Exhibit 1
NEOGENESIS PHARMACEUTICALS, INC.
6,200,000 Shares of Common Stock
Underwriting Agreement
January [ ], 2002
X.X. Xxxxxx Securities Inc.
Bear, Xxxxxxx & Co., Inc.
XX Xxxxx Securities Inc.
As Representatives of the several Underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NeoGenesis Pharmaceuticals, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters listed in
SCHEDULE I hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"), an aggregate of 6,200,000 shares (the
"UNDERWRITTEN SHARES") of Common Stock, par value $0.001 per share, of the
Company (the "COMMON STOCK"). In addition, for the sole purpose of covering
over-allotments in connection with the sale of the Underwritten Shares, the
Company proposes to issue and sell to the Underwriters, at the option of the
Underwriters, up to an additional 930,000 shares (the "OPTION SHARES") of Common
Stock. The Underwritten Shares and the Option Shares are herein referred to as
the "SHARES."
As part of the offering contemplated by this Agreement XX Xxxxx
Securities Inc. (in such capacity, the "DESIGNATED UNDERWRITER") has agreed to
reserve out of the Underwritten Shares purchased by the Underwriters under this
Agreement up to 310,000 Shares for sale to the Company's directors, officers,
employees, business associates and family members associated with the foregoing
(collectively, "PARTICIPANTS"), as set forth in the Prospectus (as defined
herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The
Underwritten Shares to be sold by the Designated Underwriter pursuant to the
Directed Share Program (the "DIRECTED SHARES") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Shares not orally confirmed for purchase by a Participant by the end of
the business day on which the offering of the Shares commences will be offered
to the public by the Underwriters as set forth in the Prospectus.
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The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it became or shall become effective,
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "REGISTRATION STATEMENT," and the
prospectus in the form first used to confirm sales of Shares is referred to in
this Agreement as the "PROSPECTUS." 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. The term "preliminary prospectus" means any preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act.
The Company hereby agrees with the Underwriters as follows:
1. Upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, the Company agrees
to issue and sell the Underwritten Shares to the several Underwriters as
hereinafter provided, and each Underwriter agrees to purchase, severally and not
jointly, from the Company at a purchase price per share of $[ ] (the "PURCHASE
PRICE") the number of Underwritten Shares to be purchased by such Underwriter as
set forth opposite the name of such Underwriter in SCHEDULE I hereto.
Upon the basis of the representations and warranties herein contained,
but subject to the conditions hereinafter stated, in addition, the Company
agrees to issue and sell the Option Shares to the several Underwriters as
hereinafter provided, and each Underwriter shall have the option to purchase,
severally and not jointly, from the Company at the Purchase Price that portion
of the number of Option Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Option Shares by a fraction, the
numerator of which is the maximum number of Underwritten Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in SCHEDULE I hereto and the denominator of which is the maximum
number of Underwritten Shares which all of the Underwriters are entitled to
purchase hereunder, for the sole purpose of covering over-allotments (if any) in
the sale of Underwritten Shares by the several Underwriters.
The Underwriters may exercise the option to purchase the Option Shares
at any time (but not more than once) on or before the thirtieth day following
the date of the Prospectus, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised and the date and time when the Option Shares
are to be delivered and paid for, which may be the same
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date and time as the Closing Date (as hereinafter defined) but shall not be
earlier than the Closing Date or later than the tenth full Business Day (as
hereinafter defined) after the date of such notice (unless such time and date
are postponed in accordance with the provisions of Section 9 hereof). Any such
notice shall be given at least two Business Days prior to the date and time of
delivery specified therein.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Shares as soon after (A) the Registration Statement has
become effective and (B) the parties hereto have executed and delivered this
Agreement as in the judgment of the Representatives is advisable and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Representatives,
in the case of the Underwritten Shares, on [ ], 2002, or at such other time on
the same or such other date, not later than the fifth Business Day thereafter,
as the Representatives and the Company may agree upon in writing, or, in the
case of the Option Shares, on the date and time specified by the Representatives
in the written notice of the Underwriters' election to purchase such Option
Shares. The time and date of such payment for the Underwritten Shares is
referred to herein as the "CLOSING DATE," and the time and date for such payment
for the Option Shares, if other than the Closing Date, is herein referred to as
the "ADDITIONAL CLOSING DATE." As used herein, 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.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company. The certificates for
the Shares will be made available for inspection and packaging by the
Representatives at the office of X.X. Xxxxxx Securities Inc. set forth above not
later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date or the Additional Closing Date, as the case may be.
