Palatin Technologies, Inc. 25,384,616 Series A Units Consisting of One Share of Common Stock and One Series J Warrant to Purchase 0.50 of a Share of Common Stock Underwriting Agreement
Exhibit 1.1
Palatin
Technologies, Inc.
25,384,616
Series A Units Consisting of One Share of Common Stock and One
Series J Warrant to Purchase 0.50 of a Share of Common
Stock
December 1,
2016
Canaccord Genuity
Inc.
As
Representative of the several Underwriters
listed
in Schedule 1
hereto
00 Xxxx
Xxxxxx, 00xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Ladies
and Gentlemen:
Palatin
Technologies, Inc., a Delaware corporation (the
“Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representative (the “Representative”), an aggregate of
25,384,616 Series A units (the “Units”), each Unit
consisting of (a) one share (each, a “Share”) of common
stock, $0.01 par value per share, of the Company (the “Common
Stock”) and (b) one Series J warrant to purchase 0.50 of a
share of Common Stock at an exercise price equal to $0.80 per share
(each, a “Warrant”). The shares of Common Stock
underlying the Warrants are referred to herein as the
“Warrant Shares.” The Shares, Warrants and Warrant
Shares are described in the Prospectus that is referred to below.
The Units will not be issued or certificated. The Shares and the
Warrants comprising the Units are immediately separable and will be
issued separately, but will be purchased together in the
offering.
The
Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Units, as
follows:
1. Registration Statement. The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form S-3 (File No.
333-206047), including a prospectus, relating to the Units. Such
registration statement, as amended, at the time it became
effective, including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness
(“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means each prospectus included
in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act and the prospectus included in
the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus”
means the prospectus in the form first used (or made available upon
request of purchasers pursuant to Rule 173 under the Securities
Act) in connection with confirmation of sales of the Units. If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or
prior to the Applicable Time (as defined below), the Company had
prepared the following information (collectively, the
“Pricing Disclosure Package”): (a) a Preliminary
Prospectus dated November 30, 2016, (b) each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex A hereto and (c) the
pricing information listed on Annex B hereto.
“Applicable
Time” means 8:30 a.m. New York City time, on December 1,
2016.
2. Purchase of the Units by the
Underwriters.
(a) The Company
understands that the Underwriters intend to make a public offering
of the Units as soon after the effectiveness of this Agreement as
in the judgment of the Representative is advisable, and initially
to offer the Units on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and
sell Units to or through any affiliate of an
Underwriter.
(b) Payment for the
Units shall be made by wire transfer in immediately available funds
to the accounts specified by the Company to the Representative, at
the offices of Xxxxxxx Procter LLP at 10:00 a.m., New York City
time, on December 6, 2016, or at such other time or place on the
same or such other date, not later than the fifth business day
thereafter, as the Representative and the Company may agree upon in
writing. The time and date of such payment for the Units is
referred to herein as the “Closing Date.”
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Payment
for the Units to be purchased on the Closing Date shall be made
against delivery to the Representative for the respective accounts
of the several Underwriters of the Units to be purchased on such
date with any transfer taxes payable in connection with the sale of
such Units duly paid by the Company. The Shares shall be delivered
to the Underwriters through the facilities of The Depository Trust
Company (“DTC”) for the account of the Underwriters.
The Warrants shall be delivered by the Company in physical
certificated form to the purchasers, in each case in such names and
in such denominations as the Representative may direct by notice in
writing to the Company given not later than 1:00 p.m., New York
City time, on business day prior to the Closing Date.
(c) The Company
acknowledges and agrees that the Underwriters are acting solely in
the capacity of an arm’s length contractual counterparty to
the Company with respect to the offering of Units contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representative nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and Warranties of the
Company. The Company represents and warrants to each
Underwriter that:
(a) Preliminary Prospectus. No order
preventing or suspending the use of any Preliminary Prospectus has
been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing
thereof, complied in all material respects with the Securities Act,
and no Preliminary Prospectus, at the time of filing thereof,
contained any untrue statement of a material fact or omitted 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 that the Company makes
no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
any Preliminary Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(b) Pricing Disclosure Package. The Pricing
Disclosure Package as of the Applicable Time did not, and as of the
Closing Date, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes
no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
such Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
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(c) Issuer Free Writing Prospectus. Other
than the Registration Statement, the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not
prepared, used, authorized, approved or referred to and will not
prepare, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer
to buy the Units (each such communication by the Company or its
agents and representatives (other than a communication referred to
in clause (i) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act or (ii) the documents listed on
Annex A
hereto, each electronic road show and any other written
communications approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and as of the Closing Date, will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that the Company makes
no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly
for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(d) Registration Statement and
Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness
of the Registration Statement has been issued by the Commission,
and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering of
the Units has been initiated or, to the knowledge of the Company,
threatened by the Commission. As of the applicable effective date
of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective
amendment complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof. The Company meets the requirements for the use of Form S-3,
including General Instruction I.B.1 and the proposed offering of
the Units will be made pursuant to General Instruction I.B.1 of
Form S-3.
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(e) Incorporated Documents. The documents
incorporated by reference in the Registration Statement, the
Prospectus and the Pricing Disclosure Package, when they were filed
with the Commission conformed in all material respects to the
requirements of the Exchange Act, and none of such documents
contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement, the Prospectus or the
Pricing Disclosure Package, when such documents are filed with the
Commission will conform in all material respects to the
requirements of the Exchange Act and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(f) Financial Statements. The financial
statements (including the related notes thereto) of the Company
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus comply
in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and present
fairly, in all material respects, the financial position of the
Company as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods
covered thereby (except as otherwise stated therein and subject in
the case of unaudited financial statements to the absence of
footnotes and normal year-end adjustments), and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly, in all material respects, the information
required to be stated therein; and the other financial information
regarding the Company included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus has been derived from the accounting records of the
Company and presents fairly, in all material respects, the
information shown thereby.
