IDENIX PHARMACEUTICALS, INC. (a Delaware corporation) 6,460,672 Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit 99.1
EXECUTION VERSION
IDENIX PHARMACEUTICALS, INC.
(a Delaware corporation)
6,460,672 Shares of Common Stock
UNDERWRITING AGREEMENT
(a Delaware corporation)
6,460,672 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: April 29, 2010
IDENIX PHARMACEUTICALS, INC.
(a Delaware corporation)
6,460,672 Shares of Common Stock
(Par Value $0.001 per Share)
(a Delaware corporation)
6,460,672 Shares of Common Stock
(Par Value $0.001 per Share)
April 29, 2010
Xxxxxx Xxxxxx Partners LLC
as representative of the Underwriters
named in Schedule A hereto,
c/o Thomas Xxxxxx Partners LLC
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
as representative of the Underwriters
named in Schedule A hereto,
c/o Thomas Xxxxxx Partners LLC
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Idenix Pharmaceuticals, Inc., a Delaware corporation (the “Company”) confirms its agreement
with Xxxxxx Xxxxxx Partners LLC (“Xxxxxx Xxxxxx”) 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 Xxxxxx Xxxxxx is acting as
representative (in such capacity, the “Representative”), with respect to the issue and 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 said Schedule A. The aforesaid 6,460,672 shares of Common Stock to be purchased by the
Underwriters are hereinafter called the “Securities.” If the only firm named in Schedule A hereto
is Xxxxxx Xxxxxx, then the term “Underwriters” shall be deemed to refer solely to Xxxxxx Xxxxxx.
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 prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-153471), including the related
preliminary prospectus or prospectuses, covering the registration of the Securities under the
Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule
430B (“Rule 430B”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The
information included in such prospectus that was omitted from such registration statement at the
time it became effective but that is deemed to be part of and included in such registration
statement pursuant to Rule 430B (or Rule 430A of the 1933 Act Regulations, as applicable) is
referred to as “Rule 430B Information.” Each prospectus used in connection with the offering of the
Securities that omitted the Rule 430B Information is herein called a “preliminary prospectus.” Such
registration statement, at any given time, including all exhibits, financial schedules and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, as
amended from time to time, and the documents otherwise deemed to be a part thereof or included
therein by 1933 Act Regulations, is herein called the “Registration Statement.” Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
“Rule 462(b) Registration Statement,” and after such filing, if applicable, the term “Registration
Statement” shall include the Rule 462(b) Registration Statement. The final prospectus in the form
first furnished to the Underwriters for use in connection with the offering of the Securities,
including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement and any preliminary prospectuses that form
a part thereof, is herein called the “Prospectus.” For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
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All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case
may be.
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, as of the Applicable Time referred to in Section 1(a)(i) hereof,
and as of the Closing Time referred to in Section 2(b) hereof and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. At the time of filing it met and for
the purposes of this offering, the Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement, any Rule 462(b) Registration Statement
or any post-effective amendment thereto has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendments thereto became effective, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and, as amended, as
applicable, will comply in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and, as amended, as applicable, will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was issued and at the
Closing Time, included or, as amended or supplemented, as applicable, will include an untrue
statement of a material fact or omitted or, as amended or supplemented, as applicable, will omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the Statutory
Prospectus (as defined below) and the Prospectus (collectively, the “General Disclosure Package”),
nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with
the General Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:45 AM (Eastern time) on April 29, 2010 or such other time as agreed
upon in writing by the Company and Xxxxxx Xxxxxx.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is required
to be filed with the Commission by the Company, (ii) is a “road show for an offering that is a
written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed
with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Securities or of the offering that does not reflect the final terms,
in each case in the form filed or required to be filed with the Commission or, if not required to
be filed, in the form required to be retained in the Company’s records pursuant to Rule 433(g).
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“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), as evidenced by its being specified in Schedule D hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities that is
included in the Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any preliminary or other prospectus deemed to be a part
thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Securities or until any earlier date that the
issuer notified or notifies Xxxxxx Xxxxxx as described in Section 3(e), did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by
reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not
been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or
any amendment or supplement to the foregoing, made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxx Xxxxxx expressly for use
therein.
Each preliminary prospectus (including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto) complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
At the time of filing the Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendments thereto and at the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations.
(ii) Incorporated Documents. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied and will comply in all material
respect with the requirements of the 1934 Act, and the rules and regulations of the Commission
under the 1934 Act (the “1934 Regulations”).
(iii) Independent Accountants. The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company at the dates indicated and the
statement of operations, stockholders’ equity and cash flows of the Company for the periods
specified; said financial statements, together with the related schedules and notes, have been
prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved, except as stated therein. The supporting
schedules to such financial statements included or incorporated by reference in the Registration
Statement, if any, present fairly in accordance with GAAP the information required to be stated
therein. The selected financial data included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, except as otherwise stated
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therein, (A) there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries, taken as a whole, 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 its
subsidiaries other than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries, taken as a whole, 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.
(vi) Good Standing of the Company. Each of the Company and its significant
subsidiaries (as defined in Rule 1-02 of Regulation S-X) has been duly organized and is validly
existing as a corporation or other valid legal entity in good standing under the laws of the
jurisdiction in which it is chartered and organized and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company and each of its
significant subsidiaries is duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not reasonably be expected to result in a Material Adverse
Effect.