4. The Company hereby represents and warrants to each of the several
Underwriters that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all
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material respects with the Securities Act, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that the
foregoing representations and warranties shall not apply to any statements in or
omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission; and the
Registration Statement and the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the Securities
Act and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing Date or
Additional Closing Date, as the case may be, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED that the foregoing representations and warranties
shall not apply to any statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
(c) the financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus present fairly the
financial position of the Company as of the dates indicated and the results of
their operations and changes in their consolidated cash flows for the periods
specified; and such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and the
supporting schedules included in the Registration Statement, if any, present
fairly the information required to be stated therein;
(d) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any change in
the capital stock (except for the exercise of stock options or the issuance of
shares of Common Stock pursuant to the Company's 1997 Stock Option Plan, as
amended) or long-term debt of the Company, or any material adverse change, or
any development that would
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reasonably be expected to cause a prospective material adverse change, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company, taken as
a whole (a "MATERIAL ADVERSE CHANGE"), otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus; and except as set
forth or contemplated in the Registration Statement and the Prospectus, the
Company has not entered into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company, taken as a whole, except
as set forth or contemplated in the Registration Statement and the Prospectus;
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Registration Statement and the Prospectus; and the
Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of the Company, taken as a whole (a "MATERIAL ADVERSE
EFFECT");
(f) this Agreement has been duly authorized, executed and delivered by the
Company;
(g) the Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus and such authorized capital stock
conforms as to legal matters to the description thereof set forth in the
Registration Statement and the Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and are not subject to any pre-emptive or similar
rights; and, except as described in or expressly contemplated by the
Registration Statement and the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exercisable 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 exercisable or exchangeable securities or any such rights,
warrants or options;
(h) the Shares have been duly authorized, and, when issued and delivered to and
paid for by the Underwriters in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable and will conform to the
description
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thereof set forth in the Registration Statement and the Prospectus; and the
issuance of the Shares is not subject to any preemptive or similar rights;
(i) the Company is not, or with the giving of notice or lapse of
time or both would not be, in violation or breach of or in default under its
certificate of incorporation or by-laws or 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 properties or
assets of the Company is subject, except for violations, breaches and defaults
which would not, individually or in the aggregate, have a Material Adverse
Effect; the issuance and sale of the Shares and the performance by the Company
of its obligations under this Agreement and the consummation of the transactions
contemplated herein and in the Prospectus will not conflict with or constitute a
breach or violation of or a default under any of the terms or provisions of, 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, nor will any
such action result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any applicable law or statute or any
applicable order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, license, registration or qualification of or
with any court or governmental agency or body is required for the issuance and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the Prospectus, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained or made under the Securities Act and as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(j) other than as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened or
contemplated against or affecting the Company or any of its properties or assets
or to which the Company is or may be a party or to which any property or assets
of the Company is or may be the subject which, if determined adversely to the
Company, could, individually or in the aggregate, have, or reasonably be
expected to have, a Material Adverse Effect;
(k) there are no statutes, regulations, contracts or other
documents or legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened that are required to be
described in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement, as the case may be, that are not described or
filed;
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(l) no relationship, direct or indirect, exists between or among
the Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand, which is required by
the Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(m) the Company has good and marketable title in fee simple to all
items of real property and good and marketable title to all personal property
