Exhibit 1.1
INTERCEPT PHARMACEUTICALS, INC.
(a Delaware corporation)
[l]
Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: [l], 2012
INTERCEPT PHARMACEUTICALS, INC.
(a Delaware corporation)
[l]
Shares of Common Stock
UNDERWRITING AGREEMENT
[l],
2012
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx
Incorporated
as Representative of the several
Underwriters
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Intercept Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), confirms its agreements with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and each of the other Underwriters named in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx is acting as representative (in such capacity, the “Representative”), with respect
to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, par value $0.001 per share, of the Company (“Common Stock”) set forth in Schedules A
and B-1 hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described
in Section 2(b) hereof to purchase all or any part of [l] additional shares of
Common Stock. The aforesaid [l] shares of Common Stock (the “Initial Securities”)
to be purchased by the Underwriters and all or any part of the [l] shares of Common
Stock subject to the option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively,
the “Securities.”
The Company understands
that the Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
The Company has filed
with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (No. 333-183706),
including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the
Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations
of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the
1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule
430A(b) is herein called the “Rule 430A Information.” Such registration statement, including the amendments thereto,
the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein
called the “Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement”
shall include the Rule 462(b) Registration Statement. Each prospectus used prior to the effectiveness of the Registration Statement,
and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a “preliminary prospectus.” The final prospectus, in the form first furnished
to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.” For
purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment
or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system or any successor system (“XXXXX”).
As used in this Agreement:
“Applicable
Time” means [__:00 P./A.M.], New York City time, on [l], 2012 or such other
time as agreed by the Company and Xxxxxxx Xxxxx.1
“General
Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the
most recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on
Schedule B-1 hereto, all considered together.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the
1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission
by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether
or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona
Fide Electronic Road Show”)), as evidenced by its being specified in Schedule B-2 hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
| 1 | The “Applicable Time” must necessarily fall after pricing and before the first oral
sale to any investor. An FWP containing issuer information or a final term sheet or similar written document conveying the final
terms can be part of the General Disclosure Package only if it is adequately conveyed to investors prior to the Applicable Time.
As a result, the Applicable Time may need to be pushed back to allow for dissemination and digestion of information, and may even
need to be pushed back to the morning following pricing. The Applicable Time should not be the time when this Agreement is signed,
unless that is expected to be the time of the first oral sale to investors. |
SECTION 1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable
Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) Registration
Statement and Prospectuses. Each of the Registration Statement and any post-effective amendment thereto has become effective
under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto
has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has
been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge,
threatened by the Commission. The Company has complied with each request (if any) from the Commission for additional information.
Each of the
Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment
or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriters for use in connection with
this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Time or at
any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit
to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable
Time, neither (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, nor (C) any individual
Written Testing-the-Waters Communication (as defined in Section 1(a)(xxxviii)), when considered together with the General Disclosure
Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the
time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes
or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment
thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx expressly for use therein.
For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading
“Underwriting–Commissions and Discounts,” the information in the fourth paragraph under the heading “Underwriting–Nasdaq
Global Market Listing,” the information in the first, second, third and fourth paragraphs under the heading “Underwriting–Price
Stabilization, Short Positions and Penalty Bids” and the information under the heading “Underwriting–Electronic
Distribution” in each case contained in the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been
superseded or modified. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) such
that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities.
(iv) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an ineligible issuer.
(v) Independent
Accountants. The accountants who certified the consolidated financial statements included in the Registration Statement, the
General Disclosure Package and the Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act Regulations
and the Public Company Accounting Oversight Board.
(vi) Financial
Statements; Non-GAAP Financial Measures. The financial statements included in the Registration Statement, the General Disclosure
Package and the Prospectus, together with the related notes, present fairly, in all material respects, the financial position of
the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity
and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout
the periods involved, except in the case of unaudited, interim financial statements, subject to normal year-end audit adjustments
and the exclusion of certain footnotes. The selected financial data and the summary financial information included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly, in all material respects, the information shown therein
and have been compiled on a basis consistent with that of the audited financial statements included therein. Except as included
therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by
reference in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations.
All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of
the Securities Exchange Act of 1934, as amended (the “1934 Act”) and Item 10 of Regulation S-K of the 1933 Act, to
the extent applicable.
(vii) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those
in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise,
and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(viii) Good
Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(ix) Good
Standing of Subsidiaries. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, each “significant subsidiary” of the Company. as such term is defined in Rule 1-02 of Regulation S-X (each,
a “Subsidiary” and, collectively, the “Subsidiaries”), has been duly organized and is validly existing
in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power and authority
to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure
Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in
the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock
of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of
the outstanding shares of capital stock of any Subsidiary were issued in violation of the preemptive or similar rights of any securityholder
of such Subsidiary. The only subsidiaries of the Company are (A) the subsidiaries listed on Exhibit 21 to the Registration Statement
and (B) certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant
subsidiary” as defined in Rule 1-02 of Regulation S-X.
(x) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus).
The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable.
None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(xi) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xii) Authorization
and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable;
and the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company.