(vii) Subsidiaries. The subsidiaries set forth in Exhibit 21.1 of the Company’s
Annual Report on Form 10-K for the year ended December 31, 2009, as filed with the Commission on
March 9, 2010 (the “10-K”), which is incorporated by reference in the Prospectus, are the only
subsidiaries of the Company, and all of the issued shares of capital stock of such subsidiaries
have been duly authorized and validly issued and are fully paid and non-assessable and (except for
directors’ qualifying shares) are owned by the Company, either directly or indirectly, free and
clear of any liens, encumbrances, equities or claims.
(viii) Capitalization. The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus, except for subsequent issuances, if any, pursuant to
this Agreement, or the employee, director and/or consultant compensation, benefit or stock plans
described in the Prospectus or pursuant to the exercise, conversion or exchange of convertible or
exchangeable securities or options or rights referred to in the Prospectus. All of the shares of
issued and outstanding capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares of capital stock was issued
in violation of the preemptive or other similar rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(x) 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; the Common Stock conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same; no holder of the Securities will be subject to personal
liability by reason of being such a holder; and the issuance of the Securities is not subject to
the preemptive or other similar rights of any securityholder of the Company that have not been
validly waived.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any of its
significant subsidiaries is (i) in violation of its charter or by-laws or (ii) 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
may be bound, or to which any of the property or assets of the Company or any of its subsidiaries
is subject (collectively, “Agreements and Instruments”), except for such defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated herein
(including the issuance and sale of the Securities) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate action of the Company
and do not and will not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to,
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the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that would not reasonably be expected to result in a
Material Adverse Effect), nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or, except as would not reasonably be expected to result in a
Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its assets, properties or operations. As used herein, a
“Repayment Event” means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company.
(xii) Related Parties. No relationship, direct or indirect, exists between or among
the Company, on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company, on the other hand, which is required to be described in the Registration Statement and
the Prospectus and which is not so described. There are no outstanding loans, advance or
guarantees of indebtedness by the Company to or for the benefit of any of the executive offers or
directors of the Company, except as disclosed in the Registration Statement and the Prospectus.
(xiii) Fair Summaries. The statements set forth (i) in the Prospectus under the
captions “Description of Common Stock” and “Underwriting,” (ii) in the Company’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2009, as filed with the Commission on March 9,
2010, which is incorporated by reference in the Prospectus, under the captions “Business —
Collaborations” through and including “Business — Cooperative Laboratory Agreements — University
of Cagliari”, “Business — Patents and Licenses,” “Risk Factors — Factors Related to Our
Relationship with Novartis”, “Risk Factors — Factors Related to Patents and Licenses” and “Risk
Factors — Factors Related to Our Dependence on Third Parties — Our license agreement with GSK is
important to our business. The royalties and other payments we receive under our licensing
arrangement with GSK could be delayed, reduced or terminated if GSK terminates or fails to perform
its obligations under its agreement with us or if GSK is unsuccessful in its sales efforts”, and
(iii) in the Company’s Proxy Statement, as filed with the Commission on April 28, 2009, portions of
which are incorporated by reference in the Prospectus, under the captions “Compensation Discussion
and Analysis” and “Certain Relationships, Related Transactions and Director Independence”, insofar
as they purport to describe the documents referred to therein, are accurate, complete and fair in
all material respects.
(xiv) 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 its
subsidiaries’ principal suppliers, manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or
any of its subsidiaries, which is required to be disclosed in the Registration Statement and is not
disclosed therein, or, other than as disclosed therein, which would reasonably be expected to
result in a Material Adverse Effect, or which would materially and adversely affect the properties
or assets of the Company and its subsidiaries, taken as a whole, or the consummation of the
transactions contemplated in this Agreement or the performance by the Company of its obligations
hereunder; the aggregate of all pending legal or governmental proceedings to which the Company and
its subsidiaries is a party or of which any of its property or assets is the subject which are not
described in the Registration Statement, the General Disclosure Package or the Prospectus,
including ordinary routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus or to be filed as exhibits thereto
which have not been so described and filed as required.
(xvii) Intellectual Property.