(g) No Material Adverse Change. Since the
date of the most recent financial statements of the Company
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (i)
there has not been any change in the capital stock (other than the
issuance of shares of Common Stock upon exercise of stock options
and warrants described as outstanding in, and the grant of options,
restricted stock units and awards under existing equity incentive
plans described in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus), short-term debt or
long-term debt of the Company, or any dividend or distribution of
any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock, or any material adverse
change, or any development that would reasonably be expected to
result in a material adverse change, in or affecting the business,
properties, management, financial position, shareholders’
equity, results of operations or prospects of the Company; (ii) the
Company has not entered into any transaction or agreement (whether
or not in the ordinary course of business) that is material to the
Company or incurred any liability or obligation, direct or
contingent, that is material to the Company; and (iii) the Company
has not sustained any loss or interference with its business that
is material to the Company and that is either from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory
authority, except in each case as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
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(h) Organization and Good Standing. The
Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority necessary to hold its properties
and conduct its business where it is engaged, except where the
failure to be so qualified or in good standing or have such power
or authority would not have a material adverse effect on the
business, properties, management, financial position,
shareholders’ equity, results of operations or prospects of
the Company or on the performance by the Company of its obligations
under this Agreement (a “Material Adverse Effect”). The
Company does not own, directly or indirectly, any shares of stock
or any other equity interests or long-term debt securities of any
corporation, firm, partnership, joint venture, association or other
entity other than RhoMed Incorporated.
(i) Capitalization. The Company has an
authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. All
the outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the
Pricing Disclosure Package and the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interest in the Company, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company, any such convertible
or exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(j) Stock Options. With respect to the
stock options (the “Stock Options”) granted pursuant to
the stock-based compensation plans of the Company (the
“Company Stock Plans”), (i) each Stock Option intended
to qualify as an “incentive stock option” under Section
422 of the Code so qualifies, (ii) each grant of a Stock Option was
duly authorized no later than the date on which the grant of such
Stock Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required
shareholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was
duly executed and delivered by each party thereto, (iii) each such
grant was made in accordance with the terms of the Company Stock
Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the NYSE
MKT and any other exchange on which Company securities are traded,
and (iv) each such grant was properly accounted for in accordance
with GAAP in the financial statements (including the related notes)
of the Company and, to the extent granted on or prior July 1,
2016, disclosed in
the Company’s filings with the Commission in accordance with
the Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release
or other public announcement of material information regarding the
Company or its results of operations or prospects.
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(k) Due Authorization. The Company has full
right, power and authority to execute and deliver this Agreement;
and all action required to be taken for the due and proper
authorization, execution and delivery by it of this Agreement and
the consummation by it of the transactions contemplated hereby has
been duly and validly taken.
(l) Underwriting Agreement. This Agreement
has been duly authorized, executed and delivered by the
Company.
(m) The Shares. The Shares to be issued and
sold by the Company hereunder have been duly authorized by the
Company and, when issued and delivered and paid for as provided
herein, will be duly and validly issued, will be fully paid and
nonassessable and will conform to the descriptions thereof in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights.
(n) The Warrants. The Warrants to be issued
and sold by the Company hereunder, when executed and delivered
pursuant to the terms of this Agreement, will be duly authorized,
executed and delivered by the Company and will conform to the
descriptions thereof in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(o) The Warrant Shares. The Warrant Shares
have been duly authorized and reserved for issuance pursuant to the
terms of the Warrants, and when issued by the Company upon valid
exercise of the Warrants and payment of the exercise price, will be
duly and validly issued, will be fully paid and nonassessable and
will conform to the descriptions thereof in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; and
the issuance of the Warrant Shares is not subject to any preemptive
or similar rights.
(p) No Violation or Default. The Company is
not (i) in violation of its charter or by-laws; (ii) in
default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or
assets of the Company is subject; or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii)
and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse
Effect.
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(q) No Conflicts. The execution, delivery
and performance by the Company of this Agreement, the issuance and
sale of the Units by the Company and the consummation by the
Company of the transactions contemplated by this Agreement will not
(i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject, (ii) result in any violation of the provisions of the
charter or by-laws of the Company or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.
(r) No Consents Required. No consent,
approval, authorization, order, license, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, the issuance and sale
of the Units and the consummation of the transactions contemplated
by this Agreement, except for (i) where the failure to obtain any
such consent, approval, authorization, order, registration or
qualification would not, individually or in the aggregate, affect
the Company's ability to consummate the transactions contemplated
by this Agreement, and (ii) the registration of the Units under the
Securities Act and such consents, approvals, authorizations, orders
and registrations or qualifications as may be required by the
Financial Industry Regulatory Authority, Inc.
(“FINRA”), the NYSE MKT, or under applicable state
securities laws in connection with the purchase and distribution of
the Units by the Underwriters.
(s) Legal Proceedings. Except as described
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company is or may reasonably be expected to become a party or to
which any property of the Company is or may reasonably be expected
to become the subject that, individually or in the aggregate, if
determined adversely to the Company, could reasonably be expected
to have a Material Adverse Effect; to the knowledge of the Company,
no such investigations, actions, suits or proceedings are
threatened or, contemplated by any governmental or regulatory
authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be
described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus and (ii) there are no statutes, regulations or contracts
or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration
Statement (or the documents incorporated by reference therein) or
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
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(t) Independent Accountants. KPMG LLP,
which has certified certain financial statements of the Company, is
an independent registered public accounting firm with respect to
the Company within the applicable rules and regulations adopted by
the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
(u) Title to Real and Personal Property.
Except as described in the Registration Statement, the Pricing
Disclosure Package or the Prospectus, the Company has good and
marketable title in fee simple (in the case of real property) to,
or has valid and marketable rights to lease or otherwise use, all
items of real and personal property and assets that are material to
the business of the Company, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company or (ii)
could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
(v) Title to Intellectual Property. The
Company owns or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of
its business as currently conducted or as described in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus to be conducted. The conduct of its business will not
conflict in any material respect with any such rights of others.
The Company has not received any notice of any claim of
infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and
know-how.
(w) No Undisclosed Relationships. No
relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors or officers of the
Company, or, to the Company’s knowledge, the shareholders,
customers or suppliers of the Company, on the other, that is
required by the Securities Act to be described in the Registration
Statement and the Prospectus and that is not so described in such
documents and in the Pricing Disclosure Package.