The Common Stock conforms, in all material respects, to all statements relating thereto contained in the Registration Statement,
the General Disclosure Package and the Prospectus and such description conforms, in all material respects, to the rights set forth
in the instruments defining the same. No holder of Securities will be subject to personal liability solely by reason of being such
a holder.
(xiii) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement,
other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus
and have been waived.
(xiv) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its
charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound or to which any of the properties or assets of the Company or any subsidiary is subject (collectively,
“Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a
Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any
arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having
jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a
“Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a
Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus
(including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described
therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or
any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events
or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will
such action result in any violation of (i) the provisions of the certificate of incorporation, by-laws or similar
organizational document of the Company or any of its subsidiaries or (ii) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any Governmental Entity, except in the case of clause (ii) for such violations as would
not, singly or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means
any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(xv) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result
in a Material Adverse Effect.
(xvi) Absence
of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there
is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge
of the Company, threatened, against or affecting the Company or any of its subsidiaries, which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect their respective
properties or assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company of
its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such
subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in the Registration
Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business,
would not reasonably be expected to result in a Material Adverse Effect.
(xvii) Accuracy
of Exhibits. There are no contracts or documents to which the Company or any of its subsidiaries is subject or to which the
Company or any of its subsidiaries is bound which are required to be described in the Registration Statement or to be filed as
exhibits to the Registration Statement which have not been so described in all material respects or filed as required.
(xviii) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or
decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations,
the rules of the NASDAQ Stock Market LLC, state securities laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xix) Possession
of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse
Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xx) Title
to Property. The Company and its subsidiaries do not own any real property. The Company and its subsidiaries have title to
all personal property owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure
Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus,
are in full force and effect, and neither the Company nor any such subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxi) Intellectual
Property. The Company and its subsidiaries own or possess the right to use all patents, patent applications, inventions, licenses,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names, domain names, and copyrights, and registrations and applications for registration
of any of the foregoing (collectively, “Intellectual Property”) necessary to conduct their business as presently conducted
and currently contemplated to be conducted in the future as set forth in the Registration Statement, the General Disclosure Package
or the Prospectus. To the knowledge of the Company, neither the Company nor any of its subsidiaries, whether through their respective
products and services or the conduct of their respective businesses, has infringed, misappropriated, conflicted with or otherwise
violated, or is currently infringing, misappropriating, conflicting with or otherwise violating, and none of the Company or its
subsidiaries have received any communication or notice of infringement of, misappropriation of, conflict with or violation of,
any Intellectual Property of any other person or entity. Neither the Company nor any of its subsidiaries has received any communication
or notice alleging that by conducting their business as set forth in the Registration Statement, the General Disclosure Package
or the Prospectus, such parties would infringe, misappropriate, conflict with, or violate, any of the Intellectual Property of
any other person or entity. The Company knows of no infringement, misappropriation or violation by others of Intellectual Property
owned by or licensed to the Company or its subsidiaries. The Company and its subsidiaries have taken all reasonable steps necessary
to secure their interests in such Intellectual Property from their employees and contractors and to protect the confidentiality
of all of their confidential information and trade secrets. None of the Intellectual Property employed by the Company or its subsidiaries
has been obtained or is being used by the Company or its subsidiaries in violation of any contractual obligation binding on the
Company or any of its subsidiaries or, to the knowledge of the Company, any of their respective officers, directors or employees
or otherwise in violation of the rights of any persons. Except as described in the Registration Statement, the General Disclosure
Package, or the Prospectus, (i) the Company is not aware of outstanding options, licenses or agreements of any kind relating to
the Intellectual Property which are required to be described in the Registration Statement, the General Disclosure Package and
the Prospectus that are not so described and (ii) neither the Company nor any of its subsidiaries is a party to or bound by any
options, licenses or agreements with respect to the Intellectual Property or other similar rights of any other person or entity
which are required to be described in the Registration Statement, the General Disclosure Package and the Prospectus and are not
so described. All Intellectual Property owned or exclusively licensed by the Company or its subsidiaries is free and clear of all
liens, encumbrances, defects or other restrictions (other than non-exclusive licenses granted in the ordinary course of business),
except those that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The Company
and its subsidiaries are not subject to any judgment, order, writ, injunction or decree of any court or any federal, state, local,
foreign or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or any arbitrator,
nor has it entered into or is it a party to any agreement made in settlement of any pending or threatened litigation, which materially
restricts or impairs their use of any Intellectual Property.
(xxii) Company
IT Systems. The Company and its subsidiaries own or have a valid right to access and use all computer systems, networks, hardware,
software, databases, websites, and equipment used to process, store, maintain and operate data, information, and functions used
in connection with the business of the Company and its subsidiaries (the “Company IT Systems”), except as would not,
individually or in the aggregate, have a Material Adverse Effect. The Company IT Systems are adequate for, and operate and perform
in all material respects as required in connection with, the operation of the business of the Company and its subsidiaries as currently
conducted, except as would not, individually or in the aggregate, have a Material Adverse Effect. The Company and its subsidiaries
have implemented commercially reasonable backup, security and disaster recovery technology consistent in all material respects
with applicable regulatory standards and customary industry practices.
