OREXIGEN THERAPEUTICS, INC. (a Delaware corporation) 7,000,000 Shares of Common Stock PURCHASE AGREEMENT
EXHIBIT 1.1
(a Delaware corporation)
7,000,000 Shares of Common Stock
Dated:
January 23, 2008
(a Delaware corporation)
7,000,000 Shares of Common Stock
(Par Value $0.001 per Share)
January 23, 2008
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representative of the several Underwriters
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representative of the several Underwriters
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Orexigen Therapeutics, Inc., a Delaware corporation (the “Company”) confirms its agreement
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and
each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which
term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof),
for whom Xxxxxxx Xxxxx is acting as representative (in such capacity, the “Representative”), with
respect to (i) the 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, and (ii) the grant by the
Company to the Underwriters, severally and not jointly, of the option described in Section 2(b)
hereof to purchase all or any part of 1,050,000 additional shares of Common Stock to cover
overallotments, if any. The aforesaid 7,000,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or any
part of the 1,050,000 shares of Common Stock subject to the option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the “Securities.”
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representative deems advisable after this Agreement has been executed and
delivered.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-1 (No. 333-148490), 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
430A (“Rule 430A”) 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 such registration statement at the time
it became effective pursuant to paragraph (b) of Rule 430A is
referred to as “Rule 430A Information.” Each prospectus used before such registration
statement became effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this Agreement, is herein
called a “preliminary prospectus.” Such registration statement, including the amendments thereto,
the exhibits and any schedules thereto, at the time it became effective, and including the Rule
430A Information, is herein called the “Registration Statement.” Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein 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 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”).
SECTION 1. Representations and Warranties.
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-1 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 and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and 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 (and, if any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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) as of the Applicable Time and the price per share
and number of shares to be offered, all considered together (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
2
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 9:00 a.m. (Eastern time) on
January 24, 2008 or such other time as agreed upon in writing by the Company and Xxxxxxx
Xxxxx.
“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).
“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 below)), 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.
The Company has made available a “bona fide electronic road show,” as defined in Rule
433, in compliance with Rule 433(d)(8)(ii) (the “Bona Fide Electronic Road Show”) such that
no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the
offering of the Securities.
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 Xxxxxxx Xxxxx 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, 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
Xxxxxxx Xxxxx 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
3
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 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) 1934 Act Filings. All of the Company’s filings with the Commission, at
the time they were filed (or, if they were amended, at the time such amendments were filed)
with the Commission, complied in all material respect with the requirements of the
Securities Exchange Act of 1934 (the “1934 Act”), and the rules and regulations of the
Commission under the 1934 Act (the “1934 Regulations”), and at no time contained an untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included 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 have been prepared in
conformity with generally accepted accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved. The supporting schedules to such financial
statements included in the Registration Statement, if any, present fairly in accordance with
GAAP the information required to be stated therein. The selected financial data and the
summary financial information 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 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, 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 other than those in the ordinary course of business, which are material with respect
to the Company, 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. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(vii) No Subsidiaries. The Company has no subsidiaries.
4
(viii) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). 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 in all
material respects to all statements relating thereto 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. The Company is not (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 is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject (collectively, “Agreements and Instruments”) except for
such defaults that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances
that would not 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 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) Absence of Labor Dispute. No labor dispute with the employees of the
Company 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 principal
suppliers,
5
manufacturers, customers or contractors, which, in either case, would result in a
Material Adverse Effect.
(xiii) 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, which is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which would result in a Material Adverse Effect, or which would
materially and adversely affect the properties or assets thereof 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 is a party or of which any of its property or assets is the subject which
are not described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not result in a Material Adverse Effect.
(xiv) 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.
(xv) Possession of Intellectual Property. Except as described in the General
Disclosure Package and the Prospectus, or as would not have a Material Adverse Effect, (a)
the Company owns, possesses or has all rights necessary to use the Company Intellectual
Property (as defined below), (b) the Company has not received any written notice, nor to the
Company’s knowledge, any non-written notice, of any infringement of, or conflict with, any
Intellectual Property (as defined below) of any third party, (c) no third party, including
any academic or governmental organization, possesses or could obtain rights to the Company
Intellectual Property which, if exercised, could enable such party to develop products
competitive with those of the Company, and (d) the Company is not obligated to pay a
royalty, grant a license or provide other consideration to any third party in connection
with the Company Intellectual Property. Except as described in the General Disclosure
Package and the Prospectus or as would not have a Material Adverse Effect, (1) the Company
is not aware of any facts or circumstances concerning its business, as now operated and as
planned to be operated by the Company as described in the Prospectus, that constitute or
will constitute an infringement by the Company of any valid claim of a third-party patent,
(2) the Company is not aware of any facts or circumstances concerning its business, as now
operated and as planned to be operated by the Company as described in the Prospectus, that
constitute or will constitute an infringement by the Company of, or conflict with, any
non-patented Intellectual Property right of any third party, (3) the Company is not aware of
any facts or circumstances that would render any Company Intellectual Property invalid or
unenforceable, (4) the Company is not in breach of any of its obligations under any options,
licenses, or agreements with respect to the Company Intellectual Property and, to the
Company’s knowledge, no other party to such options, licenses or agreements is in breach
thereof, (5) none of the technology employed by the Company has been obtained or is being
used by the Company in violation of any contractual obligation binding on the Company or, to
the Company’s knowledge, any of its officers, directors, employees, consultants or otherwise
in violation of the rights of any persons, and (6) to the Company’s knowledge, there is no
material infringement by third parties of any Company Intellectual Property. The Company is
not a party to or bound by any options, licenses or agreements with respect to the
Intellectual Property rights of any other person or entity that are required to be set forth
in the Registration Statement and are not described therein accurately in all material
respects. For purposes of this Agreement, “Intellectual Property” means patents, patent
rights, trademarks, servicemarks, copyrights, trade names and all registrations and
applications for each of the foregoing, trade secrets, know-how (including other unpatented
6
and/or unpatentable proprietary or confidential information, systems or procedures),
inventions and technology, and “Company Intellectual Property” means Intellectual Property
that is necessary to carry on the business now operated and as planned to be operated by the
Company as described in the Prospectus.