owned by it, in each case free and clear of all liens, encumbrances and defects,
except such as are described or referred to in the Registration Statement and
the Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made or proposed to be made of such property
by the Company; and any real property and buildings held under lease by the
Company are held by it under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company;
(n) no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or by reason of the
issuance and sale of the Shares, except for rights which have been waived;
(o) the Company is not and, after giving effect to the offering
and the sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
(p) Xxxxxx Xxxxxxxx LLP ("AA"), who have certified certain
financial statements of the Company, are independent public accountants as
required by the Securities Act;
(q) the Company has filed all federal, state, local and foreign
tax returns which have been required to be filed and have paid all taxes shown
thereon and all assessments received by it to the extent that such taxes have
become due and are not being contested in good faith; and, no tax deficiency has
been determined adversely to the Company which has had, nor does the Company
have any knowledge of any tax deficiency, which if determined adversely to the
Company which would reasonably be expected to have a Material Adverse Effect;
(r) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that would be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock;
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(s) the statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
which are believed by the Company to be reliable;
(t) the Company owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals, domestic or
foreign, necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date hereof,
except where the failure to own, possess, obtain or make would not, individually
or in the aggregate, have a Material Adverse Effect; and the Company has not
received any notice of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and the
Prospectus, and the Company is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date hereof;
(u) except as described in the Registration Statement and the
Prospectus, the Company owns, is licensed to use or otherwise possesses adequate
rights to use the patents, patent rights, licenses, inventions, trademarks,
service marks, trade names, copyrights and know-how, including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems, processes or procedures (collectively, the "INTELLECTUAL PROPERTY"),
reasonably necessary to carry on the business conducted by it, except to the
extent that the failure to own, be licensed to use or otherwise possess adequate
rights to use such Intellectual Property would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; the Company
has not received any notice of infringement of or conflict with, and the Company
has no knowledge of any infringement of or conflict with, asserted rights of
others with respect to its Intellectual Property which would reasonably be
expected to result in a Material Adverse Effect; the discoveries, inventions,
products or processes of the Company referred to in the Registration Statement
and the Prospectus do not, to the knowledge of the Company, infringe or conflict
with any right or patent of any third party, or any discovery, invention,
product or process which is the subject of a patent application filed by any
third party which patent application has been published or is otherwise known to
the Company which could reasonably be expected to result in a Material Adverse
Effect; except as set forth in the Registration Statement and the Prospectus,
the Company is not obligated to pay a royalty, grant a license or provide other
consideration to any third party in connection with its patents, patent rights,
licenses, inventions, trademarks, service marks, trade names, copyrights and
know-how; and no third party, including any academic or governmental
organization, possesses
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rights to the Intellectual Property which, if exercised, could reasonably be
expected to have a Material Adverse Effect;
(v) there are no existing or, to the knowledge of the Company,
threatened labor disputes with the employees of the Company which would
reasonably be expected to have a Material Adverse Effect;
(w) the Company carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of its business
and the value of its properties and as is customary for companies engaged in
similar businesses in similar industries;
(x) the Company (i) is in compliance with any and all applicable
federal, state, local and foreign laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "ENVIRONMENTAL
LAWS"), (ii) has received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its businesses and (iii) is in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(y) each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
that is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates
has been maintained in material compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the "CODE");
no prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any such plan (excluding
transactions effected pursuant to a statutory or administrative exemption) which
could be reasonably be expected to have a Material Adverse Effect; for each such
plan which is subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no "accumulated funding deficiency," as defined in Section 412 of
the Code, has been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceed the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions;
(z) except for compensation to be received by the Underwriters
under this Agreement, to the knowledge of the Company, there are no outstanding
claims for
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services, either in the nature of a finder's fee or origination fee, with