(xxiii) Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of
any applicable federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals required for their operations
under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any
of its subsidiaries and (D) to the knowledge of the Company, there are no events or circumstances existing as of the date hereof
that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by
any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxiv) Accounting
Controls. The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and
(D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and
the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in
the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially adversely affected, or is reasonably likely to materially adversely
affect, the Company’s internal control over financial reporting.
(xxv) Compliance
with the Xxxxxxxx-Xxxxx Act. The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration
Statement, it will be in compliance in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules
and regulations promulgated thereunder or implementing the provisions thereof (the “Xxxxxxxx-Xxxxx Act”) that are then
in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement, and is or will
be taking steps to ensure that it will be in compliance in all material respects with other provisions of the Xxxxxxxx-Xxxxx Act
not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company after the effectiveness
of the Registration Statement.
(xxvi)
Payment of Taxes. All United States federal income tax returns of the Company and its subsidiaries required by law to be
filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. No
assessment in connection with United States federal tax returns has been made against the Company. The Company and its subsidiaries
have filed all other tax returns that are required to have been filed by them through the date hereof or have timely requested
extensions thereof pursuant to applicable foreign state, local or other law except insofar as the failure to file such returns
would not result in a Material Adverse Effect and has paid all taxes due pursuant to such returns or all taxes due and payable
pursuant to any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been established by the Company or its subsidiaries and except where the failure
to pay such taxes would not result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Company
in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments
or reassessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would
not result in a Material Adverse Effect.
(xxvii) Insurance.
The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers,
in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective
properties and assets, and all such insurance is in full force and effect. The Company has no reason to believe that it or any
of its Subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to
obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Effect. Neither of the Company nor any of its Subsidiaries has been
denied any insurance coverage which it has sought or for which it has applied.
(xxviii) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will
not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxix) Absence
of Manipulation. Neither the Company nor, to the Company’s knowledge, any affiliate of the Company has taken, nor will
the Company or any direct or indirect subsidiary take, directly or indirectly, any action which is designed, or would reasonably
be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(xxx) Foreign
Corrupt Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in violation of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure continued
compliance therewith.
(xxxi)
Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively,
the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxxii) OFAC.
None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is an individual or entity (“Person”) currently
the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security
Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions
authority (collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory
that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities,
or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund
any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject
of Sanctions or 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.
(xxxiii) Lending
Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus,
the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter
and (ii) does not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to
any affiliate of any Underwriter.
(xxxiv) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure
Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable
and accurate and, to the extent required, the Company has obtained written consent to the use of such data from such sources.
(xxxv) Regulatory
Matters. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, and except as
would not, singly or in the aggregate, result in a Material Adverse Effect: (i) neither the Company nor any of its subsidiaries
has received any FDA Form 483, notice of adverse finding, warning letter or other correspondence or notice from the U.S. Food and
Drug Administration (“FDA”) or any other Governmental Entity alleging or asserting noncompliance with any Applicable
Laws (as defined in clause (ii) below) or Authorizations (as defined in clause (iii) below); (ii) the Company and each of its subsidiaries
is and has been in compliance with statutes, laws, ordinances, rules and regulations applicable to the Company and its subsidiaries
for the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion,
sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company, including
without limitation, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., similar laws of other Governmental
Entities and the regulations promulgated pursuant to such laws (collectively, “Applicable Laws”); (iii) the Company
and each of its subsidiaries possesses all licenses, certificates, approvals, clearances, authorizations, permits and supplements
or amendments thereto required by any such Applicable Laws and/or to carry on its businesses as now conducted (“Authorizations”)
and such Authorizations are valid and in full force and effect and the Company is not in violation of any term of any such Authorizations;
(iv) neither the Company nor any of its subsidiaries has received notice of any ongoing claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any Governmental Entity or third party alleging that any product,
operation or activity is in violation of any Applicable Laws or Authorizations or has any knowledge that any such Governmental
Entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding, nor, to
the best of the Company’s knowledge, has there been any noncompliance with or violation of any Applicable Laws by the Company
or any of its subsidiaries that could reasonably be expected to require the issuance of any such communication or result in an
investigation, corrective action, or enforcement action by FDA or similar Governmental Entity; (v) neither the Company nor any
of its subsidiaries has received notice that any Governmental Entity has taken, is taking or intends to take action to limit, suspend,
modify or revoke any Authorizations or has any knowledge that any such Governmental Entity has threatened or is considering such
action; and (vi) the Company and each of its subsidiaries has filed, obtained, maintained or submitted all 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 complete, correct and not misleading on the date filed (or were corrected or supplemented by a subsequent submission).
