with the Directed Share Program; and no approval, authorization,
consent or order of or filing with any governmental or regulatory commission, board, body,
authority or agency, other than those heretofore obtained, is required in connection with
the offering of the Reserved Shares in any jurisdiction where the Reserved Shares are being
offered; and
- 15 -
(oo) the Company has not offered, or caused the Underwriters to offer, Shares to any
person pursuant to the Directed Share Program with the intent to influence unlawfully (i) a
customer or supplier of the Company to alter the customer’s or supplier’s level or type of
business with the Company, or (ii) a trade journalist or publication to write or publish
favorable information about the Company or any of their respective products or services.
In addition, any certificate signed by any officer of the Company and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be
deemed to be a representation and warranty by the Company as to matters covered thereby, to each
Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may reasonably request for the distribution of the Shares;
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws of any such
jurisdiction (except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may reasonably request for
the purposes contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule) a
prospectus after the nine-month period referred to in Section 10(a)(3) of the Act in
connection with the sale of the Shares, the Company will prepare, at its expense, promptly
upon request such amendment or amendments to the Registration Statement and the Prospectus
as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the
Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement, or a Registration Statement under
Rule 462(b) under the Act, to be filed with the Commission and become effective before the
Shares may be sold, the Company will use its best efforts to cause such post-effective
amendment or such Registration Statement to be filed and become effective as soon as
possible, and the Company will advise you promptly and, if requested by you, will confirm
such advice in writing, (i) when such post-effective amendment or such
- 16 -
Registration Statement has become effective, and (ii) if Rule 430A under the Act is
used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act
(which the Company agrees to file in a timely manner in accordance with such Rules);
(d) to advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, the Exchange Act
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus or for additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; to advise you promptly of any proposal
to amend or supplement the Registration Statement or the Exchange Act Registration
Statement, any Preliminary Prospectus or the Prospectus and to provide you and Underwriters’
counsel copies of any such documents for review and comment a reasonable amount of time
prior to any proposed filing and to file no such amendment or supplement to which you shall
object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares; and to provide you
with a copy of such reports and statements and other documents to be filed by the Company
pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable
amount of time prior to any proposed filing; and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to, and in
accordance with, Rule 462(b) under the Act and pay the applicable fees in accordance with
the Act;
(g) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and, during such time,
subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the
Underwriters promptly such amendments or supplements to such Prospectus as may be necessary
to reflect any such change;
(h) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
- 17 -
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month period, but in any case
not later than 45 days after the end of the fourth fiscal quarter following the fiscal
quarter that includes the effective date (or 90 days if such fourth fiscal quarter is the
last quarter of the Company’s fiscal year);
(i) to furnish to you 5 copies of the Registration Statement, as initially filed with
the Commission, and of all amendments thereto (including all exhibits thereto) and
sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(j) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly financial statements,
if any, of the Company which have been read by the Company’s independent registered public
accountants, as stated in their letter to be furnished pursuant to Section 6(c) hereof;
(k) to apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of proceeds” in the Prospectus and to file such reports with the Commission
with respect to the sale of the Shares and the application of the proceeds therefrom as may
be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue, sale and delivery
of the Shares including any stock or transfer taxes and stamp or similar duties payable upon
the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word
processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies of each thereof to
the Underwriters and (except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale under state or foreign
laws and the determination of their eligibility for investment under state or foreign law as
aforesaid (including the legal fees and filing fees and other disbursements of counsel for
the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers (such counsel fees and expenses not to
exceed $10,000), (v) any listing of the Shares on any securities exchange or qualification
of the Shares for quotation on the NASDAQ and any registration thereof under the Exchange
Act, (vi) any filing for review of the public offering of the Shares by the NASD, including
the legal fees and filing fees and other disbursements of counsel to the Underwriters
relating to NASD matters (such counsel fees and expenses not to exceed $50,000), (vii) the
fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs
and expenses of the Company
- 18 -
relating to presentations or meetings undertaken in connection with the marketing of
the offering and sale of the Shares to prospective investors and the Underwriters’ sales
forces, including, without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel, lodging and other expenses incurred by the officers of the
Company and any such consultants, and the cost of any aircraft chartered by or on behalf of
the Company in connection with the road show, (x) the costs and expenses of qualifying the
Shares for inclusion in the book-entry settlement system of the DTC, (xi) the preparation
and filing of the Exchange Act Registration Statement, including any amendments thereto,
(xii) the offer and sale of the Reserved Shares, including all costs and expenses of
UBS-FinSvc and the Underwriters, including the fees and disbursement of counsel for the
Underwriters and (xiii) the performance of the Company’s other obligations hereunder;
(m) to comply with Rule 433(g) under the Act;
(n) beginning on the date hereof and ending on, and including, the date that is 180
days after the date hereof (the “Lock-Up Period”), without the prior written consent
of UBS, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge,
grant any option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, with respect to, any Common Stock
or securities convertible into or exchangeable or exercisable for Common Stock or warrants
or other rights to purchase Common Stock or any other securities of the Company that are
substantially similar to Common Stock, (ii) file or cause to be declared effective a
registration statement under the Act relating to the offer and sale of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock, (iii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any
such securities, whether any such transaction is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise or (iv) publicly announce an intention to
effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A)
the registration of the Shares and the sales to the Underwriters pursuant to this Agreement,
(B) issuances of Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement (excluding exhibits thereto), each Preliminary
Prospectus and the Prospectus, (C) the issuance of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option or stock purchase plans described in the
Registration Statement (excluding exhibits thereto), each Preliminary Prospectus and the
Prospectus, and (D) the filing of registration statements on Form S-8 relating to shares of
Common Stock which may be issued pursuant to any existing employee stock option or existing
employee stock purchase plan of the Company; provided, however, that if (a)
during the period that
- 19 -
begins on the date that is fifteen (15) calendar days plus three (3) business days
before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period,
the Company issues an earnings release or material news or a material event relating to the
Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces
that it will release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section 4(n) shall
continue to apply until the expiration of the date that is fifteen (15) calendar days plus
three (3) business days after the date on which the issuance of the earnings release or the
material news or material event occurs;
(o) prior to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the Company, the
financial condition, results of operations, business, properties, assets, or liabilities of
the Company, or the offering of the Shares, without your prior consent;
(p) not, at any time at or after the execution of this Agreement, to offer or sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the Shares, in each
case other than the Prospectus;
(q) to not take, directly or indirectly, any action designed to or which may constitute
or which might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(r) to use its best efforts to cause the Common Stock to be listed for quotation on the
NASDAQ and to maintain such listing;
(s) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and
(t) to cause each Directed Share Participant to execute a Lock-Up Agreement and
otherwise to cause the Reserved Shares to be restricted from sale, transfer, assignment,
pledge or hypothecation to such extent as in accordance with the Directed Share Program
materials distributed to each Directed Share Participant by UBS FinSvc and such extent as
may otherwise be required by the NASD and its rules, and to direct the transfer agent to
place stop transfer restrictions upon such Reserved Shares during the Lock-Up Period or any
such longer period of time as may be required by the NASD and its rules; and to comply with
all applicable securities and other applicable laws, rules and regulations in each
jurisdiction in which the Reserved Shares are offered in connection with the Directed Share
Program.
5. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any
reason other than the termination of this Agreement pursuant to the fifth paragraph of Section 8
hereof or the default by one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described in Section
- 20 -
4(l) hereof, reimburse the Underwriters for their reasonable out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, at the time of purchase and, if applicable, at the
additional time of purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Ropes & Xxxx LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each of the other Underwriters, in
the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxxx, Xxxxx & Bockius LLP, special counsel for
the Company with respect to patents and proprietary rights, addressed to the Underwriters,
and dated the time of purchase or the additional time of purchase, as the case may be, with
executed copies for each of the other Underwriters, in the form set forth in Exhibit
C hereto.
(c) You shall have received from Ernst & Young LLP letters addressed to the
Underwriters (with executed copies for each of the Underwriters) in the forms approved by
UBS dated (i) the date of this Agreement, which letter shall cover, without limitation, the
information in the Registration Statement, the Preliminary Prospectus and the various
financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any,
and (ii) the time of purchase and the additional time of purchase, as the case may be, which
letter shall cover, without limitation, the information in the Registration Statement and
the Prospectus, and the various financial disclosures, if any, contained in the Permitted
Free Writing Prospectuses, if any.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, dated the time of purchase or the additional time of purchase, as the case may
be, in form and substance reasonably satisfactory to UBS.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(f) The Registration Statement, the Exchange Act Registration Statement and any
registration statement required to be filed, prior to the sale of the Shares, under the Act
pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act
or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before
5:30 P.M., New York City time, on the second full business day after the
- 21 -
date of this Agreement (or such earlier time as may be required under the Act).
(g) Prior to the time of purchase, and, if applicable, the additional time of purchase,
(i) no stop order with respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto shall 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; (iii) none of the Preliminary
Prospectuses or the Prospectus, and no amendment or supplement thereto, shall include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they are made,
not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading.
(h) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit D hereto.
(i) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(t) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and the additional time of purchase, as the case may be.
(j) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the
time of purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(k) The Shares shall have been approved for quotation on the NASDAQ, subject only to
notice of issuance and evidence of satisfactory distribution at or prior to the time of
purchase or the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS, if (1) since the time of execution of this Agreement or the earlier
respective dates as of which information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there has been
any material adverse change or any development involving a
- 22 -
prospective material adverse change in the business, properties, management, financial condition or
results of operations of the Company, which would, in the sole judgment of UBS, make it
impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since the
time of execution of this Agreement, there shall have occurred: (A) a suspension or material
limitation in trading in securities generally on the NYSE, the American Stock Exchange or the
NASDAQ; (B) a suspension or material limitation in trading in the Company’s securities on the
NASDAQ; (C) a general moratorium on commercial banking activities declared by either federal or New
York State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (D) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a national emergency
or war; or (E) any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(D) or (E), in the sole judgment of UBS, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or (3) since the time of execution of this Agreement, there shall have
occurred any downgrading, or any notice or announcement shall have been given or made of: (A) any
intended or potential downgrading or (B) any watch, review or possible change that does not
indicate an affirmation or improvement in the rating accorded any securities of or guaranteed by
the Company by any “nationally recognized statistical rating organization,” as that term is defined
in Rule 436(g)(2) under the Act.
If UBS elects to terminate this Agreement as provided in this Section 7, the Company and each
other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(l), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you
- 23 -
may designate with the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company to any Underwriter and without any liability on the part of any non-defaulting Underwriter
to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not
- 24 -
misleading, except insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for use in,
the Registration Statement or arises out of or is based upon any omission or alleged
omission to state a material fact in the Registration Statement in connection with such
information, which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary to make such
information not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include any Preliminary Prospectus, the Prospectus and any
amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus, in
any “issuer information” (as defined in Rule 433 under the Act) of the Company filed or
required to be filed with the Commission or in any Prospectus together with any combination
of one or more of the Permitted Free Writing Prospectuses, if any, or arises out of or is
based upon any omission or alleged omission 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, except, with respect to such Prospectus or Permitted Free Writing
Prospectus, insofar as any such loss, damage, expense, liability or claim arises out of or
is based upon any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter furnished in writing by
or on behalf of such Underwriter through you to the Company expressly for use in, such
Prospectus or Permitted Free Writing Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or Permitted Free
Writing Prospectus in connection with such information, which material fact was not
contained in such information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which they were
made, not misleading or (iii) the Directed Share Program, except, with respect to this
clause (iii), insofar as such loss, damage, expense, liability or claim is finally
judicially determined to have resulted from the gross negligence or willful misconduct of
the Underwriters in conducting the Directed Share Program.
Without limitation of and in addition to its obligations under the other paragraphs of
this Section 9, the Company agrees to indemnify, defend and hold harmless UBS-FinSvc and its
partners, directors and officers, and any person who controls UBS-FinSvc within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or severally,
UBS-FinSvc or any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim (1) arises out of or is
based upon (a) any of the matters referred to in clauses (i) through (iii) of the first
paragraph of this Section 9(a), or (b) any untrue statement or alleged untrue statement of a
material fact contained in any material prepared by or on behalf or with the consent of the
Company for distribution to Directed Share Participants in connection with the Directed
Share Program or caused by any
- 25 -
omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; (2) is or was caused by
the failure of any Directed Share Participant to pay for and accept delivery of Reserved
Shares that the Directed Share Participant has agreed to purchase; or (3) otherwise arises
out of or is based upon the Directed Share Program, provided, however, that
the Company shall not be responsible under this clause (3) for any loss, damage, expense,
liability or claim that is finally judicially determined to have resulted from the gross
negligence or willful misconduct of UBS-FinSvc in conducting the Directed Share Program.
Section 9(c) shall apply equally to any Proceeding (as defined below) brought against
UBS-FinSvc or any such person in respect of which indemnity may be sought against the
Company pursuant to the immediately preceding sentence, except that the Company shall be
liable for the expenses of one separate counsel (in addition to any local counsel) for
UBS-FinSvc and any such person, separate and in addition to counsel for the persons who may
seek indemnification pursuant to the first paragraph of this Section 9(a), in any such
Proceeding.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in, and in conformity with information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through you to the Company expressly for use
in, the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact in such Registration Statement in
connection with such information, which material fact was not contained in such information
and which material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, a Prospectus or a Permitted Free Writing
Prospectus, or arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information, in the
light of the circumstances under which they were made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company or an Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b), respectively, of this Section 9, such indemnified party
shall
- 26 -
promptly notify such indemnifying party in writing of the institution of such
Proceeding and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such indemnifying party shall not relieve such indemnifying party from any liability
which such indemnifying party may have to any indemnified party or otherwise, except to the
extent that such indemnifying party has been materially prejudiced (through the forfeiture
of substantive rights or defenses). The indemnified party or parties shall have the right
to employ its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless the employment
of such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such Proceeding or the indemnifying party shall not have,
within a reasonable period of time in light of the circumstances, employed counsel to defend
such Proceeding or such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from, additional to or in
conflict with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood, however, that second
paragraph of Section 9(a), such indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the indemnified parties
who are parties to such Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but, if settled with its
written consent, such indemnifying party agrees to indemnify and hold harmless the
indemnified party or parties from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second sentence of this Section 9(c), then the
indemnifying party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 days’ prior notice of its intention to settle.
No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
- 27 -
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Shares. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission 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 amount
paid or payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 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
subsection (d) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter
- 28 -
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its directors or officers or any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery of the Shares. The
Company and each Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the Company’s officers
or directors in connection with the issuance and sale of the Shares, or in connection with
the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus.
10. Information Furnished by the Underwriters. The statements set forth in the first
first paragraph under the caption “Underwriting — Commissions and Discounts” and under the caption
“Plan Underwriting — Price Stabilization and Short Position” paragraphs under the caption
“Underwriting” in the Prospectus, only insofar as such statements relate to the amount of selling
concession and reallowance or to over-allotment and stabilization activities that may be undertaken
by the Underwriters, constitute the only information furnished by or on behalf of the Underwriters
as such information is referred to in Sections 3 and 9 hereof. The Underwriters represent that
they have not and will not use any “free writing prospectus,” as defined in Rule 405 under the Act,
required to be filed with the Commission by the Company or any Underwriter pursuant to Rule 433
under the Act, other than any Permitted Free Writing Prospectus or as consented to by the Company.
11. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000, Attention: Syndicate Department and, if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the Company at 00 Xxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, Chief Executive Officer.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against any
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) waive all right
to trial by jury in any action, proceeding or
- 29 -
counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and binding upon the
Company and may be enforced in any other courts to the jurisdiction of which the Company is or may
be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
15. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on an arm’s length basis and
in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the
Company, its management, stockholders, creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company, either in connection with
the transactions contemplated by this Agreement or any matters leading up to such transactions, and
the Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
- 30 -
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
- 31 -
If the foregoing correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
| Very truly yours, | ||||
| Iomai Corporation | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A | ||||
| UBS Securities LLC | ||||
| XX Xxxxx & Co., LLC | ||||
| First Albany Capital Inc. | ||||
| Susquehanna Financial Group, LLLP | ||||
By:
|
UBS Securities LLC | |||
By: |
||||
| Name: | ||||
| Title: | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
SCHEDULE A
| Number of | ||||
| Underwriter | Firm Shares | |||
UBS SECURITIES LLC |
[____] | |||
XX Xxxxx & Co., LLC |
[____] | |||
First Albany Capital Inc. |
||||
Susquehanna Financial Group, LLLP |
||||
Total |
[____] | |||
SCHEDULE B
Permitted Free Writing Prospectuses
EXHIBIT A
Lock-Up Agreement
___________ ___, 2005
UBS Securities LLC
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by Iomai Corporation, a
Delaware corporation (the “Company”), and you and the other underwriters named in Schedule
A to the Underwriting Agreement, with respect to the public offering (the “Offering”) of
common stock, par value $0.01 per share, of the Company (the “Common Stock”).
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
for a period (the “Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 180 days after the date of the final prospectus relating to the
Offering, the undersigned will not, without the prior written consent of UBS Securities LLC, (i)
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase
or otherwise dispose of or agree to dispose of, directly or indirectly, or file (or participate in
the filing of) a registration statement with the Securities and Exchange Commission (the
“Commission”) in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder (the “Exchange Act”) with respect to, any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to
purchase Common Stock or any such securities, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock or any such securities, whether any such
transaction is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (iii) publicly announce an intention to effect any transaction specified in clause (i)
or (ii). The foregoing sentence shall not apply to (a) the registration of or sale to the
Underwriters (as defined in the Underwriting Agreement) of any Common Stock pursuant to the
Offering and the Underwriting Agreement, (b) bona fide gifts or distributions (including if the
stockholder is a
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partnership or limited liability company, to its partners or members), provided the recipient
thereof agrees in writing with the Underwriters to be bound by the terms of this Lock-Up Agreement,
(c) dispositions to any trust for the direct or indirect benefit of the undersigned and/or the
immediate family of the undersigned, provided that such trust agrees in writing with the
Underwriters to be bound by the terms of this Lock-Up Agreement, or (d) transfers which occur by
operation of law, such as the rules of intestate succession or statutes governing the effects of a
merger, provided the transferee or transferees agree in writing with the Underwriters to be bound
by the terms of this Lock-up Agreement. For purposes of this paragraph, “immediate family” shall
mean the undersigned and the spouse, any lineal descendent, father, mother, brother or sister of
the undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of a registration statement relating to
the Offering. The undersigned further agrees that, for the Lock-Up Period, the undersigned will
not, without the prior written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock
or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is fifteen
(15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this
Lock-Up Agreement shall continue to apply until the expiration of the date that is fifteen (15)
calendar days plus three (3) business days after the date on which the issuance of the earnings
release or the material news or material event occurs;
* * *
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If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated prior to the “time
of purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated
and the undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||
| Name: |
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EXHIBIT B
________ __, 2006
UBS Securities LLC
XX Xxxxx & Co. LLC
First Albany Capital
Susquehanna Financial Group, LLLP
As Representatives of the
Several Underwriters Named
in the Underwriting Agreement
XX Xxxxx & Co. LLC
First Albany Capital
Susquehanna Financial Group, LLLP
As Representatives of the
Several Underwriters Named
in the Underwriting Agreement
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as counsel for Iomai Corporation, a Delaware corporation (the “Company”), in
connection with the issuance and sale by the Company of ___shares (the “Shares”) of its
Common Stock, $0.01 par value per share (the “Common Stock”). This opinion is furnished to you as
Representatives of the several Underwriters pursuant to Section 6(a) of the underwriting agreement
dated ___, 2006 (the “Underwriting Agreement”), among the Company and you as
Representatives of the several underwriters listed on Schedule A thereto relating to the issuance
and sale of the Shares. Terms defined in the Underwriting Agreement and not otherwise defined
herein are used herein with the meanings so defined.
In connection with this letter, we have examined signed copies of the registration statement
of the Company on Form S-1 (No. 333-128765), together with all amendments and all exhibits thereto
(the “Registration Statement”), all as filed prior to the date hereof with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”); a
copy of the prospectus dated ___, 2006 relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act (the “Prospectus”); an
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executed copy of the Underwriting Agreement; and such other documents as we have deemed
appropriate in order to enable us to render the opinions expressed herein. Additionally, we have
relied upon oral advice from the staff of the Commission to the effect that the Registration
Statement became effective on ___, 2006.
We express no opinion as to the laws of any jurisdiction other than the General Corporation
Law of the State of Delaware, the federal laws of the United States of America, and the laws of the
State of New York.
Insofar as this opinion relates to factual matters, information with respect to which is in
the possession of the Company, we have made inquiries to the extent we believe reasonable about
such matters and have relied upon representations made by the Company in the Underwriting Agreement
and representations made to us by one or more officers of the Company. With respect to our opinion
set forth in paragraph 8 below, we have not searched the dockets of any court, administrative body,
agency or other filing office in any jurisdiction. With respect to our opinions in the first two
sentences of paragraph 1 below, our opinions are based solely on certificates from the Secretary of
State of the State of Delaware and from the Secretary of State of the State of Maryland.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is avalidly existing corporation in good
standing under the laws of the state of Delaware. The Company is duly qualified to do business as
a foreign corporation in good standing in the State of Maryland. The Company has the corporate
power to own its properties and conduct its business as described in the Preliminary Prospectus and
the Prospectus
2. The Shares have been duly authorized and, when issued and delivered to and paid for by the
Underwriters as contemplated in the Underwriting Agreement, will be validly issued, fully paid and
non-assessable.
3. The authorized and outstanding capital stock of the Company is as set forth in the
Capitalization table contained in the Preliminary Prospectus and the Prospectus. The outstanding
shares of capital stock of the Company (a) have been duly authorized and validly issued and are
fully paid and non-assessable, and (b) are free of preemptive, subscription or similar rights under
the Delaware General Corporation Law (the “DGCL”) or the Certificate of Incorporation or By-Laws of
the Company or under any agreement or instrument described in the Preliminary Prospectus or the
Prospectus or filed as an exhibit to the Registration Statement; the Shares, when issued, will be
free of preemptive, subscription or similar rights under the DGCL or the Certificate of
Incorporation or By-Laws of the Company or any agreement or instrument described in the Preliminary
Prospectus and the Prospectus or filed as an exhibit to the Registration Statement; and the
certificates for the Shares are in due and proper form and conform to the requirements of the DGCL.
4. As to the legal matters, the Shares conform in all material respects to the description
thereof contained in the Preliminary Prospectus or the Prospectus.
B-2
5. To our knowledge, except as described in the Preliminary Prospectus and the Prospectus or
any such rights as have been waived, no holder of any security of the Company has the right to
require registration of shares of Common Stock or other securities of the Company in connection
with registration of the Shares.
6. The Company, after giving effect to the sale of the Shares and the application of the
proceeds thereof as described in the Preliminary Prospectus and the Prospectus, is not subject to
regulation as an “investment company” under in the Investment Company Act of 1940, as amended.
7. All regulatory consents, authorizations, approvals and filings required to be obtained or
made by the Company under the federal laws of the United States, the laws of the State of New York,
and the DGCL for the issuance and sale of the Shares by the Company and the performance of the
Company’s obligations under the Underwriting Agreement have been obtained or made, except such as
may be required under state securities or blue sky laws, as to which we express no opinion.
8. The execution and delivery of the Underwriting Agreement and the issuance and sale by the
Company of the Shares will not (a) violate the Certificate of Incorporation or By-Laws of the
Company, (b) breach or result in a default (or constitute an event which, with notice, lapse of
time or both would constitute a default) under any agreement or instrument described in the
Preliminary Prospectus or the Prospectus or listed as an exhibit to the Registration Statement or
(c) violate any applicable provision of the DGCL, any applicable law of the State of New York, or
any applicable United States federal law or regulation or any order, writ, injunction or decree
specifically naming the Company, except that we express no opinion as to state securities or as to
compliance with the antifraud provisions of federal or state securities laws.
9. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
The Registration Statement became effective on ___, 2006, and on ___, 2006, the
Prospectus was filed with the Commission pursuant to Rule 424(b) under the Act. We do not know of
the issuance of any stop order suspending the effectiveness of the Registration Statement or any
part thereof by the Commission or of any proceeding for that purpose under the Act.
In the course of the preparation by the Company of the Registration Statement, the Preliminary
Prospectus, and the Prospectus, we have participated in discussions with your representatives and
those of the Company and its independent public accounting firm, in which the business and affairs
of the Company and the contents of the Registration Statement, the Prospectus, and Preliminary
Prospectus were discussed. On the basis of information that we have gained in the course of our
representation of the Company in connection with its preparation of the Registration Statement, the
Preliminary Prospectus, and the Prospectus and our participation in the discussions referred to
above, we believe that the Registration Statement, as of its effective date, and the Prospectus and
the Preliminary Prospectus, as of their respective dates, complied as to form in all material
respects with the requirements of the Act and the rules and regulations of the Commission
thereunder, and we do not know of any legal or governmental
B-3
proceeding to which the Company is a party or to which its property is subject required to be
described in the Preliminary Prospectus or the Prospectus which is not so described, nor of any
contract or other document required to be filed as an exhibit to the Registration Statement which
is not so filed. Further, based on such information and participation, nothing that has come to
our attention has caused us to believe that as of its effective date the Registration Statement
contained any untrue statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or that the
Prospectus as of its date or as of the date hereof contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading. In
addition, nothing has come to our attention that has caused us to believe that the Preliminary
Prospectus, when taken together with (a) the number of shares to be sold in the offering and (b)
the public offering price per share, each as reflected on the cover page of the Prospectus, as of
___p.m. on ___, 2006, contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of circumstances under
which they were made, not misleading. We make no statement, however, as to the financial
statements, including the notes and schedules thereto, or any other financial or accounting data
(or statistical data derived therefrom) set forth or referred to in the Registration Statement, the
Prospectus or the Preliminary Prospectus.
The limitations inherent in the independent verification of factual matters and the nature of
the determinations involved in our review are such that we do not assume any responsibility for the
accuracy, completeness or fairness of the statements made or the information contained in the
Registration Statement, the Prospectus or the Preliminary Prospectus except for (a) under the
caption “Business — Intellectual Property and Proprietary Technology”, insofar as such statements
summarize provisions of the license agreement, dated April 6, 2001, between the Company and the
Xxxxxx Xxxx Army Institute of Research, (b) under the caption “Business — Government regulation”,
insofar as such statements summarize provisions of the United States federal statutes, rules and
regulations administered by the United States Food and Drug Administration, (c) under the caption
“Description of capital stock” insofar as such statements summarize provisions of the Company’s
Certificate of Incorporation or By-Laws or summarize provisions of the DGCL, (d) under the caption
“Shares eligible for future sale”, insofar as such statements summarize provisions of the Act or
Rules 144 and 701 thereunder, (e) under the caption “Underwriting”, insofar as such statements
summarize portions of the Underwriting Agreement, and (f) under the caption “Material US federal
income and estate consequences to non-US holders”, insofar as such statements summarize provisions
of the Internal Revenue Code of 1986, as amended, and applicable US Treasury Regulations, which, in
each case, and subject to any qualifications contained under such captions, accurately
summarize in all material respects such matters.
B-4
This opinion is furnished by us to you as Representatives of the several Underwriters and,
except as otherwise expressly consented to by us in writing, is solely for the benefit of the
several Underwriters.
Very truly yours,
Ropes & Xxxx LLP
B-5
EXHIBIT C
OPINION OF XXXXXX, XXXXX & XXXXXXX LLP
[date]
UBS Securities LLC
XX Xxxxx & Co., LLC
First Albany Capital Inc.
Susquehanna Financial Group, LLLP
As Representatives of the several Underwriters
XX Xxxxx & Co., LLC
First Albany Capital Inc.
Susquehanna Financial Group, LLLP
As Representatives of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
| 1. | We serve as special counsel to the Company with respect to patents and proprietary rights. | |
| 2. | The statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus “Risk factors — If we are unable to protect our intellectual property, we may not be able to operate our business profitably.”, “Risk factors — If the use of our technologies conflicts with the intellectual property rights of third parties, we may incur substantial liabilities and we may be unable to commercialize products based on these technologies in a profitable manner, if at all.”, “Risk factors — We may be involved in lawsuits to protect or enforce our patents or the patents of our collaborators or licensors, which could be expensive and time consuming.” and “Business — Intellectual property and proprietary technology” (collectively, the “Intellectual Property Information”), at the time such Registration Statement became effective, as of the respective dates of the Preliminary Prospectus and the Prospectus and as of the date hereof, are accurate and complete in all material respects and present fairly the information purported to be shown; nothing has come to our attention that causes us to believe that the Intellectual Property Information included in the Registration Statement, at the Effective Time contained an 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 Intellectual Property Information included in the Preliminary Prospectus or the Prospectus, as of the date of the Preliminary Prospectus or the Prospectus, the Time of Sale or the date hereof, included or include an untrue statement of material fact or omitted or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. | |
| 3. | To our knowledge, (i) there are no legal or governmental proceedings pending relating to patent rights, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of the Company, and (ii) no such proceedings are threatened or contemplated by governmental authorities or others. |
C-1
| 4. | We do not know of any contracts or other documents, relating to the patents, trade secrets, trademarks, service marks or other proprietary information or materials of the Company that is of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been so described or filed as required. | |
| 5. | To our knowledge, (i) the Company is not infringing or otherwise violating, and, upon the commercialization and sale of the products or services described in the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus attached hereto as Annex A (each, a “Permitted Free Writing Prospectus”) as under development, neither of them would infringe or otherwise violate, any patents, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of others, and we are unaware of any facts which would form a reasonable basis for a claim of any such infringement, and (ii) there are no infringements by others of any of the patents, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of the Company, and we are unaware of any facts which would form a reasonable basis for a claim of any such infringement. | |
| 6. | We have no knowledge of any facts which would preclude the Company from having valid license rights or clear title to the patents referenced in the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus; we have no knowledge that the Company lacks or will be unable to obtain any rights or licenses to use all patents and other material intangible property and assets that are, or would be, necessary to conduct the business now conducted or proposed to be conducted by the Company as described in the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus, except as described in the Registration Statement (excluding exhibits thereto), the Preliminary Prospectus and the Prospectus; and we are unaware of any facts which form a basis for a finding of unenforceability or invalidity of any of the patents and other material intellectual property and assets of the Company. | |
| 7. | We are not aware of any fact with respect to the patent applications of the Company presently on file that (i) would preclude the issuance of patents with respect to such applications, (ii) would lead us to conclude that such patents, when issued, would not be valid and enforceable in accordance with applicable regulations or (iii) would result in a third party having any rights in any patents issuing from such patent applications. |
Capitalized terms used herein without definition shall have the respective meanings ascribed to
them in the Underwriting Agreement.
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EXHIBIT D
OFFICERS’ CERTIFICATE
Each of the undersigned, Xxxxxxx X. Xxxx, President, Chief Executive Officer and Treasurer,
and Xxxxxxx X. Xxxxxx, Senior Vice President, Chief Financial Officer and General Counsel of Iomai
Corporation, a Delaware corporation (the “Company”), does hereby certify pursuant to
Section 6(h) of that certain Underwriting Agreement dated [trade date] (the “Underwriting
Agreement”) between the Company and UBS Securities LLC, XX Xxxxx & Co., LLC, First Albany
Capital Inc. and Susquehanna Financial Group, LLLP, on behalf of the several Underwriters named
therein, that as of [date]:
| 1. | He has reviewed the Registration Statement, each Preliminary Prospectus, the Prospectus and each Free Writing Prospectus. |
| 2. | To the best of his knowledge, the representations and warranties of the Company as set forth in the Underwriting Agreement are true and correct as of the date hereof and as if made on the date hereof. |
| 3. | The Company has performed all of its obligations under the Underwriting Agreement as are to be performed at or before the date hereof. |
| 4. | The conditions set forth in paragraph (g) of Section 6 of the Underwriting Agreement have been met. |
| 5. | The financial statements and other financial information included in the Registration Statement or the Prospectus fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods therein presented. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In Witness Whereof, the undersigned have hereunto set their hands on this [date].
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | President, Chief Executive Officer and Treasurer | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President, Chief Financial Officer and General Counsel | |||
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