| (A) | The Company and its subsidiaries own, possess, license or have other rights under the patents and patent applications, copyrights, trademarks, service marks, trade names, technology and know- |
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| how (including trade secrets and other unpatented and/or unpatentable proprietary rights) necessary, or used, in any material respect, for the conduct of their business in the manner in which it is being conducted and in the manner in which it is intended to be conducted as set forth in the Prospectus and reasonably necessary in connection with the commercialization of product candidates (the “Product Candidates”) described in the Prospectus as being under development (collectively, the “Company Intellectual Property”). |
| (B) | To the Company’s and its subsidiaries’ knowledge, (I) none of the claims of patents owned or licensed by the Company or any of its subsidiaries and constituting Company Intellectual Property are unenforceable or invalid, and (II) none of the claims of patent applications owned or licensed by Company or any of its subsidiaries and constituting Company Intellectual Property specifically covering Product Candidates or their use would be unenforceable or invalid if issued as patents, in each case except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity. | ||
| (C) | The Company and its subsidiaries own or possess valid licenses or other rights under the patents and patent applications set forth in the patent schedule provided by the Company to you on the date hereof (the “Patent Schedule”), which Patent Schedule lists all such patents and patent applications necessary for, or used in, any material respect to conduct the business of the Company and its subsidiaries in the manner in which it is being conducted and in the manner intended to be conducted as described in the Prospectus and necessary in connection with the development and commercialization of Product Candidates described in the Prospectus as being under development by the Company. | ||
| (D) | Neither the Company nor any of its subsidiaries is obligated to pay a material royalty, grant a license, or provide other material consideration to any third party in connection with the Company Intellectual Property other than as disclosed in the Prospectus. | ||
| (E) | Neither the Company nor any of its subsidiaries has received any written notice of infringement with respect to the Company Intellectual Property other than as disclosed in the Prospectus or as would not reasonably be expected to have a Material Adverse Effect; except as disclosed in the Prospectus, there are no pending or, to the knowledge of the Company, threatened actions, suits, proceedings or claims by others against the Company or any of its subsidiaries claiming that the Company or any of its subsidiaries is infringing any patent, trade secret, trade xxxx, service xxxx, copyright or other proprietary right, information or materials. | ||
| (F) | The discoveries, inventions, products or processes of the Company and its subsidiaries referred to in the Prospectus do not, to the knowledge of the Company and any of its subsidiaries, infringe or interfere with any right or patent of any third party, or any discovery, invention, product or process that is the subject of a patent application filed by any third party, which could reasonably be expected to have a Material Adverse Effect. | ||
| (G) | Except as described in the Prospectus, neither the Company nor any of its subsidiaries has received any notice of any inventorship challenges with respect to the patents and patent applications within Company Intellectual Property nor has any interference, conflict, opposition, declaratory action or nullity proceeding been declared or provoked with respect to such patents and patent applications. | ||
| (H) | Except as disclosed in the Prospectus with respect to Novartis and GSK with respect to the IDX899 Product Candidate, no third party, including any academic or governmental organization, possesses rights to the Company Intellectual Property which, if exercised, could enable such party to develop products competitive to the Product Candidates or could reasonably be expected to have a Material Adverse Effect. | ||
| (I) | The Company and its subsidiaries and, to the Company’s and its subsidiaries’ knowledge, their respective licensors are not in breach of, and have complied with all terms of, any license or other |
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| agreement relating to Company Intellectual Property, except for such breaches or non-compliance that could not reasonably be expected to have a Material Adverse Effect. | |||
| (J) | There are no contracts or other documents material to the Company Intellectual Property other than those described in the Prospectus. Neither the Company nor any of its subsidiaries is aware that any of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would conflict with the Company’s or its subsidiaries’ business. | ||
| (K) | None of the execution or delivery of this Agreement, or the carrying on of the Company’s and its subsidiaries’ business by the employees of the Company and its subsidiaries, will, to the Company’s and its subsidiaries’ knowledge, conflict with or result in a breach of terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated. | ||
| (L) | To the Company’s and its subsidiaries’ knowledge, the U.S. government does not have any right in any Company Intellectual Property. | ||
| (M) | To the Company’s and its subsidiaries’ knowledge, it is not and will not be necessary to use any inventions, trade secrets or proprietary information or materials of any of its consultants, or its employees (or persons it currently intends to hire) made prior to their employment or engagement by the Company or its subsidiaries except for those inventions and proprietary information licensed to the Company or its subsidiaries. | ||
| (N) | The Company and its subsidiaries have complied with the required duty of candor and good faith in dealing with the United States Patent and Trademark Office (the “PTO”), including the duty to disclose to the PTO all information believed to be material to the patentability of the Company’s patents and pending U.S. patent applications within the Company Intellectual Property. | ||
| (O) | The Company, CNRS, L’Universite Montpellier II (“UMII”) and Universita Degli Studi di Cagliari (“UDSC”) are identified or will be identified, as applicable, in the records of the PTO as the holders of record to the U.S. patents and patent applications as set forth in the Patent Schedule. | ||
| (P) | To the knowledge of the Company, except as described in the Prospectus, no other entity or individual (i.e., other than the Company, CNRS, UMII and UDSC) has any rights, title or interest in the patents or patent applications set forth in the Patent Schedule or any trademarks, copyrights or other intellectual property rights of the Company. | ||
| (Q) | The Company, CNRS, UMII and UDSC are similarly listed or will be listed in the records of corresponding foreign agencies with respect to the foreign counterparts of the foregoing set forth in the Patent Schedule. | ||
| (R) | There are no legal or governmental proceedings pending relating to patents, trade secrets, trade marks, service marks, copyrights or other proprietary information or materials constituting Company Intellectual Property, other than PTO or foreign patent office review of pending applications for patents and trademarks, and no such proceedings are contemplated or, to the knowledge of the Company, threatened by governmental authorities or others. | ||
| (S) | The Company and its subsidiaries have diligently prosecuted, and are diligently prosecuting, claims in the patent applications within the Company Intellectual Property, which contain claims covering products of the Company and Product Candidates or their method of use. |
(xviii) Contracts. Each of (i) the Cooperative Antiviral Research Activity Agreement,