Neither the Company, any subsidiary nor, to the Company's knowledge, any of their respective directors, officers, employees or
agents has been convicted of any crime under any Applicable Laws or has been the subject of an FDA debarment proceeding. Neither
the Company nor any subsidiary has been nor is now subject to FDA's Application Integrity Policy. To the Company's knowledge, neither
the Company, any subsidiary nor any of its directors, officers, employees or agents, has made, or caused the making of, any false
statements on, or material omissions from, any other records or documentation prepared or maintained to comply with the requirements
of the FDA or any other Governmental Entity. Neither the Company, any subsidiary nor, to the Company's knowledge, any of their
respective directors, officers, employees or agents, have with respect to each of the following statutes, or regulations promulgated
thereto, as applicable: (i) engaged in activities under 42 U.S.C. §§ 1320a-7b or 1395nn; (ii) knowingly engaged in any
activities under 42 U.S.C. § 1320a-7b or the Federal False Claims Act, 31 U.S.C. § 3729; or (iii) knowingly and willfully
engaged in any activities under 42 U.S.C.§ 1320a-7b, which are prohibited, cause for civil penalties, or mandatory or permissive
exclusion from Medicare, Medicaid, or any other State Health Care Program or Federal Health Care Program.
(xxxvi) Research,
Studies and Tests. The research, nonclinical and clinical studies and tests conducted by, or to the knowledge of the Company,
or on behalf of the Company and its subsidiaries have been and, if still pending, are being conducted with reasonable care and
in all material respects in accordance with experimental protocols, procedures and controls pursuant to all Applicable Laws and
Authorizations; the descriptions of the results of such research, nonclinical and clinical studies and tests contained in the Registration
Statement, the General Disclosure Package and the Prospectus are accurate and complete in all material respects and fairly present
the data derived from such research, nonclinical and clinical studies, and tests; except to the extent disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, the Company is not aware of any research, nonclinical or clinical
studies or tests, the results of which the Company believes reasonably call into question the research, nonclinical or clinical
study or test results described or referred to in the Registration Statement, the General Disclosure Package and the Prospectus
when viewed in the context in which such results are described; and neither the Company nor, to the knowledge of the Company, any
of its subsidiaries has received any notices or correspondence from any Governmental Entity requiring the termination, suspension
or material modification of any research, nonclinical or clinical study or test conducted by or on behalf of the Company or its
subsidiaries, as applicable. To the knowledge of the Company, there have been no serious adverse events resulting from any clinical
trial conducted by or on behalf of the Company or any of its subsidiaries.
(xxxvii)
Emerging Growth Company Status. From the time of initial confidential submission of the Registration Statement to the Commission
(or, if earlier, the first date on which the Company engaged directly or through any Person authorized to act on its behalf in
any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,”
as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”). “Testing-the-Waters Communication”
means any oral or written communication with potential investors that are qualified institutional buyers or institutions that are
accredited investors, as such terms are defined in the 1933 Act Regulations, undertaken in reliance on Section 5(d) of the 1933
Act to determine whether such potential investors might have an interest in the public offering of the Initial Securities.
(xxxviii) Testing-the-Waters
Communication. The Company (A) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications
with the consent of the Representative or in which at least one of the Underwriters is present and (B) has not authorized anyone
other than the Representative and the other Underwriters to engage in Testing-the-Waters Communications. The Company reconfirms
that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company
has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule D hereto. "Written Testing-the-Waters
Communication" means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under
the 1933 Act used by, or with the approval of, the Company.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representative
or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale
and Delivery to Underwriters; Closing.
(a) Initial
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the price per share set forth in Schedule A, the Initial Securities in the proportion set
opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Securities, subject, in each
case, to such adjustments among the Underwriters as Xxxxxxx Xxxxx in its sole discretion shall make to eliminate any sales or purchases
of fractional shares.
(b) Option
Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional
[l] shares of Common Stock, at the price per share set forth in Schedule A, less an
amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not
payable on the Option Securities. The option hereby granted may be exercised for 30 days after the date hereof and may be
exercised in whole or in part from time to time upon notice by the Representative to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (a “Date of Delivery”) shall be determined by the Representative,
but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time.
If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject,
in each case, to such adjustments as Xxxxxxx Xxxxx in its sole discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment.
Payment of the purchase price for the Initial Securities shall be made at the offices of Xxxxxxx Procter LLP,
000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as shall be agreed upon by the Representative and the Company, at
9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York City time) on any given
day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other
time not later than ten business days after such date as shall be agreed upon by the Representative and the Company (such time
and date of payment and delivery being herein called “Closing Time”). Delivery of the Initial Securities at the Closing
Time shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise instruct.
In addition, in the
event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representative and
the Company, on each Date of Delivery as specified in the notice from Xxxxxxx Xxxxx to the Company. Delivery of the Option Securities
on each Date of Delivery shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise
instruct.
Payment shall be made
to the Company by wire transfer of immediately available funds to one or more bank accounts designated by the Company against delivery
to the Representative for the respective accounts of the Underwriters of certificates or electronic book entries for the Securities
to be purchased by them. It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Xxxxxxx Xxxxx, individually and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter
whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall
not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements
of Rule 430A, and will notify the Representative as soon as practicable, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if
the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
The Company will affect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b)
(without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not,
it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order,
prevention or suspension and, if any such order is issued, to obtain the lifting thereof as soon as practicable.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General
Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception
afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
(ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus,
as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser
or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case
may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give
the Representative notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements
and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment
or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use
any such amendment or supplement to which the Representative or counsel for the Underwriters shall reasonably object. The Company
will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits
filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representative, without
charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities
is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Blue
Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign)
as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Rule
158. The Company will timely file such reports pursuant to the 1934 Act, as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds, if any, received by it from the sale of the Securities in the manner specified
in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing.
The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the Securities)
on the Nasdaq Global Market.
(i) Restriction
on Sale of Securities. During a period of 180 days from the date of the Prospectus, the Company will not, without the prior
written consent of Xxxxxxx Xxxxx, (i) directly or indirectly, 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 any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or 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. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common
Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof
and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock
or restricted stock issued or restricted stock units or options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D)
any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in
the Registration Statement, the General Disclosure Package and the Prospectus, (E) the filing by the Company of a registration
statement with the Commission on Form S-8 in respect of any shares issued under or the grant of any award pursuant to an employee
benefit plan of the Company referred to in the Prospectus, or (F) the sale or issuance of or entry into an agreement to sell or
issue shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (i) in connection with
any mergers or acquisition of securities, businesses, property or other assets or (ii) pursuant to an employee benefit plan assumed
by the Company in connection with a merger or acquisition; provided, that the aggregate number of shares of Common Stock
or securities convertible into or exercisable for Common Stock (on an as-converted or as-exercised basis, as the case may be) that
the Company may sell or issue or agree to sell or issue pursuant to this clause (F) shall not exceed 5% of the total number of
shares of the Company’s Common Stock issued and outstanding immediately following the completion of the transactions contemplated
by this Agreement; and provided further, that each recipient of shares of Common Stock or securities convertible into or
exercisable for Common Stock pursuant to this clause (F) shall execute a lock-up agreement substantially in the form of Exhibit
B hereto. Notwithstanding the foregoing and only to the extent that the rules of the Financial Industry Regulatory Authority,
Inc. relating to such extensions (or any successor rules thereto) remain in effect, if (1) during the last 17 days of the 180-day
restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or
(2) prior to the expiration of the 180-day restricted period, the Company announces that it will issue an earnings release or becomes
aware that material news or a material event will occur during the 16-day period beginning on the last day of the 180-day restricted
period, the restrictions imposed in this clause (i) shall continue to apply until the expiration of the 18-day period beginning
on the date of the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx Xxxxx
waives, in writing, such extension.
(j) If
Xxxxxxx Xxxxx, in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up agreement described in
Section 5(i) hereof for an officer or director of the Company and provides the Company with notice of the impending release or
waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending
release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business
days before the effective date of the release or waiver.
(k) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the rules and regulations of the Commission under
the 1934 Act. Additionally, the Company shall report the use of proceeds from the issuance of the Shares as may be required under
Rule 463 under the 1933 Act.
(l) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it will
not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained
by the Company under Rule 433; provided that the Representative will be deemed to have consented to the Issuer Free Writing Prospectuses
listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i)
that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such
free writing prospectus consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,”
as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of
an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus
or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not
misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(m) Emerging
Growth Company Status. The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company
at any time prior to the later of (a) completion of the distribution of the Securities within the meaning of the 1933 Act and (b)
completion of the 180-day restricted period referred to in Section 3(i) hereof.
(n) Written
Testing-the-Waters Communication. If at any time following the distribution of any Written Testing-the-Waters Communication
there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or
would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly
notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication
to eliminate or correct such untrue statement or omission.
SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally
filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary
prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery
of the certificates or electronic book entries for the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the
fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters not in excess of $5,000 in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or registrar for the Securities,
(vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection
with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged by the Company in connection with the road show presentations, travel
and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of aircraft and
other transportation chartered in connection with the road show; provided, however, that the Underwriters and the Company
agree that the Underwriters shall pay or cause to be paid all travel and lodging expenses of the representatives and officers of
the Underwriters and fifty percent (50%) of the cost of aircraft and other transportation chartered in connection with the road
show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by FINRA of the terms of the sale of the Securities, and (ix) the fees and expenses incurred in connection with
the listing of the Securities on the Nasdaq Global Market.
(b) Termination
of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section 5, Section 9(a)(i)
or (iii), or Section 11 hereof, the Company shall reimburse the Underwriters for all of their reasonable and documented out-of-pocket
expenses, including the reasonable and documented fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions
of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained herein or in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness
of Registration Statement; Rule 430A Information. The Registration Statement, including any Rule 462(b) Registration Statement,
has become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary
prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or,
to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for
additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner
and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such
information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
(b) Opinion
of Counsel for Company. At the Closing Time, the Representative shall have received the opinion, dated the Closing Time, of
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Company, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set
forth in Exhibit A hereto.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representative shall have received the opinion, dated the Closing Time,
of Xxxxxxx Procter LLP, counsel for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters with respect to such matters as the Representative may require. In giving such
opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York,
the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of
counsel satisfactory to the Representative. Such counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its
subsidiaries and certificates of public officials.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Effect,
and the Representative shall have received a certificate of the Chief Executive Officer or the President of the Company and of
the chief financial or chief accounting officer of the Company, dated the Closing Time, to the effect that (i) there has been no
such Material Adverse Effect, (ii) the representations and warranties of the Company in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or
suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes
have been instituted or are pending or, to their knowledge, contemplated.
(e) Accountant’s
Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from KPMG LLP a letter,
dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) Bring-down
Comfort Letter. At the Closing Time, the Representative shall have received from KPMG LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section,
except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(g) Approval
of Listing. At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Global Market, subject only
to official notice of issuance.
(h) No
Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements relating to the offering of the Securities.
(i) Lock-up
Agreements. At the date of this Agreement, the Representative shall have received an agreement substantially in the form of
Exhibit B hereto signed by the persons listed on Schedule C hereto.
(j) Conditions
to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery and,
at the relevant Date of Delivery, the Representative shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion
of Counsel for Company. If requested by the Representative, the favorable opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(b) hereof.
(iii) Opinion
of Counsel for Underwriters. If requested by the Representative, the favorable opinion of Xxxxxxx Procter LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down
Comfort Letter. If requested by the Representative, a letter from KPMG LLP, in form and substance satisfactory to the Representative
and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representative pursuant
to Section 5(e) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be
a date not more than three business days prior to such Date of Delivery.
(k) Additional
Documents. At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters.
(l) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the
Representative by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and
such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections
1, 6, 7, 8, 15, 16 and 17 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined
in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included
(A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, the Prospectus (or any amendment
or supplement thereto), or any Written Testing-the-Waters Communication or (B) in any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the offering of the Stock (“Marketing Materials”),
including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the
omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus, Written Testing-the-Waters
Communication, or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including
the Rule 430A Information, the General Disclosure Package, any preliminary prospectus, any Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(b) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, the General Disclosure Package, any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected
by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (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 Securities pursuant to this Agreement 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) above but also the relative fault of the Company, on the one hand, and of the Underwriters,
on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering
of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total
underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus,
bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault
of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of
the underwriting discounts and commissions received by such Underwriter in connection with the Shares underwritten by it and distributed
to the public.
No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this
Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several
in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors, or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as
of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse
Effect, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed
with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Global Market, or (iv) if
trading generally on the NYSE Amex or the New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred
in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear
systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 15, 16 and 17 shall survive such termination
and remain in full force and effect.
SECTION 10. Default
by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”),
the Representative shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the terms herein set forth; if, however, the Representative shall not have completed such arrangements
within such 24-hour period, then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company
to sell, the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant
to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any
such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell
the relevant Option Securities, as the case may be, either the (i) Representative or (ii) the Company shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements.
As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default
by the Company. If the Company shall fail at the Closing Time or a Date of Delivery, as the case may be, to sell the number
of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of
any nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6, 7, 8, 15, 16 and 17 shall remain in full force
and effect. No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx Xxxxx at Xxx Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of Syndicate Department, with a copy to ECM Legal; notices to the Company shall be directed to
it at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Chief Financial Officer, with a copy to Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attention of Xxxxxxx X. Xxxxxx, Esq.
SECTION 13. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts
and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and
has been acting solely as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries, or its stockholders,
creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to the offering of the Securities or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company, or any of its subsidiaries on other matters) and no Underwriter
has any obligation to the Company with respect to the offering of the Securities except the obligations expressly set forth in
this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of each of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory
or tax advice with respect to the offering of the Securities and the Company has consulted its own respective legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and their respective successors and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial
by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16. 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 WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent
to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the
United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State
of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement
of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts
in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address
set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or
other proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 18. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 19. Partial
Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
SECTION 20. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement.
SECTION 21. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing is
in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with
its terms.
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Very truly yours, |
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INTERCEPT PHARMACEUTICALS, INC. |
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By: |
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Name: |
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Title: |
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX
INCORPORATED
By: |
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Name: |
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Title: Authorized Signatory |
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For itself and as Representative of the other Underwriters named
in Schedule A hereto.
SCHEDULE A
The initial public offering price per share for the Securities
shall be $[l].
The purchase price per share for the Securities to be paid by
the several Underwriters shall be $[l], being an amount equal to the initial public
offering price set forth above less $[l] per share, subject to adjustment in accordance
with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable
on the Option Securities.
Name of Underwriter |
|
Number of
Initial Securities |
|
|
|
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
|
[l] |
BMO Capital Markets Corp. |
|
[l] |
Xxxxxxx & Company, LLC |
|
[l] |
Wedbush Securities Inc. |
|
[l] |
ThinkEquity LLC |
|
[l] |
|
|
|
Total |
|
[l] |
SCHEDULE B-1
Pricing Terms
1. The
Company is selling [l] shares of Common Stock.
2. The
Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [l]
shares of Common Stock.
3. The
initial public offering price per share for the Securities shall be $[l].
SCHEDULE B-2
Free Writing Prospectuses
[SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS, IF
ANY]
SCHEDULE C
List of Persons and Entities Subject
to Lock-up
as of September 26, 2012
Adorini, Xxxxxxx
Xxxxxxxx, Xxxxxxxx
Xxxxxx, Jan
Xxxxx, Xxxxxx
Atlas Master Fund, Ltd.
Xxxxx Xxxx & Xxxxxxx Xxxxxxxx as Tenants in Common
Xxxxx Xxxx Revocable Trust
Xxxxxxx, Xxxxx
Xxxx, Xxxx
Xxxxxxx, Xxxxxx X.
Chant, Xxxxxx X.
Xxxxxxx, Xxxxx
Xxxx Xxxxxxx, X.X.X.
Xxxxx & Xxxxx Xxxxxxxx JT WROS
XxXxxxxxx, Xxxx
Xxxxxx, Xxxxxxx
Xxxxxx, Xxxxxx
Xxxxxxxx, Xxxxx
Xxxxxx, Xxxxxxxx
Xxxxxxx, Paolo
Genextra S.p.A.
Xxxx, Xxxxxx
Xxxxxxxx, Xxxxx
Xxxxxx, Xxxxx
Xxxxxxx, Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxxx, Xxxx
JAFCO Science No. 1 Investment Enterprise Partnership
Jennet Management
Johnk, Xxxxx
Xxxx, Xxxxx
Xxxxxxx, Xxxxx X.
Xxx, Xxxxxxx
Xxxxxxxxx, Xxxxxxx
Xxxxxxxxx, Xxxxxx
Xxxx Family Investments, XX
Xxxxxxxxx, Xxx
XxXxxxxxx, Xxxxx
Xxxxxx, Xxxxxxx
Xxxxx, Xxxxx
Xxx Leaf Ventures II, LP
Xxxxxx, Xxxxxxx
OrbiMed Advisors LLC
Park, Xxxxx
Xxxxxxxx, Xxxxxxx
Xxxx & Xxxx Xxxxxxxxxx JT WROS
Xxxxxxxxxxx, Xxxxxxx
Pruzanski, Xxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx
Xxxxxxx & Xxxx Xxxx JT WROS
Rock Castle Ventures, L.P.
Xxxxxx, Xxxxx
Sciacci, Xxxxx
Xxxxxx, Xxxx
Xxxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxx
Xxxxxxx, Xxxxx
Xxxxxxxxxxx, Xxxxxxxx
Xxxxxxx, Xxxxxx
Xxxxxxx, Xxxx
Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxxx X.
Xxx Xxxx, Xxxx
Xxxxxxxxx, Xxxxx
Visium Balanced Master Fund, Ltd.
Visium Long Bias Fund, LP
Visium Long Bias Offshore Fund, Ltd.
White, Xxxx
Xxxxxxxxx Investment Partners I, Ltd.
Xxxxxxxx, Xxxxxx
SCHEDULE D
Written Testing-the-Waters Communications
[SPECIFY, IF ANY]
Exhibit A
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
Exhibit B
Form of
Lock-Up Agreement
, 2012
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
as Representative of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed
Public Offering by Intercept Pharmaceuticals, Inc.
Dear Sirs:
The undersigned, a
securityholder, officer and/or director of Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) proposes to enter into an
Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering of shares
(the “Securities”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”).
In recognition of the benefit that such an offering will confer upon the undersigned as a securityholder, officer and/or director,
as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the
date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (subject to extensions as discussed
below) (as may be extended, the “Lock-Up Period”), the undersigned will not, without the prior written consent of Xxxxxxx
Xxxxx, as the representative of the several underwriters for the proposed public offering, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right
or warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”),
or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration
statement in connection therewith, under the Securities Act of 1933, as amended (the “Securities Act”), or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise. If the undersigned is an officer or director of the Company, the undersigned further
agrees that the foregoing provisions shall be equally applicable to any issuer-directed Securities the undersigned may purchase
in the offering.
If the undersigned
is an officer or director of the Company, (1) Xxxxxxx Xxxxx agrees that, at least three business days before the effective date
of any release or waiver of the foregoing restrictions in connection with a transfer of shares of the Common Stock, Xxxxxxx Xxxxx
will notify the Company of the impending release or waiver, and (2) the Company has agreed in the Underwriting Agreement to announce
the impending release or waiver by press release through a major news service at least two business days before the effective date
of the release or waiver. Any release or waiver granted by Xxxxxxx Xxxxx hereunder to any such officer or director shall only be
effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if
(i) the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed in writing
to be bound by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in
effect at the time of the transfer.