(x) Investment Company Act. The Company is
not and, after giving effect to the offering and sale of the Units
and the application of the proceeds thereof received by the Company
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, will not be required to register as an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(y) Taxes. The Company has paid all
federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof, except where
such failure to pay or file would not reasonably be expected to
have a Material Adverse Effect; and except as otherwise disclosed
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its properties or assets and have a Material Adverse Effect
either individually or in the aggregate.
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(z) Licenses and Permits. The Company
possesses all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of its properties or the conduct of its business
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a
Material Adverse Effect; and except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company has not received notice of any revocation
or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course.
(aa) No
Labor Disputes. No labor disturbance by or dispute with
employees of the Company exists or, to the knowledge of the
Company, is contemplated or threatened, and the Company is not
aware of any existing or imminent labor disturbance by, or dispute
with, the employees of any of its principal suppliers, contractors
or customers, except such as would not have a Material Adverse
Effect.
(bb) Compliance
with and Liability under Environmental Laws. (i) The Company
(a) is in compliance with any and all applicable federal, state,
local and foreign laws, rules, regulations, decisions, judgments,
decrees and orders relating to pollution or the protection of the
environment, natural resources or human health or safety (other
than the Federal Food, Drug and Cosmetic Act, which is addressed at
subsection (rr)), including those relating to the generation,
storage, treatment, use, handling, transportation, Release or
threat of Release of Hazardous Materials (collectively,
“Environmental Laws”), (b) has received and is in
compliance with all permits, licenses, certificates or other
authorizations or approvals required of it under applicable
Environmental Laws to conduct its business, (c) has not received
notice of any actual or potential liability under or relating to,
or actual or potential violation of, any Environmental Laws,
including for the investigation or remediation of any Release or
threat of Release of Hazardous Materials, and has no knowledge of
any event or condition that would reasonably be expected to result
in any such notice, (d) is not conducting or paying for, in whole
or in part, any investigation, remediation or other corrective
action pursuant to any Environmental Law at any location, and (e)
is not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and (ii) there
are no costs or liabilities associated with Environmental Laws of
or relating to the Company, except in the case of each of (i) and
(ii) above, for any such matter, as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; and (iii) except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (a)
there are no proceedings that are pending or, to the knowledge of
the Company, contemplated, against the Company under any
Environmental Laws in which a governmental entity is also a party,
other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed,
(b) the Company is not aware of any facts or issues regarding
compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws, including the Release or
threat of Release of Hazardous Materials, that could reasonably be
expected to have a material effect on the capital expenditures,
earnings or competitive position of the Company, and (c) the
Company does not anticipate material capital expenditures relating
to any Environmental Laws.
10
(cc) Hazardous
Materials. There has been no storage, generation,
transportation, use, handling, treatment, Release or threat of
Release of Hazardous Materials by, relating to or caused by the
Company (or, to the knowledge of the Company, any other entity
(including any predecessor) for whose acts or omissions the Company
is or could reasonably be expected to be liable) at, on, under or
from any property or facility now or previously owned, operated or
leased by the Company, or at, on, under or from any other property
or facility, in violation of any Environmental Laws or in a manner
or amount or to a location that could reasonably be expected to
result in any liability for the Company under any Environmental
Law, except for any violation or liability which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. “Hazardous Materials” means
any material, chemical, substance, waste, pollutant, contaminant,
compound, mixture, or constituent thereof, in any form or amount,
including petroleum (including crude oil or any fraction thereof)
and petroleum products, natural gas liquids, asbestos and asbestos
containing materials, naturally occurring radioactive materials,
brine, and drilling mud, regulated or which can give rise to
liability under any Environmental Law. “Release” means
any spilling, leaking, seepage, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, or migrating in, into or through
the environment, or in, into, from or through any building or
structure.
(dd) Compliance
with ERISA. (i) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group”
(defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended (the “Code”))
would have any liability (each, a “Plan”) has been
maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but
not limited to, ERISA and the Code, except for noncompliance that
could not reasonably be expected to result in material liability to
the Company; (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption that could reasonably be
expected to result in a material liability to the Company; (iii)
for each Plan that is subject to the funding rules of Section 412
of the Code or Section 302 of ERISA, the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA, as applicable,
has been satisfied (without taking into account any waiver thereof
or extension of any amortization period) and is reasonably expected
to be satisfied in the future (without taking into account any
waiver thereof or extension of any amortization period); (iv) the
fair market value of the assets of each Plan exceeds the present
value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan); (v) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur that either has
resulted, or could reasonably be expected to result, in material
liability to the Company; (vi) neither the Company nor any member
of the Controlled Group has incurred, nor reasonably expects to
incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary
course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section
4001(a)(3) of ERISA); and (vii) there is no pending audit or, to
the knowledge of the Company, investigation by the Internal Revenue
Service, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation or any other governmental agency or any foreign
regulatory agency with respect to any Plan that could reasonably be
expected to result in material liability to the
Company.
11
(ee) Disclosure
Controls. The Company maintains an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that complies with the
requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in
reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms,
including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding
required disclosure. The Company has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required
by Rule 13a-15 of the Exchange Act.
(ff) Accounting
Controls. The Company maintains a system of “internal
control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that complies with the requirements
of the Exchange Act and has been designed by, or under the
supervision of, its principal executive and principal financial
officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences and (v)
interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement fairly
presents the information called for in all material respects and is
prepared in accordance with the Commission’s rules and
guidelines applicable thereto. Based on the Company’s most
recent evaluation of its internal controls over financial reporting
pursuant to Rule 13a-15(c) of the Exchange Act, except as disclosed
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there are no material weaknesses in the
Company’s internal controls. The Company’s auditors and
the Audit Committee of the Board of Directors of the Company have
been advised of: (i) any significant deficiencies and material
weaknesses in the design or operation of internal controls over
financial reporting which have adversely affected or are reasonably
likely to adversely affect the Company’s ability to record,
process, summarize and report financial information; and (ii) any
fraud, whether or not material, that involves management or other
employees who have a significant role in the Company’s
internal controls over financial reporting.
12
(gg) eXtensible
Business Reporting Language. The interactive data in
eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement fairly presents the
information called for and has been prepared in accordance with the
Commission’s rules and guidelines applicable thereto in all
material respects.