dated January 4, 1999, between Idenix France and UDSC, as amended by the Letter Agreement, dated
April 14, 2002, by and
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between Idenix France and UDSC, and by the Letter Agreement, dated May 8, 2003, by
and among the Company, Idenix France, Novartis and UDSC, and by the Agreement, dated June 30, 2004,
by and between the Company and UDSC (the “UDSC Cooperative Agreement”), (ii) the License Agreement,
dated December 14, 2000, between the Company and UDSC, as amended by the Letter Agreement, dated
April 14, 2002, by and between Idenix France and UDSC, by the Letter Agreement, dated May 8, 2003,
by and among the Company, Idenix France, Novartis and UDSC, and by the Agreement, dated June 30,
2004, by and between the Company and UDSC (the “UDSC License Agreement”), (iii) the Development,
License and Commercialization Agreement, dated as of May 8, 2003, by and among the Company, Idenix
Cayman and Novartis as amended on April 30, 2004, December 21, 2004, February 27, 2006, September
28, 2007 and January 28, 2009 and (iv) the License Agreement, dated as of February 4, 2009, by and
among the Company and SmithKline Xxxxxxx Corporation, doing business as GlaxoSmithKline (“GSK”),
whereby the Company granted GSK an exclusive license to develop, manufacture and commercialize
certain non-nucleoside reverse transcriptase inhibitor compounds claimed in certain patents and
patent applications owned or controlled by the Company, including the compound developed by the
Company known as IDX899, for the treatment and prophylaxis of human diseases and conditions on a
worldwide basis, is a valid and binding obligation of the parties thereto and enforceable against
such parties in accordance with its terms, except as enforceability may be limited by bankruptcy
and other similar laws affecting the rights of creditors generally and general principles of
equity.
(xix) University of Cagliari. Under the Research Agreement and License Agreement with
the University of Cagliari, as amended in 2002, 2003, 2004, 2005 and 2006, the Company has the
right to take any and all actions which are necessary to enforce or defend Company Intellectual
Property rights that are co-owned with and/or licensed from the University of Cagliari under such
agreements, and the Company has the right to join the University of Cagliari as a party plaintiff
in any such action. The University of Cagliari has agreed to cooperate, assist and participate,
including without limitation as a party plaintiff, in enforcing or defending the Company
Intellectual Property rights that are co-owned with and/or licensed from the University of Cagliari
under such agreements.
(xx) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act, the 1933 Act Regulations, state securities laws
or the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) or The Nasdaq
Stock Market.
(xxi) Absence of Manipulation. Neither the Company nor, to the knowledge of the
Company, any affiliate of the Company has taken, nor will the Company or any affiliate take,
directly or indirectly, any action which is designed to or which has constituted or which would be
expected to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xxii) Possession of Licenses and Permits. The Company and its subsidiaries possesses
such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business of the Company and its subsidiaries as described in the
Prospectus, including without limitation, all such registrations, approvals, certificates,
authorizations and permits required by the United States Food and Drug Administration (the “FDA”),
the United States Drug Enforcement Administration, and/or other federal, state, local or foreign
agencies or bodies engaged in the regulation of clinical trials, pharmaceuticals, biologics or
biohazardous substances or materials, except where the failure so to possess would not, singly or
in the aggregate, reasonably be expected to result in a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, reasonably be expected
to 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,
reasonably be expected to result in a Material Adverse Effect; and neither the Company nor any of
its subsidiaries has received any notice of proceedings (nor, to the Company’s and its
subsidiaries’ knowledge, are any proceedings threatened against the Company or any of its
subsidiaries) relating to the revocation or modification of any such Governmental Licenses
- 8 -
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material Adverse Effect. Where required by
applicable laws and regulations of the FDA, the Company and its subsidiaries have submitted to the
FDA an Investigational New Drug Application or amendment or supplement thereto for each clinical
trial it has conducted or sponsored or is conducting or sponsoring, except where such failure would
not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; all such
submissions were in material compliance with applicable laws and rules and regulations when
submitted and no material deficiencies have been asserted by the FDA with respect to any such
submissions, except any deficiencies which could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xxiii) Tests and Preclinical and Clinical Studies. The Company and its subsidiaries have
operated and currently are in compliance with the United States Federal Food, Drug, and Cosmetic
Act, all applicable rules and regulations of the FDA and other federal, state, local and foreign
governmental bodies exercising comparable authority, except where the failure to so operate or be
in compliance would not reasonably be expected to have a Material Adverse Effect. The clinical
studies conducted by or, to the Company’s knowledge, on behalf of the Company or its subsidiaries
that are described in the Registration Statement and the Prospectus were, and, if still pending,
are being, conducted in all material respects in accordance with the protocols submitted to the FDA
and all applicable laws and regulations; the preclinical studies conducted by or, to the Company’s
knowledge, on behalf of the Company or its subsidiaries that are described in the Registration
Statement and the Prospectus were, and, if still pending, are being, conducted in all material
respects in accordance with experimental protocols, procedures and controls pursuant to, where
applicable, accepted professional and scientific standards for products or product candidates
comparable to those being developed by the Company and its subsidiaries; the descriptions of the
tests and preclinical and clinical studies, and results thereof, conducted by or, to the Company’s
knowledge, on behalf of the Company or its subsidiaries contained in the Registration Statement and
the Prospectus are accurate and complete in all material respects; the Company is not aware of any
other trials or studies, the results of which reasonably call into question the results described
or referred to in the Registration Statement and the Prospectus; neither the Company nor any of its
subsidiaries are in receipt of any notices or correspondence from the FDA or any foreign, state or
local governmental body exercising comparable authority that reasonably call into question the
results of the trials or studies described or referred to in the Registration Statement and the
Prospectus; and neither the Company nor any of its subsidiaries have received any notice or
correspondence from the FDA or any foreign, state or local governmental body exercising comparable
authority requiring the termination, suspension, or clinical hold of any tests or preclinical or
clinical studies with respect to product candidates currently under development, or such notice or
correspondence from any Institutional Review Board or comparable authority requiring the
termination or suspension of a clinical study, conducted by or on behalf of the Company, which
termination, suspension, or clinical hold would reasonably be expected to have a Material Adverse
Effect.