Notwithstanding the
foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent
of Xxxxxxx Xxxxx, provided that (1) Xxxxxxx Xxxxx receives a signed lock-up agreement for the balance of the Lock-Up Period from
each donee, trustee, distributee, or transferee, as the case may be (except in the case of clause (v)), (2) any such transfer shall
not involve a disposition for value (except in the case of clause (v)), (3) such transfers are not required
during the Lock-Up Period to be reported with the Securities and Exchange Commission (“SEC”) on Form 4 in accordance
with Section 16 of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and (4) the undersigned does not
otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period:
as
a bona fide gift or gifts; or
to
any immediate family member of the undersigned or any trust for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin); or
by
operation of law, including domestic relations orders; or
by
testate succession or intestate distribution; or
as
a forfeiture of shares of Common Stock or other Company securities solely to the Company in a transaction exempt from Section 16(b)
of the Exchange Act in connection with the payment of taxes due upon the exercise of options to purchase
Common Stock or vesting of other Company securities pursuant to employee benefit plans as described in the registration statement
for the proposed offering; or
as
a distribution to limited partners, members, stockholders or other securityholders of the undersigned (or their equivalents under
the jurisdiction of organization of the undersigned) or, if the undersigned is a trust, to the beneficiaries of the undersigned;
or
to
the undersigned’s affiliates or to any investment fund or other entity controlled or managed by, or under common control
or management by, the undersigned.
Furthermore, during
the Lock-Up Period, the undersigned may (a) sell shares of Common Stock of the Company purchased by
the undersigned on the open market following the public offering if and only if (i) such sales are not required during the Lock-Up
Period to be reported in any public report or filing with the SEC or otherwise and (ii) the undersigned does not otherwise voluntarily
effect any public filing or report regarding such sales during the Lock-Up Period, (b) exercise any stock options granted pursuant
to the Company’s equity incentive plans or warrants to purchase Common Stock, so long as the shares of Common Stock received
upon such exercise shall remain subject to the terms of this lock-up agreement, or (c) establish a contract, instruction
or plan (a “10b5-1 Plan”) that complies with the requirements of Rule 10b5-1(c)(1) under the Exchange Act at any time
during the Lock-Up Period (provided that, during the Lock-Up Period, (i) the undersigned shall not transfer any of the Common Stock
or other Company securities under such 10b5-1 Plan and (ii) no public announcement or disclosure of entry into such 10b5-1 Plan
is made or required to be made during the Lock-Up Period, including any filing with the SEC under
Section 16 of the Exchange Act).
Notwithstanding the
foregoing, and only to the extent that the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) relating
to such extensions (or any successor rules thereto) remain in effect, if:
(1) during
the last 17 days of the initial 180-day lock-up period, the Company issues an earnings release or material news or a material event
relating to the Company occurs; or
(2) prior
to the expiration of the initial 180-day lock-up period, the Company announces that it will release earnings results or becomes
aware that material news or a material event will occur during the 16-day period beginning on the last day of the initial 180-day
lock-up period,
the restrictions imposed by this lock-up
agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or
the occurrence of the material news or material event, as applicable, unless Xxxxxxx Xxxxx waives, in writing, such extension;
provided, however, that in the case of clause (2) above, such earnings results are so released or such material news
or material event so occurs during the 16-day period beginning on the last day of the initial 180-day lock-up period.
The undersigned agrees
that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during
the period from the date of this lock-up agreement to and including the 34th day following the expiration of the initial
180-day lock-up period, it will give notice thereof to the Company and will not consummate such transaction or take any such action
unless it has received written confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the
previous paragraph) has expired; provided, however, that this paragraph shall only apply subsequent to the initial
180-day lock-up period if and to the extent that that the rules of FINRA referred to in the preceding paragraph remain in effect.
The undersigned also
agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the Lock-Up Securities except in compliance with the foregoing restrictions.
This lock-up agreement
shall lapse and become null and void if (i) the Company notifies Xxxxxxx Xxxxx in writing prior to the execution of the Underwriting
Agreement that it does not intend to proceed with the contemplated public offering, (ii) the registration statement filed with
the SEC with respect to the contemplated public offering is withdrawn, (iii) the execution of the Underwriting Agreement has not
occurred prior to December 31, 2012, or (iv) for any reason, the Underwriting Agreement is terminated prior to the closing of the
contemplated public offering. 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.
[Remainder of Page
Intentionally Left Blank; Signature Page Follows]
Very truly yours,
If an individual, please sign here:
If a corporation, a limited partnership
or other legal entity, please sign here:
|
Legal Name: |
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By: |
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Name: |
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Title: |
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[SIGNATURE PAGE TO LOCK-UP AGREEMENT]
Exhibit C
Form
of Press Release
TO
BE ISSUED PURSUANT TO SECTION 3(j)
INTERCEPT PHARMACEUTICALS, INC.
[Date]
INTERCEPT PHARMACEUTICALS, INC. (the “Company”)
announced today that BofA Xxxxxxx Xxxxx, the lead book-running manager in the Company’s recent public sale of [l]
shares of common stock, is [waiving] [releasing] a lock-up restriction with respect to [l]
shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company. The
[waiver] [release] will take effect on , 20 , and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities
in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold
in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.