(hh) Insurance.
The Company has insurance covering its properties, operations,
personnel and businesses which insurance is in amounts and insures
against such losses and risks that the Company believes are prudent
and customary for a company of its size and in the business in
which it is engaged, and adequate to protect the Company and its
business; the Company has not (i) received notice from any insurer
or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to
continue such insurance or (ii) any reason to believe that it will
not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage at reasonable
cost from similar insurers as may be necessary to continue its
business.
(ii) No
Unlawful Payments. Neither the Company nor, to the knowledge
of the Company, any director, officer, employee, agent, affiliate
or other person acting on behalf of the Company has (i) used any
corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made
any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended, the Xxxxxxx Xxx 0000 of the
United Kingdom, or any other applicable anti-bribery or
anti-corruption laws; or (iv) taken an act in furtherance of any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment. The Company has instituted and maintains and will
continue to maintain policies and procedures designed to promote
and ensure compliance with all applicable anti-bribery and
anti-corruption laws.
(jj) Compliance
with Money Laundering Laws. The operations of the Company
are and have been conducted at all times in material compliance
with applicable financial recordkeeping and reporting requirements,
including those of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the applicable money laundering statutes
of all jurisdictions where the Company conducts business, the rules
and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Anti-Money Laundering
Laws is pending or, to the knowledge of the Company,
threatened.
(kk) No
Conflicts with Sanctions Laws. Neither the Company, nor, to
the knowledge of the Company, any of its directors, officers,
employees, agents, or affiliates, is currently the subject or the
target of any sanctions administered or enforced by the U.S.
Government, (including, without limitation, the Office of Foreign
Assets Control of the U.S. Department of the Treasury or the U.S.
Department of State), the United Nations Security Council, the
European Union, Her Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor is
the Company located, organized or resident in a country or
territory that is the subject or the target of Sanctions; and the
Company will not directly or indirectly use the proceeds of the
offering of the Units hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other person or entity (i) to fund or facilitate any
activities of or business with any person, or in any country or
territory, that, at the time of such funding or facilitation, is
the subject or the target of Sanctions, or (ii) in any other manner
that will result in a violation by any person (including any person
participating in the transaction, whether as underwriter, advisor,
investor or otherwise) of Sanctions.
13
(ll) No
Broker’s Fees. The Company is not a party to any
contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Units.
(mm) No
Registration Rights. No person has the right to require the
Company to register any securities for sale under the Securities
Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Units by the Company,
except for such rights which have been waived prior to the date of
this Agreement.
(nn) No
Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of
the price of any security of the Company.
(oo) Margin
Rules. The application of the proceeds received by the
Company from the issuance, sale and delivery of the Units as
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus will not violate Regulation T, U or
X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board of Governors.
(pp) Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement, the Pricing
Disclosure Package or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(qq) Statistical
and Market Data. Nothing has come to the attention of the
Company that has caused the Company to believe that the statistical
and market-related data included in the Registration Statement, the
Pricing Disclosure Package and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
(rr) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the
Company or, to the knowledge of the Company, any of the
Company’s directors or officers, in their capacities as such,
to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to
loans and Sections 302 and 906 related to
certifications.
14
(ss) Food
and Drug Administration. Except in each case as otherwise
disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the Company has not been advised, and
has no reason to believe, that it is not conducting business in
compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, and the Company:
(i) is and at all times has been in material compliance with all
federal, state and local statutes, rules or regulations applicable
to the ownership, testing, development, manufacture, packaging,
processing, use, distribution, marketing, labeling, promotion,
sale, offer for sale, storage, import, export or disposal of any
product under development, manufactured or distributed by the
Company (“Applicable Laws”); (ii) has not received any
correspondence or notice from the U.S. Food and Drug Administration
(the “FDA”) or any other federal, state, local or
foreign governmental or regulatory authority alleging or asserting
material noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”); (iii) possesses all material
Authorizations and such Authorizations are valid and in full force
and effect and the Company is not in material violation of any term
of any such Authorizations; (iv) has not received notice of any
claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from the FDA or any
other federal, state, local or foreign governmental or regulatory
authority or third party alleging that any product operation or
activity is in material violation of Section 361 of the Public
Health Services Act, any Applicable Laws or Authorizations and has
no knowledge that the FDA or any other federal, state, local or
foreign governmental or regulatory authority or third party is
considering any such claim, litigation, arbitration, action, suit,
investigation or proceeding; (v) has not received notice that the
FDA or any other federal, state, local or foreign governmental or
regulatory authority has taken, is taking or intends to take action
to limit, suspend, modify or revoke any material Authorizations and
has no knowledge that the FDA or any other federal, state, local or
foreign governmental or regulatory authority is considering such
action; (vi) has filed, obtained, maintained or submitted all
material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by
any Applicable Laws or Authorizations and that all such reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments were materially complete
and correct on the date filed (or were corrected or supplemented by
a subsequent submission); and (vii) has not, either voluntarily or
involuntarily, initiated, conducted, or issued or caused to be
initiated, conducted or issued, any recall, market withdrawal or
replacement, safety alert, “dear doctor” letter, or
other notice or action relating to the alleged lack of safety or
efficacy of any product or any alleged product defect or violation
and, to the Company’s knowledge, no third party has
initiated, conducted or intends to initiate any such notice or
action.
(tt) Preclinical
and Clinical Trials. The studies, tests and preclinical and
clinical trials conducted by, or on behalf of the Company were and,
if still pending, are, being conducted in all material respects in
accordance with clinical protocols, procedures and controls
pursuant to accepted professional scientific standards and all
Applicable Laws and Authorizations, including, without limitation,
the Federal Food, Drug and Cosmetic Act and the rules and
regulations promulgated thereunder (collectively,
“FFDCA”). The descriptions of the results of such
studies, tests and trials contained in the Registration Statement
and the Prospectus are accurate and complete in all material
respects and fairly present the data derived from such studies,
tests and trials. The Company is not aware of any studies, tests or
trials, the results of which the Company believes reasonably call
into question the study, test, or trial results described or
referred to in the Registration Statement and the Prospectus when
viewed in the context in which such results are described and the
clinical state of development. The Company has not received any
notices or correspondence from the FDA or any other federal, state,
local or foreign governmental or regulatory authority requiring the
termination, suspension or material modification of any studies,
tests or preclinical or clinical trials conducted by or on behalf
of the Company.