(xxiv) Title to Property. Each of the Company and its subsidiaries has good and
marketable title to all real property owned by it and good title to all other properties owned by
it that are material to the Company and its subsidiaries, taken as a whole, 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 Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not materially interfere with the
use made and proposed to be made of such property by the Company or its subsidiaries; and all of
the leases and subleases material to the business of the Company and its subsidiaries, taken as a
whole, and under which the Company or its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and, except as described in the Prospectus or as would
not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect,
neither the Company nor its subsidiaries has notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or its subsidiaries under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the Company or its
subsidiaries to the continued possession of the leased or subleased premises under any such lease
or sublease.
(xxv) 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 Prospectus will not be required, to register as an “investment company” under the
Investment Company Act of 1940, as amended (the “1940 Act”).
(xxvi) Environmental Laws. Except as described in the Prospectus and except as would
not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A)
neither the Company not its
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subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface-strata) or
wildlife, including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company
and its subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws to conduct their business as described in the Prospectus and are 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 that would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxvii) Registration Rights. There are no persons with rights to have any securities
registered pursuant to the Registration Statement, which rights have not been waived or complied
with, nor, except as specifically set forth in the Prospectus, are there any persons with rights to
have any securities otherwise registered by the Company under the 1933 Act.
(xxviii) Accounting Controls and Disclosure Controls.
| (A) | The Company maintains 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 Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. | ||
| (B) | The Company employs disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and the principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure. |
(xxix) Compliance with the Xxxxxxxx-Xxxxx Act. The Company is 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”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(xxx) FINRA Matters. Neither the Company nor, to the Company’s knowledge, the
Company’s officers, directors or any of its affiliates (within the meaning of FINRA Conduct Rule
2720(b)(1)(a)), directly or indirectly controls, is controlled by, or is under common control with,
or is an associated person (within the meaning of Article I, Section 1(rr) of the By-laws of FINRA)
of, any member firm of FINRA.
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(xxxi) 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. The United States federal income tax returns of the Company through the fiscal year
ended December 31, 2005 have been settled and no assessment in connection therewith has been made
against the Company. The Company has filed all other tax returns that are required to have been
filed by it pursuant to applicable foreign, state, local or other law except insofar as the failure
to file such returns would not reasonably be expected to result in a Material Adverse Effect, and
has paid all taxes due pursuant to such returns or pursuant to any assessment received by the
Company, except for such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. The charges, accruals and reserves on the books of the
Company in respect of any income and corporation tax liability for any years not finally determined
are adequate to meet any assessments or re-assessments for additional income tax for any years not
finally determined, except to the extent of any inadequacy that would not reasonably be expected to
result in a Material Adverse Effect.
(xxxii) Insurance. The Company and each of its significant subsidiaries carries or is
entitled to the benefits of insurance, with financially sound and reputable insurers, in such
amounts and covering such risks as is generally maintained by companies of established repute
engaged in the same or similar business and at the same or a similar stage of development, and all
such insurance is in full force and effect. The Company has no reason to believe that it and its
significant 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 the Company nor any of its significant subsidiaries
has been denied any insurance coverage which it has sought or for which it has applied.
(xxxiii) Statistical and Market-Related Data. Any statistical and market-related data
included in the Registration Statement and the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate, and, to the extent required by such sources, the
Company has obtained the written consent to the use of such data from such sources.
(xxxiv) Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the
Company is aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any “foreign official” (as such term
is defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA and the Company, except in each case as
would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA, except as would not reasonably be expected to have a Material Adverse
Effect, and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(xxxv) No Brokerage Fees. Except as contemplated by this Agreement and as disclosed
in the Registration Statement and the Prospectus, no person is entitled to receive from the Company
a brokerage commission, finder’s fee or other like payment in connection with the transactions
contemplated herein.