respect to any of the transactions contemplated hereby;
(aa) (i) the Registration Statement, the Prospectus and any
preliminary prospectus, as amended or supplemented, if applicable, comply, and
any further amendments or supplements thereto will comply, with any applicable
laws or regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States;
(bb) the Company has not offered, or caused the Underwriters to
offer, any Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business with the
Company or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products; and
(cc) at or prior to the Closing, all outstanding shares of
preferred stock of the Company will be converted into an equal number of shares
of Common Stock and no shares of preferred stock will be outstanding.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) if the Registration Statement is not already effective, to use
its best efforts to cause the Registration Statement to become effective at the
earliest possible time and, if required, to file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A under
the Securities Act and to furnish copies of the Prospectus to the Underwriters
as soon as practicable succeeding the date of this Agreement in such quantities
as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the
Representatives four signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, and to each
other Underwriter a conformed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case without exhibits and, during the
period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) as
the Representatives may reasonably request;
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(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object in
writing;
(d) to advise the Representatives promptly, and to confirm such
advice in writing, (i) when the Registration Statement has become effective,
(ii) when any amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amended prospectus
has been filed and to furnish the Representatives with copies thereof, (iv) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose, (vi) of the
occurrence of any event, during the period mentioned in paragraph (e) below, as
a result of which the Prospectus as then amended or supplemented would include
an 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 when the Prospectus is delivered to a purchaser, not misleading,
and (vii) of the receipt by the Company of any notification with respect to any
suspension of the registration or qualification of the Shares for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such registration
or qualification of the Shares, or notification of any such order thereof, and,
if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the Underwriters
a prospectus relating to the Shares is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall occur
as a result of which it is necessary as in the opinion of counsel for the
Underwriters to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary as in the
opinion of counsel for the Underwriters to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Shares may have been sold
by the Representatives on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus
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as so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to register or qualify Shares for offer and sale
under the securities or blue sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such registration
qualification in effect so long as reasonably required for distribution of the
Shares; PROVIDED that the Company shall not be required to qualify as a dealer
in securities or to become subject to taxation or file a general consent to
service of process in any jurisdiction;
(g) to timely file such reports pursuant to the Exchange Act as
are necessary in order to make generally available to its security holders and
to the Representatives an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring
after the effective date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(h) for a period of five years after the date of the Prospectus,
to furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange; provided, however, that any such report,
communication or financial statement publicly filed with the Commission and
available to the general public through the Commission's XXXXX database shall be
deemed to have been furnished to the Representatives;
(i) for a period of 180 days after the date of the Prospectus, not
to, directly or indirectly, (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of any shares of Common Stock or any securities of
the Company which are substantially similar to the Common Stock, including but
not limited to any securities convertible into or exercisable or exchangeable
for, or that represent the right to receive, Common Stock (collectively, the
"COMPANY SECURITIES") or (ii) enter into any swap, option, future, forward or
other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Company Securities, regardless of whether any
of the transactions described in clause (i) or (ii) above is to be settled by
delivery of Company Securities, in cash or otherwise, without the prior written
consent of X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, other than
(x) the Shares to be sold hereunder, (y) shares to be issued upon conversion of
the convertible promissory note described in the Registration Statement and the
Prospectus, and (z) any options granted or shares of Common Stock of the Company
issued upon the exercise of options granted or to be granted under the Company's
1997 Stock Option Plan, as
-13-
amended, or 2002 Employee Stock Purchase Plan, each as existing on the date of
the Prospectus;
(j) to use the net proceeds received by the Company from the sale
of the Shares pursuant to this agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) to use its best efforts to apply to have the Shares quoted on