(xvi) PTO Applications. The Company has duly and properly filed or caused to
be filed with the United States Patent and Trademark Office (the “PTO”) and applicable
foreign patent authorities all patent applications owned by the Company or which the Company
is prosecuting on behalf of the owner of such patent applications (the “Company Patent
Applications”). To the knowledge of the Company, the Company has complied with the PTO’s
duty of candor and disclosure for the Company Patent Applications and has made no material
misrepresentation in the Company Patent Applications. To the knowledge of the Company, the
Company has complied with the duty of candor and disclosure for the Company Patent
Applications pending in countries outside the United States. The Company is not aware of
any information material to a determination of patentability regarding the Company Patent
Applications not called to the attention of the PTO or similar foreign authority that
requires such disclosures. The Company is not aware of any information not called to the
attention of the PTO or similar foreign authority requiring disclosure of such information
which the Company believes would preclude the grant of a patent for the Company Patent
Applications. The Company has no knowledge of any information that would preclude the
Company from having clear title to the Company Patent Applications that are purported to be
owned by the Company.
(xvii) 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”).
(xviii) 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.
(xix) Possession of Licenses and Permits. The Company 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 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, result in a Material Adverse Effect;
the Company is 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,
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,
7
result in a Material Adverse Effect; and the Company has not received any notice of
proceedings relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect. The Company has no reason to believe
that any party granting any such Governmental Licenses is considering limiting, suspending
or revoking the same in any material respect. Where required by applicable laws and
regulations of the FDA, the Company has 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, 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, have a Material Adverse Effect.
(xx) Tests and Preclinical and Clinical Studies. The Company has operated and
currently is 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 have a Material Adverse Effect. The preclinical and clinical
studies conducted by or, to the Company’s knowledge, on behalf of the Company 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 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 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; the Company is not in receipt
of any communications 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
the Company has not 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, 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.
(xxi) Title to Property. The Company has good and marketable title to all real
property owned by the Company and good title to all other properties owned by it, 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; and all of the leases and subleases material to the business of the Company and
under which the Company holds properties described in the Prospectus, are in full force and
effect, and the Company has no notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company to the continued
possession of the leased or subleased premises under any such lease or sublease.
8
(xxii) 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”).
(xxiii) Environmental Laws. Except as described in the Prospectus and except
as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) the
Company is not 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 has all permits,
authorizations and approvals required under any applicable Environmental Laws and is 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 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 relating to
Hazardous Materials or any Environmental Laws.
(xxiv) 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.
| (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. |
9
| (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. |
(xxvi) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no
failure on the part of the Company or any of the Company’s officers or directors, in their
capacities as such, to comply in all material respects with any provision 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.
(xxvii) FINRA Matters. Except as disclosed in writing to Xxxxxxx Xxxxx, neither
the Company nor, to the Company’s knowledge, the Company’s officers, directors,
securityholders 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(dd) of
the By-laws of FINRA) of, any member firm of FINRA.
(xxviii) Payment of Taxes. All United States federal income tax returns of the
Company 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, 2006 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 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 result in a Material Adverse Effect.
(xxix) Insurance. The Company 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 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 Change. The Company has not been denied any insurance coverage which it has sought
or for which it has applied.
(xxx) 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
10
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.
(xxxi) 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 and, to the knowledge of the Company,
its affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(xxxii) Money Laundering Laws. The operations of the Company 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”) and no
action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.
(xxxiii) 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.
SECTION 2. Sale and Delivery to Underwriters; Closing.
11
Stock, at the price per share set forth in Schedule B, less an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial Securities but not
payable on the Option Securities. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the purpose of covering
overallotments which may be made in connection with the offering and distribution of the Initial
Securities upon notice by Xxxxxxx Xxxxx to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date of delivery (a
“Date of Delivery”) shall be determined by Xxxxxxx Xxxxx, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the Option Securities,
each of the Underwriters, acting severally and not jointly, will purchase that proportion of the
total number of Option Securities then being purchased which the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as Xxxxxxx Xxxxx in its discretion shall make
to eliminate any sales or purchases of fractional shares.