(xxxvi) Money Laundering Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance 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 agency (collectively, the “Money Laundering Laws”), except in each case as would
not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, and no
action, suit or proceeding by or before any court or governmental agency, authority or body
- 11 -
or any arbitrator involving the Company or its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxxvii) OFAC. Neither the Company nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or person acting on behalf of the Company is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company 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) 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 B, the number of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any additional number of
Securities which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP at 00 Xxxxx
Xxxxxx, Xxxxxx, XX 00000, or at such other place as shall be agreed upon by the Representative and
the Company, at 10:00 A.M. (Eastern time) on the fourth (third, if the pricing occurs before 4:30
P.M. (Eastern 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”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Securities that it has
agreed to purchase. Subject to Section 10, Xxxxxx Xxxxxx, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with the Depository Trust Company (“DTC”) or its
designated custodian. On the date and at the time specified in paragraph (b) above, the Company
will deliver the Securities to Xxxxxx Xxxxxx Partners LLC, for the account of each Underwriter,
against payment by or on behalf of each such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Company to Xxxxxx Xxxxxx
Partners LLC by causing DTC to credit the Securities to the account of Xxxxxx Xxxxxx Partners LLC
at DTC.
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 430B, and will notify the Representative
immediately, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the Prospectus or any amended
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
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Statement or any amendment or supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary prospectus, or 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(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 effect the 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 and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments and Exchange Act Documents. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration Statement (including
any filing under Rule 462(b)) or any amendment, supplement or revision to either any preliminary
prospectus (including any prospectus included in the Registration Statement at the time it became
effective) or to the Prospectus, and will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representative or counsel for the Underwriters
shall object. The Company has given the Representative notice of any filings made pursuant to the
1934 Act or the 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will
give the Representative notice of its intention to make any such filing from the Applicable Time to
the Closing Time and will furnish the Representative with copies of any such documents a reasonable
amount of time prior to such proposed filing, as the case may be, and will not file or use any such
document to which the Representative or counsel for the Underwriters shall reasonably object.
(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 of 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 of 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 the Prospectus is
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) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and
the 1933 Act Regulations and the 1934 Act and 1934 Act Regulations so as to permit the completion
of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If
at any time when a prospectus is 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 amend the
Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statements 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 if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or
- 13 -
supplement as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request. 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 relating to the Securities 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, prevailing at that subsequent time, not misleading, the
Company will promptly notify Xxxxxx Xxxxxx 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.
(f) Blue Sky Qualifications. The Company will use its 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 for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b) Registration Statement;
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.
(g) 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.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Listing. The Company will use its reasonable best efforts to effect and maintain the
quotation of the Securities on the Nasdaq Global Market.
(j) Restriction on Sale of Securities. During a period of 60 days from the date of the
Prospectus (the “Lock Up Period”), the Company will not, without the prior written consent of
Xxxxxx Xxxxxx, (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 share 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) the issuance by the Company of any shares of Common Stock upon the exercise
of an option or warrant or the conversion of a security outstanding on the date hereof and referred
to in the Prospectus; (C) the issuance by the Company of any shares of Common Stock, or options to
purchase Common Stock, to employees, directors and/or consultants of the Company pursuant to the
employee benefit and stock plans described in the Prospectus, (D) the issuance by the Company
pursuant to the Amended and Restated Stockholders’ Agreement, dated as of July 23, 2004, with
Novartis Pharma AG (“Novartis”), except to the extent Novartis has waived its rights to such
issuances, including pursuant to the S-3 Financing Waiver and Consent between the Company and
Novartis, dated as of May 19, 2009 with regards to the issuance of the Securities or (E) the
issuance of up to an aggregate of 3,000,000 shares of Common Stock in connection with any strategic
transaction that includes a commercial relationship (including joint ventures, marketing or
distribution arrangements, collaboration agreements or intellectual property license agreements) or
any acquisition of assets or not less than a majority or controlling portion of the equity of
another entity, provided that any such shares of Common Stock and securities issued pursuant to
this clause (E) during the 60-day restricted period described above shall be subject to the
restrictions described above for the remained of such restricted period; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or
announces material news or a material event or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during the 16-day period
following the last day of the Lock-Up Period, then in each case the Lock-Up Period will be
- 14 -
automatically extended until the expiration of the 18-day period beginning on the date of
release of the earnings results or the announcement of the material news or material event, as
applicable, unless Xxxxxx Xxxxxx waives, in writing, such extension.
(k) Reporting Requirements. The Company, during the period when the Prospectus is 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 thereunder.
(l) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Representative, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representative, it has not made and will
not make any offer relating to the Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Representative or by the Company and the Representative, as
the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus
as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping.
(m) Trademarks. The Company will, upon request of any Underwriter, furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and
corporate logo for us on the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Securities (the “License”); provided, however, that the
License shall be used solely for the purpose described above, is granted without any fee and may
not be assigned or transfered.
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 of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates 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(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of a Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Permitted Free Writing Prospectus and of 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, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) 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 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, (x) 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, (xi) the fees and expenses incurred in connection with the listing of the Securities in
the Nasdaq Global Market, and (xii) the costs and expenses (including without limitation any
damages or other amounts payable in connection with legal or contractual liability) associated with
the reforming of any contracts for sale of the Securities made by the Underwriter caused by a
breach of the representation contained in the third paragraph of Section 1(a)(i). It is understood
that, subject to this section and Section 4(b) hereof, the Underwriters will pay all of their costs
and expenses, including fees and disbursements of their counsel.
- 15 -
(b) Termination of Agreement. If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their accountable out-of-pocket expenses, including the reasonable 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 in Section 1 hereof or in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder that are required to be performed or satisfied by it at or prior to the
Closing Time, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of counsel to the Underwriters. A prospectus containing the Rule 430B 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 and declared effective in accordance with the requirements of Rule 430B.
(b) Opinion of Counsel for the Company. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx
LLP, counsel for the Company, in form and substance reasonably 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 in-house Counsel. At Closing Time, the Representative shall have received the
favorable opinion, dated as of Closing Time, of Xxxx Xxxxxxxxxxx, Executive Vice President, General
Counsel and Secretary of the Company, in form and substance reasonably 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 A1 hereto.
(d) Opinion of Intellectual Property Counsel. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Xxxxx Day, intellectual property
counsel for the Company, in form and substance reasonably 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 A2 hereto.
(e) Opinion of Counsel for Underwriters. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Ropes & Xxxx 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 reasonably request.
(f) Officers’ Certificate. At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Prospectus or the General
Disclosure Package, any Material Adverse Effect, and the Representative shall have received a
certificate of the President or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that (i) there has been
no such Material Adverse Effect, (ii) the representations and warranties in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made at and as of 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 Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or, to their knowledge, contemplated by the Commission.
(g) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Representative shall have received from PricewaterhouseCoopers LLP a letter dated such date, in
form and substance satisfactory to the Representative and PricewaterhouseCoopers LLP, 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’
- 16 -
“comfort letters” to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representative shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been approved for
inclusion in the Nasdaq Global Market, subject only to official notice of issuance.
(j) Lock-up Agreements. At the date of this Agreement, the Representative shall have received
a lock-up agreement substantially in the form of Exhibit B hereto signed by the persons listed on
Schedule C hereto.
(k) No Objection. FINRA shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(l) Additional Documents. At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may 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 satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Company at any time at or prior to Closing Time 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 and 8 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 430B Information, or the
omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary prospectus, any Issuer Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxx Xxxxxx), 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
- 17 -
claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxx Xxxxxx expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430B Information, or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto).
(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 Section 6(a) above, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
of material fact, made in the Registration Statement (or any amendment thereto), including the Rule
430B Information, or any preliminary prospectus, any Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxx Xxxxxx expressly for use
therein.
(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
Xxxxxx Xxxxxx 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 and, to the extent it shall elect, jointly with
any other indemnifying party, assume the defense thereof, with counsel reasonably satisfactory to
such indemnified parties; 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; provided,
however, that after notice from the indemnifying party to an indemnified party that the
indemnifying party has elected to assume the defense of any action, the indemnifying party shall
not be liable to such indemnified party for any legal fees or expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. 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.
- 18 -
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 and the
total underwriting discount received by the Underwriters, 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 amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any
person controlling any Underwriter, its officers or directors, or any person controlling the
Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
- 19 -
(a) Termination; General. The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
or General Disclosure Package, any Material Adverse Effect, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the Nasdaq Global Market, or if trading
generally on the American Stock Exchange 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 such system
or by order of the Commission, FINRA or any other governmental authority, or (iv) a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States, or (v) if a banking moratorium has been declared by either Federal or New York
authorities.
(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 and 8 shall survive such termination and remain in full
force and effect.
(c) Termination of Lock-Up Agreements and Non-distribution Agreements. In the event this
Agreement is terminated for any reason, the Representative shall contemporaneously terminate or
waive in their entirety the agreements referred to in Section 5(j).
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time 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 36 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 36-hour period, then:
(i) if the number of Defaulted Securities does not exceed one-eleventh 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 one-eleventh of the number of Securities to
be purchased on such date, this Agreement 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
either the (i) Representative or (ii) the Company shall have the right to postpone Closing Time for
a period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax structure”
includes any fact that may be
- 20 -
relevant to understanding the purported or claimed federal income tax treatment of the
transactions contemplated hereby.
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 the Representative at Xxx
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, attention: General Counsel with a copy to
Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000, attention of Xxxxxxx X’Xxxxx, Esq.;
notices to the Company shall be directed to it at Idenix Pharmaceuticals, Inc., 00 Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, attention of President and Chief Executive Officer, with a copy to
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, attention of Xxxxx
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 public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company or its respective stockholders,
creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company, and (e) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own respective legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties. This Agreement shall 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. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. 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 17. 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 18. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
- 21 -
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
Very truly yours, IDENIX PHARMACEUTICALS, INC. |
||||
| By | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||
| Title: | CFO | |||
| CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXX XXXXXX PARTNERS LLC |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
For itself and as Representative of the other Underwriters named in Schedule A hereto.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with
its terms.
| Very truly yours, IDENIX PHARMACEUTICALS, INC. |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
| CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXX XXXXXX PARTNERS LLC |
||||
| By | /s/ Xxxxxxx XxXxxx | |||
| Name: | Xxxxxxx XxXxxx | |||
| Title: | Senior Managing Director | |||
For itself and as Representative of the other Underwriters named in Schedule A hereto.
SCHEDULE A
| Name of Underwriter | Number of Securities | |||
Xxxxxx Xxxxxx Partners LLC |
2,584,270 | |||
Leerink Xxxxx LLC |
1,938,201 | |||
Xxxxxxx Xxxxx & Company, L.L.C. |
1,938,201 | |||
Total. |
6,460,672 | |||
SCHEDULE B
IDENIX PHARMACEUTICALS, INC.
6,460,672 Shares of Common Stock
IDENIX PHARMACEUTICALS, INC.
6,460,672 Shares of Common Stock
(Par Value $0.001 Per Share)
1. The number of Securities offered to the public shall be 6,460,672 and the offering price per
share to the public for the Securities shall be $4.35.
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be
$4.089, being an amount equal to the public offering price set forth above less $0.261 per share.
SCHEDULE C
LIST OF PERSONS SUBJECT TO LOCK-UP
LIST OF PERSONS SUBJECT TO LOCK-UP
Xxxx-Xxxxxx Sommadossi
Xxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, M.D.
Xxxx X. Xxxxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxx, Ph.D.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx, Ph.D.
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx-Xxxxxx, Ph.D.
Xxxxxx Xxxxxx, Ph.D.
Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, M.D.
Xxxx X. Xxxxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxx, Ph.D.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx, Ph.D.
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx-Xxxxxx, Ph.D.
Xxxxxx Xxxxxx, Ph.D.
Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxxx
SCHEDULE D
None
EXHIBIT A
FORM OF OPINION OF COMPANY COUNSEL
EXHIBIT A1
FORM OF OPINION OF IN-HOUSE COUNSEL
EXHIBIT A2
FORM OF OPINION OF INTELLECTUAL PROPERTY COUNSEL
EXHIBIT B
FORM OF LOCK-UP AGREEMENT
[ ], 2010
Xxxxxx Xxxxxx Partners LLC
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxx Partners LLC (“Xxxxxx Xxxxxx”) proposes to
enter into an Agreement (the “Agreement”) with Idenix Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), providing for an offering of shares of the common stock, $0.001 par value per
share, of the Company (the “Common Stock”) registered under the Securities Act of 1933, as amended
(the “Offering”).
To induce Xxxxxx Xxxxxx to continue its efforts in connection with the Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx, it will not,
during the period commencing on the date hereof and ending 60 days after the date of the final
prospectus supplement relating to the Offering (the “Prospectus”), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) transactions relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Offering, provided that no filing under Section 16(a) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be
voluntarily made in connection with subsequent sales of Common Stock or other securities acquired
in such open market transactions, (b) transfers of shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock as a bona fide gift, (c) transfers
of shares of Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock to the immediate family of the undersigned, to a trust the beneficiaries of which are
exclusively the undersigned and/or a member or members of the immediate family of the undersigned
or to any corporation, partnership, limited liability company or other entity all of the beneficial
ownership interests of which are held exclusively by the undersigned and/or a member or members of
the immediate family of the undersigned, (d) transfers of shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock upon death by will or intestate
succession, (e) the exercise of any option to purchase shares of Common Stock, provided that the
underlying Common Stock continues to be subject to the restrictions set forth above, (f)
transactions pursuant to any trading plan established pursuant to Rule 10b5-1 of the Exchange Act
that has been entered into by the undersigned prior to the date of this agreement, or (g) the entry
into any trading plan established pursuant to Rule 10b5-1 of the Exchange Act, provided that no
sales or other dispositions may occur under such plan until the expiration of the restricted period
referred to in the foregoing sentence; provided further that in the case of any transfer or
distribution pursuant to clause (b), (c) or (d), (i) each donee or distributee shall sign and
deliver a lock-up letter substantially in the form of this letter and (ii) no filing under Section
16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock,
shall be required or shall be voluntarily made during the restricted period referred to in the
foregoing sentence. In addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxx, it will not, during the period commencing on the date hereof and ending 60 days
after the date of the Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock. 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
undersigned’s shares of Common Stock except in compliance with the foregoing restrictions. For the
purposes of this paragraph,
“immediate family” shall mean spouse, domestic partner, lineal descendant (including adopted
children), father, mother, brother or sister of the transferor.
If:
(1) during the last 17 days of the 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 restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period,
the restrictions imposed by this 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.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written confirmation from the Company or Xxxxxx Xxxxxx that
the restrictions imposed by this agreement have expired.
The undersigned understands that the Company and Xxxxxx Xxxxxx are relying upon this agreement
in proceeding toward consummation of the Offering. The undersigned further understands that this
agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives,
successors and assigns.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Agreement, the terms of which are subject
to negotiation between the Company and Xxxxxx Xxxxxx.
If (1) either the Company, on the one hand, or Xxxxxx Xxxxxx, on the other hand, notifies the
other in writing that it does not intend to proceed with the Offering, (2) the registration
statement or Prospectus filed with the Securities and Exchange Commission with respect to the
Offering is withdrawn, (3) for any reason the Agreement shall be terminated prior to the closing of
the Offering, or (4) if the closing of the Offering does not occur on or prior to June 15, 2010,
this agreement shall be terminated and the undersigned shall be released from any obligations
hereunder.
Very truly yours,
(Name)