The Nasdaq National Market;
(l) to file with the Commission such reports as may be required by
Rule 463 under the Securities Act;
(m) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, registration, transfer, execution,
issuance and delivery of the Shares, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus, including in each case all exhibits,
amendments and supplements thereto, (iii) incurred in connection with the
listing of the Shares on The Nasdaq National Market, (iv) related to the filing
with, and clearance of the offering by, the National Association of Securities
Dealers, Inc. (the "NASD"), (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, any blue sky
memoranda and the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided, (vi) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors, (vii) the cost of preparing
stock certificates, (viii) the cost and charges of the Company's transfer agent
and registrar and (ix) costs and expenses (including all filing fees) incurred
in connection with the registration or qualification of the Shares under the
laws of such jurisdictions as the Representatives may designate (including fees
of counsel for the Underwriters and its disbursements), PROVIDED that the
aggregate fees of counsel to the Underwriters payable by the Company under this
Section 5(m) shall not exceed $20,000;
(n) in connection with the Directed Share Program, to ensure that
the Directed Shares will be restricted to the extent required by the NASD or the
NASD rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of the effectiveness of the Registration
Statement; the Designated Underwriter shall notify the Company as to which
Participants will need to be so restricted; and the Company shall direct the
transfer agent to place stop transfer restrictions upon such securities for such
period of time;
-14-
(o) to pay all reasonable fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program; PROVIDED that the
aggregate fees of counsel to the Underwriters payable by the Company pursuant to
this Section 5(o) shall not exceed $5,000; and
(p) to comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in which
the Directed Shares are offered in connection with the Directed Share Program.
6. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, are subject to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) the Registration Statement shall have become effective (or if
a post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than 5:00
p.m., New York City time, on the date hereof; no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and, to the Company's knowledge, all
requests by the Commission for additional information shall have been complied
with;
(b) the representations and warranties of the Company contained
herein (i) if qualified as to materiality, are true and correct and (ii) in all
other cases, are true and correct in all material respects, in each case on and
as of the Closing Date or the Additional Closing Date, as the case may be, as if
made on and as of the Closing Date or the Additional Closing Date, as the case
may be, and the Company shall have complied in all material respects with all
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date or the Additional Closing Date, as the case may
be;
(c) since the respective dates as of which information is given in
the Prospectus, there shall not have been any change in the capital stock or
long-term debt of the Company, or any Material Adverse Change, otherwise than as
set forth or contemplated in the Prospectus, the effect of which in the judgment
of the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the Closing Date or the
Additional Closing Date, as the case may
-15-
be, on the terms and in the manner contemplated in the Prospectus; and the
Company has not sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus;
(d) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate
of the Chief Executive Officer and Chief Financial Officer of the Company,
satisfactory to the Representatives, to the effect set forth in subsections (a)
through (c) of this Section 6;
(e) Xxxxxxx Xxxx LLP ("XXXXXXX XXXX"), special counsel for the
Company, shall have furnished to the Representatives their written opinion,
dated the Closing Date or the Additional Closing Date, as the case may be,
substantially in the form attached hereto as Annex 1.
(f) Xxxx and Xxxx LLP, intellectual property counsel for the
Company ("XXXX & XXXX"), shall have furnished to the Representatives their
written opinion, dated the Closing Date or the Additional Closing Date, as the
case may be, substantially in the form attached hereto as Annex 2.
(g) on the date hereof and on the effective date of the most
recently filed post-effective amendment filed on or subsequent to the date
hereof to the Registration Statement, if any, and also on the Closing Date or
Additional Closing Date, as the case may be, AA shall have furnished to you
letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus;
(h) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion of
Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Underwriters, with respect to the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(i) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for quotation on The
Nasdaq National Market, subject to official notice of issuance;
-16-
(j) on or prior to the Closing Date or Additional Closing Date, as
the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives shall reasonably
request; and
(k) the "lock-up" agreements, each substantially in the form of
EXHIBIT A hereto, among you and the directors, officers and stockholders of the
Company relating to sales and certain other dispositions of Company Securities,
delivered to you on or before the date hereof, shall be in full force and effect
on the Closing Date or Additional Closing Date, as the case may be.