15
4. Further
Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and
Rule 430A, 430B or 430C under the Securities Act, will file any
Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act; will file timely all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act during the Prospectus Delivery
Period; and will furnish copies of the Prospectus and each Issuer
Free Writing Prospectus (to the extent not previously delivered) to
the Underwriters in New York City prior to 10:00 a.m., New York
City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representative may reasonably
request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the
public offering of the Units as in the opinion of counsel for the
Underwriters a prospectus relating to the Units is required by law
to be delivered (or required to be delivered but for Rule 172 under
the Securities Act) in connection with sales of the Units by any
Underwriter or dealer.
(b) Delivery
of Copies. The Company will deliver, without charge, to each
Underwriter (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) and
(B) during the Prospectus Delivery Period (as defined below), as
many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein
and each Issuer Free Writing Prospectus) as the Representative may
reasonably request, to the extent not available on XXXXX. As used
herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of
the Units as in the opinion of counsel for the Underwriters a
prospectus relating to the Units is required by law to be delivered
(or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Units by any Underwriter or
dealer.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. Before
preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the Prospectus,
whether before or after the time that the Registration Statement
becomes effective, from the date hereof through the Prospectus
Delivery Period, the Company will furnish to the Representative and
counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not
prepare, use or file any such Issuer Free Writing Prospectus or
file any such proposed amendment or supplement to which the
Representative reasonably objects.
16
(d) Notice
to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i)
when any amendment to the Registration Statement has been filed or
becomes effective; (ii) when any supplement to the Prospectus or
any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed or distributed; (iii) of any request by
the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement
or any other request by the Commission for any additional
information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, any
of the Pricing Disclosure Package or the Prospectus or the
initiation or threatening of any proceeding for that purpose or
pursuant to Section 8A of the Securities Act; (v) of the occurrence
of any event or development within the Prospectus Delivery Period
as a result of which the Prospectus, the Pricing Disclosure Package
or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing when
the Prospectus, the Pricing Disclosure Package or any such Issuer
Free Writing Prospectus is delivered to a purchaser, not
misleading; and (vi) of the receipt by the Company of any notice
with respect to any suspension of the qualification of the Units
for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company
will use its commercially reasonable efforts to prevent the
issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any
Preliminary Prospectus, any of the Pricing Disclosure Package or
the Prospectus or suspending any such qualification of the Units
and, if any such order is issued, will obtain as soon as possible
the withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i)
any event or development shall occur or condition shall exist as a
result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with
law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such
dealers as the Representative may designate such amendments or
supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances existing when the Prospectus
is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law and (2) if at any time prior to the
Closing Date (i) any event or development shall occur or condition
shall exist as a result of which the Pricing Disclosure Package as
then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances existing when the Pricing Disclosure Package is
delivered to a purchaser, not misleading or (ii) it is necessary to
amend or supplement the Pricing Disclosure Package to comply with
law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file
with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representative may
designate, such amendments or supplements to the Pricing Disclosure
Package as may be necessary so that the statements in the Pricing
Disclosure Package as so amended or supplemented will not, in the
light of the circumstances existing when the Pricing Disclosure
Package is delivered to a purchaser, be misleading or so that the
Pricing Disclosure Package will comply with law.
17
(f) Blue
Sky Compliance. The Company will qualify the Units for offer
and sale under the securities or Blue Sky laws of such United
States jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required
for distribution of the Units; provided that the Company shall
not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, (ii) file any
general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if it is
not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its
security holders and the Representative as soon as practicable an
earning statement that satisfies the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the
“effective date” (as defined in Rule 158) of the
Registration Statement, provided that the Company will be deemed to
have complied with such requirement by filing on XXXXX a report
that satisfies such requirement.
(h) Clear
Market. For a period of 30 days after the date of the
Prospectus, the Company will not (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or
indirectly, or file with the Commission a new registration
statement under the Securities Act relating to, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or publicly disclose the intention
to make any offer, sale, pledge, disposition or filing, or
(ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of
the Common Stock or any such other securities, whether any such
transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or
otherwise, without the prior written consent of the Representative,
other than (A) the Units to be sold hereunder, (B) awards
granted under the Company’s Stock Plans in existence on the
date hereof or any shares of Common Stock of the Company issued
upon the exercise of options or restricted stock units granted, or
grants made, under Company Stock Plans, or (C) shares of Common
Stock of the Company issued upon the exercise of currently
outstanding warrants and the Warrants to be sold
hereunder.
(i) Use
of Proceeds. The Company will apply the net proceeds it
receives from the sale of the Units as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Use of
Proceeds.”
(j) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of
the price of the Common Stock.
(k) Exchange
Listing. The Company will use its best efforts to list,
subject to notice of issuance, the Shares and Warrant Shares on the
NYSE MKT.
18
(l) Warrant
Shares. The Company shall reserve and keep available at all
times a sufficient number of shares of Common Stock for purpose of
enabling the Company to issue the Warrant Shares.
(m) Reports.
During the period beginning on the Closing Date and ending three
years thereafter, the Company will furnish to the Representative,
as soon as they are available, copies of all reports or other
communications (financial or other) furnished to holders of the
Units, and copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange
or automatic quotation system; provided the Company will be deemed to
have furnished such reports and financial statements to the
Representative to the extent they are filed on the
Commission’s Electronic Data Gathering, Analysis, and
Retrieval system.
(n) Record
Retention. The Company will, pursuant to reasonable
procedures developed in good faith, retain copies of each Issuer
Free Writing Prospectus that is not filed with the Commission in
accordance with Rule 433 under the Securities Act.
5. Certain
Agreements of the Underwriters. Each Underwriter hereby
represents and agrees that:
(a) It
has not used, authorized use of, referred to or participated in the
planning for use of, and will not use, authorize use of, refer to
or participate in the planning for use of, any “free writing
prospectus”, as defined in Rule 405 under the Securities Act
(which term includes use of any written information furnished to
the Commission by the Company and not incorporated by reference
into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no
“issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through
incorporation by reference) in the Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Annex A or prepared pursuant to
Section 3(c) above (including any electronic road show), or (iii)
any free writing prospectus prepared by such underwriter and
approved by the Company in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”).