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representative and the Company, on each Date of Delivery as specified in the notice
from the Representative to the Company.
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 Initial Securities and
the Option Securities, if any, which it has agreed to purchase. Subject to Section 10, Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities or the Option Securities, if any,
to be purchased by any Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter
from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and the
Option Securities, if any, will be made available for examination and packaging by the
Representative in The City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
12
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
13
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.
14
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)
any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the Prospectus; (C) any
shares of Common Stock issued or options to purchase Common Stock granted to employees, directors
and/or consultants of the Company pursuant to the employee benefit and stock plans described in the
Prospectus, or (D) up to an aggregate of 1,700,000 shares of Common Stock issued to
licensors, licensees, collaborators, vendors, manufacturers, distributors, customers, lenders or
other similar parties at a price greater than or equal to the then market price of the Common
Stock; provided, however, that in the case of this subclause (D), the recipients of such Common
Stock agree to execute a Lock Up Agreement in the form attached as Exhibit D-1 hereto for the
remainder of the term of such Lock-Up Agreement.
SECTION 4. Payment of Expenses.
15
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.
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:
16
each of the other Underwriters to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
17
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(f) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for Company. The favorable opinions of (A) Xxxxxx &
Xxxxxxx LLP, counsel for the Company, (B) Knobbe, Martens, Xxxxx & Bear LLP, special
intellectual property counsel for the Company, and (C) Xxxxxx & Xxxxxxx LLP, special
regulatory counsel for the Company, each in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the opinions required
by Section 5(b), Section 5(c) and Section 5(d) hereof, respectively.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of Blank Rome
LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(e) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young LLP in form and
substance satisfactory to the Representative and dated such Date of Delivery, substantially
in the same form and substance as the letter furnished to the Representative pursuant to
Section 5(h) hereof, except that the “specified date” in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such Date of Delivery.
SECTION 6. Indemnification.
18
“Affiliate”), its selling agents and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included 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;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A Information, or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto).
19
Section 6(a) above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
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.
20
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 Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its officers or directors, or
any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; 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
21
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.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the Securities which it
or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representative shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the (i) Representative or (ii) the Company shall have
the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement 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)
22
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 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 4
World Financial Center, New York, New York 10080, attention of Global Origination (Fax:
000-000-0000), with a copy to Blank Rome LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention
of Xxxxx X. Xxxxx, Esq.; notices to the Company shall be directed to it at 00000 Xxxx Xxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, attention of Xxxx X. Xxxxxxxxx, with a copy to Xxxxxx &
Xxxxxxx LLP at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, attention of Xxxxxxx
X. Xxxxxx, Esq.
SECTION 13. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the 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.
23
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.
24
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, OREXIGEN THERAPEUTICS, INC. |
||||
| By | /s/ Xxxx X. Xxxxxxxxx | |||
| Title: CEO | ||||
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
| XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
| By | /s/ [illegible] | |||
| Authorized Signatory | ||||
For itself and as Representative of the other Underwriters named in Schedule A hereto.
25
SCHEDULE A
| Number of | ||||
| Name of Underwriter | Initial Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. |
3,500,000 | |||
Leerink Xxxxx LLC. |
1,400,000 | |||
JMP Securities LLC. |
700,000 | |||
Lazard Capital Markets LLC. |
700,000 | |||
Canaccord Xxxxx Inc. |
490,000 | |||
Natixis Bleichroeder Inc. |
210,000 | |||
Total.
|
7,000,000 | |||
Sch A
SCHEDULE B
1. The initial public offering price per share for the Securities, determined as provided in said
Section 2, shall be
$11.00.
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be
$10.34, being an amount equal to the initial public offering price set forth above
less $.66 per share; provided that the purchase price per share for any Option
Securities purchased upon the exercise of the overallotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B
SCHEDULE C-1
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Xxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxx, M.D.
Xxxx X. Xxxxxxxxx, M.D., Ph.D.
Xxxxxxx X. XxXxxxxx
Xxxxxxx X. Xxxxxx, Ph.X.
Xxxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx, M.D.
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxx, M.D.
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx III
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxx, Ph.D.
Sch C-1
SCHEDULE C-2
LIST OF ENTITIES SUBJECT TO NON-DISTRIBUTION AGREEMENTS
Xxxxxxx
Xxxxxxx Xxxxxxxx & Xxxxx X-A, XX
Xxxxxxx
Xxxxxxx Xxxxxxxx & Xxxxx X-B, LP
Domain
Associates, L.L.C.
Domain
Partners V, L.P.
DP
Associates, L.P.
Sofinnova
Venture Partners VI, L.P.
Sofinnova
Venture Partners VI GmbH & Co. K.G.
Sofinnova
Venture Affiliates VI, L.P.
Scale
Venture Partners, II, LP
Montreux
Equity Partners II SBIC, LP
Montreux
Equity Partners III SBIC, LP
Sch C-2
SCHEDULE D
Issuer
Free Writing Prospectus dated January 24, 2008 filed by Orexigen Therapeutics, Inc. on
January 24, 2008 pursuant to Rule 433 of the Securities Act of 1933, as amended.
Sch D