7. The Company agrees to indemnify and hold harmless each Underwriter,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of Shares and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1974, as amended (the "EXCHANGE ACT"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses reasonably incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses reasonably incurred in connection with any suit,
action or proceeding or any claim asserted) (i) caused by any untrue statement
or alleged untrue statement of a material fact contained in any material
prepared by or with the consent of the Company for distribution to Participants
in connection with the Directed Share Program or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase in accordance with the procedures of the
Directed Share Program; or (iii) related to, arising out of, or in connection
with the Directed Share Program, in the case of each of clauses (i), (ii) and
(iii) other than losses, claims, damages or
-17-
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of the
Designated Entities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
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 indemnity may be sought pursuant to any of the
three preceding paragraphs of this Section 7, such person (the "INDEMNIFIED
PERSON") shall promptly notify the person or persons against whom such indemnity
may be sought (each, an "INDEMNIFYING PERSON") in writing, and such Indemnifying
Persons, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Persons may designate in such proceeding who are
entitled to indemnification hereunder and shall pay the reasonable fees and
expenses of such counsel related to such proceeding. 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
and not the Indemnifying Persons unless (i) the Indemnifying Persons 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 or (iii) the named parties in
any such proceeding (including any impleaded parties) include both an
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that no Indemnifying Person
shall, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters, each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Shares and such control
persons of Underwriters shall be designated in writing by X.X. Xxxxxx Securities
Inc. and any such separate firm for the Company, its directors, its officers who
sign the Registration Statement and such control persons of the Company shall be
designated in writing by the Company. Notwithstanding anything contained herein
to the contrary, if indemnity may be sought pursuant to the second paragraph of
this Section 7 in respect of such action, suit or proceeding (including any
governmental or regulatory investigation), claim or demand, then in addition to
such separate firm for the Indemnified Persons, the Indemnifying Person shall be
liable for the reasonable fees and
-18-
expenses of not more than one separate firm (in addition to any local counsel)
for the Designated Underwriter for the defense of any losses, claims, damages
and liabilities arising out of the Directed Share Program, and all other
persons, if any, who control the Designated Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act. No
Indemnifying Person shall 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, each Indemnifying Person agrees to
indemnify any 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 an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, such
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement; PROVIDED that such Indemnified Person shall not have received
written notice from such Indemnifying Person of its good faith dispute as to its
obligation to reimburse such fees and expenses. No Indemnifying Person shall,
without the prior 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 indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first four paragraphs of
this Section 7 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 hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand 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 hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate public offering price of
the Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by
-19-
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.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph 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 investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares set forth opposite their names in SCHEDULE I hereto,
and not joint.
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 party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (or, in the case of the Option Shares, prior to the
Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, The Nasdaq National Market, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii)
-20-
trading of any securities of 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 in New York shall have been declared
by either 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 that, in the judgment of the Representatives,
is material and adverse and which, in the judgment of the Representatives, makes
it impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I bears to the aggregate
number of Underwritten Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Shares are not made within 36 hours after such
default, this Agreement (or the obligations of the several Underwriters to
purchase the Option Shares, as the case may be) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Representatives or the Company shall have the right to
postpone the Closing Date (or, in the case of the Option Shares, the Additional
Closing Date), but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
-21-
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, each affiliate of any Underwriter participating
in the distribution of the Shares, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Shares from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of
the Underwriters, and any such action taken by the Representatives jointly or
by X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters.
All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (telefax: 212-648-5705), Attention: Syndicate Department, copy
to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telefax: 212-269-5420), Attention: Xxxxxx X. Xxxxxxxxx, Esq. Notices to the
Company shall be given to it at its office, 000 Xxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx (telefax: 617-868-1515), Attention: Xxxxx Xxxxxxx.
Copies of notices to the Company should be given to Xxxxxxx Xxxx LLP, 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (telefax: 617-951-8736),
Attention: Xxxx X. Xxxxxxxxx III, Esq.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
NEOGENESIS PHARMACEUTICALS, INC.