(b) It
has not and will not, without the prior written consent of the
Company, use any free writing prospectus that contains the final
terms of the Units unless such terms have previously been included
in a free writing prospectus filed with the
Commission.
(c) It
is not subject to any pending proceeding under Section 8A of the
Securities Act with respect to the offering (and will promptly
notify the Company if any such proceeding against it is initiated
during the Prospectus Delivery Period).
6. Conditions
of Underwriters’ Obligations. The obligation of each
Underwriter to purchase the Units on the Closing Date as provided
herein is subject to the performance by the Company of its
respective covenants and other obligations hereunder and to the
following additional conditions:
19
(a) Registration
Compliance; No Stop Order. No order suspending the
effectiveness of the Registration Statement shall be in effect, and
no proceeding for such purpose or pursuant to Section 8A under the
Securities Act shall be pending before or, to the knowledge of the
Company, threatened by the Commission; the Prospectus and each
Issuer Free Writing Prospectus, if any, shall have been timely
filed with the Commission under the Securities Act (in the case of
an Issuer Free Writing Prospectus, to the extent required by Rule
433 under the Securities Act) and in accordance with Section 4(a)
hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Representations
and Warranties. The respective representations and
warranties of the Company contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; and
the statements of the Company and its officers made in any
certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.
(c) [Intentionally
Omitted].
(d) No
Material Adverse Change. No event or condition of a type
described in Section 3(g) hereof shall have occurred or shall
exist, which event or condition is not described in the Pricing
Disclosure Package (excluding any amendment or supplement thereto)
and the Prospectus (excluding any amendment or supplement thereto)
and the effect of which in the judgment of the Representative makes
it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Units on the Closing Date, on the terms and in
the manner contemplated by this Agreement, the Pricing Disclosure
Package and the Prospectus.
(e) Officer’s
Certificate. The Representative shall have received on and
as of the Closing Date (x) a certificate of the chief financial
officer and chief executive officer of the Company
(i) confirming that such officers have carefully reviewed the
Registration Statement, the Pricing Disclosure Package and the
Prospectus and, to the knowledge of such officers, the
representations of the Company set forth in Sections 3(b) and 3(d)
hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are
true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date, and (iii)
to the effect set forth in paragraphs (a) and (d)
above.
(f) Chief
Financial Officer Certificate. On the date of this Agreement
and on the Closing Date, the Chief Financial Officer of the Company
shall have furnished to the Representative, a certificate, dated
the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, with respect to the financial statements and
certain financial information contained or incorporated by
reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(g) Opinion
of Counsel for the Company. Xxxxxxxx Xxxx LLP, counsel for
the Company, shall have furnished to the Representative, at the
request of the Company, their written opinion and negative
assurance statement, dated the Closing Date, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative.
20
(h) Letter
of Accountants for the Company. On or before the Closing
Date, KPMG LLP shall have furnished to the Underwriters a letter,
dated the date of its delivery, addressed to the Representative on
behalf of itself and the several Underwriters and in form and
substance satisfactory to the Representative, confirming that they
are independent accountants with respect to the Company and its
subsidiaries as required by the Securities Act and the Exchange Act
and with respect to certain financial and other statistical and
numerical information contained or incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure
Package.
(i) [Intentionally
Omitted].
(j) Opinion
of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date, an opinion and
negative assurance statement of Xxxxxxx Procter LLP, counsel for
the Underwriters, and such counsel shall have received such
documents and information as they may reasonably request to enable
them to pass upon such matters.
(k) No
Legal Impediment to Issuance and/or Sale. No action shall
have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any federal, state or
foreign governmental or regulatory authority that would, as of the
Closing Date, prevent the issuance or sale of the Units by the
Company; and no injunction or order of any federal, state or
foreign court shall have been issued that would, as of the Closing
Date, prevent the issuance or sale of the Units by the
Company.
(l) [Intentionally
Omitted].
(m) Exchange
Listing. The Shares and Warrant Shares, shall have been
approved for listing on the NYSE MKT, subject to official notice of
issuance.
(n) Lock-up
Agreements. The “lock-up” agreements, each
substantially in the form of Exhibit A hereto, between you
and certain officers and directors of the Company identified on
Schedule 2 hereto,
relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be full force and effect on the
Closing Date.
(o) Secretary’s
Certificate. The Representative shall have
received on and as of the Closing Date, a certificate of the Secretary of the
Company.
(p) FINRA.
FINRA shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other
arrangements of the transactions, contemplated hereby.
(q) Additional
Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representative such further
certificates and documents as the Representative may reasonably
request.
All
opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance
reasonably satisfactory to the Representative and counsel for the
Underwriters.
21
7. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters by the Company. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out
of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
in order to make the statements therein, not misleading, (ii) or
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus, any “issuer
information” filed or required to be filed pursuant to Rule
433(d) under the Securities Act, any road show as defined in Rule
433(h) under the Securities Act (a “road show”) or any
Pricing Disclosure Package (including any Pricing Disclosure
Package that has subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each
case except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b)
below.
(b) Indemnification
of the Company by the Underwriters. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any
information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representative expressly
for use in the Registration Statement, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing
Prospectus, any road show or any Pricing Disclosure Package
(including any Pricing Disclosure Package that has subsequently
been amended), it being understood and agreed upon that the only
such information furnished by any Underwriter consists of the
following information in the “Underwriting” section of
the Prospectus: the third, tenth and eleventh
paragraphs.
22
(c) Notice
and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which
indemnification may be sought pursuant to the preceding paragraphs
of this Section 7, such person (the “Indemnified
Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any
liability that it may have under the preceding paragraphs of this
Section 7 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the
failure to notify the Indemnifying Person shall not relieve it from
any liability that it may have to an Indemnified Person otherwise
than under the preceding paragraphs of this Section 7. If any such
claim or action shall be brought against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall be entitled to participate therein and,
to the extent it wishes, either by itself or jointly with any other
similarly notified Indemnifying Person, to assume the defense
thereof with counsel reasonably satisfactory to the Indemnified
Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the
Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding, as incurred. After notice
from the Indemnifying Person to the Indemnified Person of its
election to assume the defense of such proceeding, the Indemnifying
Person shall not be liable to the Indemnified Person under this
Section 7 for any legal or other expenses subsequently incurred by
the Indemnified Person in connection with the defense thereof other
than for reasonable costs of investigation; provided, however, that
in any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified
Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named
parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between
them. It is understood and agreed that the Indemnifying Person
shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall
be paid or reimbursed as they are incurred. Any such separate firm
for any Underwriter, its affiliates, directors and officers and any
control persons of such Underwriter shall be designated in writing
by the Representative, any such separate firm for the Company, its
directors, its officers who signed the Registration Statement and
any control persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment
for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for
fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement.
No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person,
in form and substance reasonably satisfactory to such Indemnified
Person, from all liability arising out of claims that are the
subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
23
(d) Contribution.
If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute
to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters on
the other, from the offering of the Units or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of
the Company, on the one hand, and the Underwriters on the other, in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters on the other,
shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from
the sale of the Units and the total underwriting discounts and
commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Units. The
relative fault of the Company, on the one hand, and the
Underwriters on the other, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by
the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(e) Limitation
on Liability. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to
paragraph (d) above were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of paragraphs (d) and (e), in no
event shall an Underwriter be required to contribute any amount in
excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the
offering of the Units exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to paragraphs (d) and (e) are several in
proportion to their respective purchase obligations hereunder and
not joint.
24
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in
equity.
8. Effectiveness
of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination.
This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution
and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited
on or by any of the New York Stock Exchange, the NYSE MKT, or The
Nasdaq Stock Market; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange
or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal
or New York State authorities; or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, either within or
outside the United States, that, in the judgment of the
Representative, is material and adverse and makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of
the Units on the Closing Date, on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and
the Prospectus.
10. Defaulting
Underwriter.
(a) If,
on the Closing Date, any Underwriter defaults on its obligation to
purchase the Units that it has agreed to purchase hereunder on such
date, the non-defaulting Underwriters may in their discretion
arrange for the purchase of such Shares by other persons
satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the
purchase of such Units, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons
satisfactory to the non-defaulting Underwriters to purchase such
Units on such terms. If other persons become obligated or agree to
purchase the Units of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing
Date for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement
and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to
the Registration Statement and the Prospectus that effects any such
changes. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this
Agreement unless the context otherwise requires, any person not
listed in Schedule
1 hereto that, pursuant to this Section 10, purchases Units
that a defaulting Underwriter agreed but failed to
purchase.
25
(b) If,
after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters, the Company as provided in paragraph
(a) above, the aggregate number of Units that remain unpurchased on
the Closing Date does not exceed one-eleventh of the aggregate
number of Units to be purchased on such date, then the Company
shall have the right to require each non-defaulting Underwriter to
purchase the number of Units that such Underwriter agreed to
purchase hereunder on such date plus such Underwriter’s pro
rata share (based on the number of Units that such Underwriter
agreed to purchase on such date) of the Units of such defaulting
Underwriter or Underwriters for which such arrangements have not
been made.
(c) If,
after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters, the Company as provided in paragraph
(a) above, the aggregate number of Units that remain unpurchased on
the Closing Date, exceeds one-eleventh of the aggregate amount of
Units to be purchased on such date, or if the Company shall not
exercise the right described in paragraph (b) above, then this
Agreement shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 10 shall be without liability on the part
of the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Section 11 hereof
and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default.
26
11. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay
or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Units and any taxes
payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the
Prospectus (including all exhibits, amendments and supplements
thereto) and the distribution thereof; (iii) the fees and expenses
of the Company’s counsel and independent accountants; (v) the
fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of
the Units under the state or foreign securities or blue sky laws of
such jurisdictions as the Representative may designate and the
preparation, printing and distribution of a Blue Sky Memorandum
(including the related fees and expenses incurred by counsel for
the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer
agent and any registrar; (viii) all expenses and application fees
incurred in connection with any filing with, and clearance of the
offering by, FINRA; (ix) all expenses incurred by the Company in
connection with any “road show” presentation to
potential investors; (x) all expenses and application fees related
to the listing of the Shares and Warrant Shares on the NYSE MKT;
and (xi) the out-of-pocket costs and expenses (including the fees
and expenses of counsel) incurred by the Underwriters in connection
with this Agreement and the offering contemplated hereby in an
amount not to exceed $50,000 in the aggregate.
(b) If
(i) this Agreement is terminated pursuant to Section 9, (ii) the
Company for any reason fails to tender the Shares or Warrants for
delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Units for any reason permitted under this Agreement,
the Company agrees to reimburse the Underwriters for all documented
out-of-pocket costs and expenses (including the fees and expenses
of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement and the offering contemplated
hereby; provided, however, that in the case of termination under
Section 10(c), the Company shall not reimburse the defaulting
underwriter for any out-of-pocket costs and expenses incurred by
such defaulting underwriter.
12. Persons
Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any
controlling persons referred to in Section 7 hereof. Nothing in
this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No
purchaser of Units from any Underwriter shall be deemed to be a
successor merely by reason of such purchase.
13. Survival.
The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement or made by or on behalf of
the Company or the Underwriters pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of
and payment for the Units and shall remain in full force and
effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the
Underwriters.
27
14. Certain
Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term
“affiliate” has the meaning set forth in Rule 405 under
the Securities Act; and (b) the term “business day”
means any day other than a day on which banks are permitted or
required to be closed in New York City.
15. Miscellaneous.
(a) Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to
the Representative c/o Canaccord Genuity Inc., 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General
Counsel. Notices to the Company shall be given to it at the address
of the Company set forth in the Registration Statement, Attention:
Secretary.
(b) Governing
Law. This Agreement and any claim, controversy or dispute
arising under or related to this Agreement shall be governed by and
construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such
state.
(c) Counterparts.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall
constitute one and the same instrument.
(d) Amendments
or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent to or approval of any departure
therefrom, shall in any event be effective unless the same shall be
in writing and signed by the parties hereto.
(e) Headings.
The headings herein are included for convenience of reference only
and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the
foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided
below.
|
|
Very
truly yours,
PALATIN
TECHNOLOGIES, INC.
/s/
Xxxx Xxxxx
By:____________________________
Xxxx
Xxxxx
President and Chief
Executive Officer
|
ACCEPTED:
CANCCORD
GENUITY INC.
For itself and on behalf of the several Underwriters
listed in Schedule
1 hereto.
/s/
Xxxxxxxx Xxxxx
By:
_________________________
Authorized
Signatory
Xxxxxxxx
Xxxxx
Xx.
Managing Director
29
Schedule 1
UNDERWRITERS
|
Underwriter
|
Number of
Units
|
|
Canaccord Genuity
Inc.
|
13,961,539
|
|
Xxxx Capital
Partners, LLC
|
8,884,616
|
|
Chardan Capital
Markets, LLC
|
2,538,461
|
|
Total
|
25,384,616
|
|
|
|
Schedule 2
PERSONS EXECUTING LOCK-UP AGREEMENTS
Xxxx
Xxxxx
Xxxxxxx
X. Xxxxx
Xxxx
X.X. Xxxxxxxxxxx
Xxxxxx
X. xxXxxx, Xx.
J.
Xxxxxxx Xxxx
Xxxx X.
Xxxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
X. Xxxxxx
Annex A
ISSUER FREE WRITING PROSPECTUSES
None.
Annex
A-1
Annex B
PRICING INFORMATION
Public
Offering Price: $0.65 per Unit
Number
of Units Offered: 25,384,616 Series A Units (consisting of (i)
25,384,616 shares of Common Stock and (ii) Series J Warrants to
purchase 12,692,310 shares of Common Stock)
Series
J Warrant Exercise Price $0.80 per share
Underwriting
Discount: 5.5%
Closing
Date: December 6, 2016
Annex
B-1
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
_______________,
2016
Canaccord
Genuity Inc.
As
Representative of the Several Underwriters
00 Xxxx
Xxxxxx, 00xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
RE:
Palatin Technologies, Inc. --- Public Offering
Ladies
and Gentlemen:
The
undersigned understands that you, as Representative of the several
Underwriters, propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with Palatin Technologies,
Inc., a Delaware corporation (the “Company”) providing
for the public offering (the “Public Offering”) by the
several Underwriters named in Schedule 1 to the Underwriting
Agreement (the “Underwriters”), of common stock, $0.01
par value per share, of the Company (the “Common
Stock”) and Warrants to purchase Common Stock (the
“Warrants”). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the
Underwriting Agreement.
In
consideration of the Underwriters’ agreement to purchase and
make the Public Offering of the Common Stock and Warrants, and for
other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior
written consent of the Representative on behalf of the
Underwriters, the undersigned will not, during the period ending 30
days after the date of the prospectus relating to the Public
Offering (the “Lock-Up Period”), (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock
(including without limitation, Common Stock or such other
securities which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and securities which may be
issued upon exercise of a stock option or warrant), or publicly
disclose the intention to make any offer, sale, pledge or
disposition, (2) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Common Stock or such other securities, whether any
such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in
cash or otherwise or (3) make any demand for or exercise any right
with respect to the registration of any shares of Common Stock or
any security convertible into or exercisable or exchangeable for
Common Stock without the prior written consent of the
Representative, in each case other than (A) transfers of shares of
Common Stock as a bona fide gift or gifts, (B) transfers to any
trust for the direct or indirect benefit of the undersigned or a
member of the immediate family (as defined below) of the
undersigned in a transaction not involving the disposition for
value, or (C) transfers by will, other testamentary document or
intestate succession to the legal representative, heir,
beneficiary, or a member of the immediate family of the
undersigned; provided that in the case of
any transfer or distribution pursuant to clause (A), (B), or (C),
each donee or distributee shall execute and deliver to the
Representative a lock-up letter in the form of this paragraph; and
provided,
further, that in
the case of any transfer or distribution pursuant to clause (A),
(B), or (C), no filing by any party (donor, donee, transferor or
transferee) under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or other public announcement
shall be required or shall be made voluntarily in connection with
such transfer or distribution (other than a filing on a Form 5 made
after the expiration of the Lock-Up Period).
Furthermore,
notwithstanding the restrictions imposed by this Letter Agreement,
the undersigned may, without the prior written consent of the
Representative, (i) exercise an option to purchase shares of Common
Stock granted under any stock incentive plan or stock purchase plan
of the Company (provided that any shares issued upon such exercise
shall remain subject to the restrictions set forth in clause (1)
above), (ii) transfer shares of Common Stock acquired on the open
market following the closing of the Public Offering or (iii) sell
shares of Common Stock pursuant to the terms of a plan established
under Rule 10b5-1 that was in existence prior to the date of this
Letter Agreement (a “10b5-1 Plan”); provided that no filing by any
party (donor, donee, transferor or transferee) under the Exchange
Act or other public announcement shall be required or shall be made
voluntarily in connection with such transfer (other than a filing
on a Form 5 if such filing is required by the Exchange Act, or a
filing on Form 4 reporting a sale of Common Stock pursuant to a
10b5-1 Plan).
For
purposes of this Letter Agreement, "Immediate Family" shall mean
any relationship by blood, marriage, or adoption, not more remote
than first cousin.
In
furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities
described herein, are hereby authorized to decline to make any
transfer of securities if such transfer would constitute a
violation or breach of this Letter Agreement.
The
undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Letter Agreement. All
authority herein conferred or agreed to be conferred and any
obligations of the undersigned shall be binding upon the
successors, assigns, heirs or personal representatives of the
undersigned.
The
undersigned understands that, if the Underwriting Agreement has not
been executed on or before December 31, 2016, or if the
Underwriting Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Stock and Warrants to be
sold thereunder, the undersigned shall be released from all
obligations under this Letter Agreement. The undersigned
understands that the Underwriters are entering into the
Underwriting Agreement and proceeding with the Public Offering in
reliance upon this Letter Agreement.
This
Letter Agreement and any claim, controversy or dispute arising
under or related to this Letter Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
without regard to the conflict of laws principles
thereof.
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Very
truly yours,
Name:____________________________________
By:
______________________________________
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