By:
-----------------------------
Name:
Title:
Accepted: [ ], 2002
X.X. XXXXXX SECURITIES INC.
BEAR, XXXXXXX & CO., INC.
XX XXXXX SECURITIES INC.
Acting severally on behalf of themselves
and the several Underwriters listed in
Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By:
----------------------------------------------
Name:
Title:
SCHEDULE I
Number of
Underwritten
Shares To Be
UNDERWRITER Purchased
----------- -------------
X.X. Xxxxxx Securities Inc.........................
Bear, Xxxxxxx & Co., Inc...........................
XX Xxxxx Securities Inc. ..........................
-------------
Total............................ 6,200,000
=============
Exhibit A
LOCK-UP AGREEMENT
October 22, 2001
X.X. XXXXXX SECURITIES INC.
As a Representative of the several
Underwriters to be named in Schedule I to
the Underwriting Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: NeoGenesis Drug Discovery, Inc. -
INITIAL PUBLIC OFFERING OF COMMON STOCK
Ladies and Gentlemen:
The undersigned understands that you, as a Representative of the
several Underwriters, propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with NeoGenesis Drug Discovery, Inc., a Delaware
corporation (the "COMPANY"), providing for the public offering (the "PUBLIC
OFFERING") by the several Underwriters to be named in Schedule I to the
Underwriting Agreement (the "UNDERWRITERS") of Common Stock, $0.001 par value,
of the Company (the "COMMON STOCK").
In consideration of the Underwriters' agreement to purchase and make
the Public Offering of Common Stock, and for other good and valuable
consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without the prior written consent of X.X. Xxxxxx Securities Inc. on
behalf of the Underwriters, the undersigned will not, directly or indirectly,
from the date hereof and through the period ending 180 days after the date of
the prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, announce the intention to sell, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of any
shares of Common Stock or any securities of the Company which are substantially
similar to the Common Stock, including but not limited to any securities
convertible into or exercisable or exchangeable for, or that represent the right
to receive, Common Stock (including, but not limited to, Common Stock which may
be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations of the Securities and Exchange Commission and securities
which may be issued upon exercise of a
-26-
stock option or warrant) (collectively, the "COMPANY SECURITIES") or (2) enter
into any swap, option, future, forward or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Company
Securities, regardless of whether any of the transactions described in clause
(1) or (2) above is to be settled by delivery of Company Securities, in cash or
otherwise. In addition, the undersigned agrees that, without the prior written
consent of X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, it will
not, from the date hereof and through the period ending 180 days after the date
of the Prospectus, make any demand for, or exercise any right with respect to,
the registration of any Company Securities.
In furtherance of the foregoing, the Company and any duly appointed
transfer agent for the registration or transfer of the securities described
herein are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if either (1) the Securities and
Exchange Commission has not declared the registration statement on Form S-1
relating to the Public Offering (the "REGISTRATION STATEMENT") effective on or
prior to April 30, 2002, (2) the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Common Stock to be sold thereunder or
(3) the Company or X.X. Xxxxxx Securities Inc. notifies the other in writing,
prior to the effectiveness of the Registration Statement or the execution of the
Underwriting Agreement referenced above, of its intention not to proceed with
the Public Offering, the undersigned shall be released from all obligations
under this Lock-Up Agreement.
The undersigned recognizes that the Public Offering will be of benefit
to the undersigned and will benefit the Company by, among other things, raising
capital for its operations. The undersigned understands that the Underwriters
are entering into the Underwriting Agreement and proceeding with the Public
Offering in reliance upon this Lock-Up Agreement.
THIS LOCK-UP AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF.
Very truly yours,
---------------------------------
Name:
Title:
-27-
Accepted as of the date first set forth above:
X.X. XXXXXX SECURITIES INC.
Acting on behalf of itself and the several Underwriters
to be named in Schedule I to the Underwriting Agreement
By: X.X. XXXXXX SECURITIES INC.
By:
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Name:
Title:
