EXHIBIT 1.1
Memory Pharmaceuticals Corp.
___Shares
Common Stock
($0.001 par value per Share)
UNDERWRITING AGREEMENT
________, 2004
UNDERWRITING AGREEMENT
_________, 2004
UBS Securities LLC
XX Xxxxx Securities Corporation
Bank of America Securities LLC
Fortis Securities Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Memory Pharmaceuticals Corp., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule A
annexed hereto (the "Underwriters"), for whom you are acting as representatives,
an aggregate of 5,000,000 shares (the "Firm Shares") of Common Stock, $0.001 par
value per share (the "Common Stock"), of the Company. In addition, solely for
the purpose of covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to an additional 750,000
shares of Common Stock (the "Additional Shares"). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-111474),
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each such preliminary prospectus being herein called a
"Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement, as amended when it became or
becomes effective, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act and also including any registration statement filed pursuant to Rule
462(b) under the Act, is herein called the "Registration Statement," and the
prospectus in the form filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act), or, if no such filing
is required, the form of final prospectus included in the Registration Statement
at the time it became effective, is herein called the "Prospectus." As used
herein, "business day" shall mean a day on which the New York Stock Exchange is
open for trading.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in accordance with Section 8
hereof, in each case at a purchase price of $____ per Share. The Company is
advised by you that the Underwriters intend (i) to make a public offering of
their respective portions of the Firm Shares as soon after the effective date of
the Registration Statement as in your judgment is advisable and (ii) initially
to offer the Firm Shares upon the terms set forth in the Prospectus. You may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by UBS
Securities LLC ("UBS") on behalf of the several Underwriters at any time and
from time to time on or before the thirtieth day following the date of the
Prospectus, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised
and the date and time when the Additional Shares are to be delivered (such date
and time being herein referred to as the "additional time of purchase");
provided, however, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares), subject to adjustment in accordance
with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire transfer against
delivery of the certificates for the Firm Shares to you through the facilities
of The Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on ________, 2004 (unless another time shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called "the time of purchase." Electronic transfer of the
Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
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Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of Xxxxx
Xxxxxxxxxx LLP at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00
A.M., New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has been declared
effective under the Act; no stop order of the Commission preventing or
suspending the use of any Preliminary Prospectus or the effectiveness
of the Registration Statement has been issued and no proceedings for
such purpose have been instituted or, to the Company's knowledge, are
threatened by the Commission; each Preliminary Prospectus, at the time
of filing thereof, complied with the requirements of the Act, and the
last Preliminary Prospectus distributed in connection with the offering
of the Shares did not, as of its date, and does not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
the Registration Statement complied when it became effective, complies
and, at the time of purchase and any additional time of purchase, will
comply, and any time at which any sales with respect to which the
Prospectus is delivered, will comply in all material respects, with the
requirements of the Act, and the Prospectus, as of its date and at the
time of purchase and any additional times of purchase, will comply, and
any time at which any sales with respect to which the Prospectus is
delivered, will comply in all material respects, with the requirements
of the Act; any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
have been and will be so described or filed; the conditions to the use
of Form S-1 have been satisfied; the Registration Statement did not
when it became effective, does not and, at the time of purchase and any
additional time of purchase and any time at which any sales with
respect to which the Prospectus is delivered, 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, and the Prospectus will not, as of its date and
at the time of purchase and any additional time of purchase and any
time at which any sales with respect to which the Prospectus is
delivered, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus in reliance upon and in conformity with information
concerning an Underwriter and furnished in writing by or on behalf of
such
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Underwriter through you to the Company expressly for use in any
Preliminary Prospectus, the Registration Statement or the Prospectus;
and the Company has not distributed and will not distribute any
"prospectus" (within the meaning of the Act) or offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the then most recent Preliminary Prospectus and
the Prospectus; provided further, that if, at any time after the Time
of Purchase, the Company is obligated to prepare and furnish to the
Underwriters an amendment or supplement to the Prospectus under Section
4(g) of this Agreement and so furnishes such amendment or supplement,
then from and after the time that such Prospectus as amended or
supplemented is furnished to the Underwriters in accordance with
Section 4(g), the term "Prospectus" shall be deemed to mean the
Prospectus as so amended or supplemented; provided further, that
nothing in the foregoing proviso shall relieve the Company of any
liability for a breach of the representations contained in this Section
3 during any period between the occurrence of the event giving rise to
the need to amend or supplement the Prospectus and the actual delivery
of the Prospectus, as amended or supplemented, to the Underwriters in
accordance with Section 4(b);
(b) as of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth in the section
of the Registration Statement and the Prospectus entitled
"Capitalization" and "Description of capital stock," and, as of the
time of purchase and the additional time of purchase, as the case may
be, the Company shall have an authorized and outstanding capitalization
as set forth in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and "Description of capital stock"
(subject, in each case, to the issuance of shares of Common Stock upon
exercise of stock options and warrants disclosed as outstanding in the
Registration Statement and the Prospectus and the grant of options
under existing stock option plans described in the Registration
Statement and the Prospectus); all of the issued and outstanding shares
of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all federal and
state securities laws and were not issued in violation of any
preemptive right, right of first refusal or similar right; at the time
of purchase, all outstanding shares of each series of the Company's
Preferred Stock, $0.001 par value per share, shall automatically
convert (to the extent not previously converted at the option of the
holder thereof) convert into the number of shares of Common Stock, and
shall automatically convert (to the extent not previously converted at
the option of the holder thereof) in the manner, as set forth in the
Registration Statement and the Prospectus; and, prior to the date
hereof, the Company has duly effected and completed a one for three
reverse stock split of the Common Stock in the manner set forth in the
Registration Statement and the Prospectus; and the Third Amended and
Restated Certificate of Incorporation of the Company and the Amended
and Restated Bylaws of the Company, each in the form filed as an
exhibit to the Registration Statement, have been heretofore duly
authorized and approved in accordance with the Delaware General
Corporation Law and shall become effective and in full force and effect
on or before the time of purchase;
(c) the Company has been duly incorporated and is validly
existing as a
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corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement and
to issue, sell and deliver the Shares as contemplated herein;
(d) the Company is duly qualified to do business as a
foreign corporation and is in good standing in New Jersey, such
jurisdiction being the only jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a material
adverse effect on the business, properties, financial condition,
results of operation or prospects of the Company (a "Material Adverse
Effect");
(e) the Company has no subsidiaries (as defined under the
Act); the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity; complete and correct copies of
the certificates of incorporation and the bylaws of the Company and all
amendments thereto have been delivered to you, and, except as set forth
in the exhibits to the Registration Statement, no changes therein will
be made after the date hereof and on or before the time of purchase or,
if later, the additional time of purchase;
(f) the Company and its officers and directors (in their
capacities as such) are in compliance in all material respects with all
applicable effective provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the
"Xxxxxxxx-Xxxxx Act") and the rules and regulations of the Commission
and the National Association of Securities Dealers Automated Quotation
National Market System ("Nasdaq") promulgated thereunder;
(g) the Shares have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and free
of statutory and contractual preemptive rights, rights of first refusal
and similar rights;
(h) the capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus, and the
certificates for the Shares are in due and proper form and the holders
of the Shares will not be subject to personal liability by reason of
being such holders;
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(j) the Company is not in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of
time or both would result in any breach or violation of, constitute a
default under or give the holder of any indebtedness (or a person
acting on such holder's behalf) the right to require the repurchase,
redemption or
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repayment of all or a part of such indebtedness under) (A) its
certificate of incorporation or bylaws, or (B) any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company is a party or by which it or any of its
properties may be bound or affected, or (C) any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company, except, with respect to clauses (B) and (C),
for such breaches, violations or defaults as would not, individually or
in the aggregate, have a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with notice,
lapse of time or both would result in any breach or violation of or
constitute a default under or give the holder of any indebtedness (or a
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a part of such
indebtedness under) (x) the certificate of incorporation or bylaws of
the Company, or (y) any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company
is a party or by which it or any of its properties may be bound or
affected, or (z) any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company,
except, with respect to clause (y), for such breaches, violations or
defaults as would not, individually or in the aggregate, have a
Material Adverse Effect;
(k) no approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, or of or with
the Nasdaq, is required in connection with the issuance and sale of the
Shares or the consummation by the Company of the transactions
contemplated hereby other than registration of the Shares under the
Act, which has been effected, and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or under the rules and
regulations of the National Association of Securities Dealers, Inc.
("NASD"); no approval of the stockholders of the Company is required in
connection with the issuance and sale of the Shares or the consummation
by the Company of the transactions contemplated hereby, except for the
approval on February 26, 2004 of (i) the Restated Certificate of
Incorporation and (ii) the one for three reverse stock split, the
approvals for each of which having been received prior to their
effectiveness;
(l) except as expressly set forth in the Registration
Statement and the Prospectus, (i) at the time of purchase, no person
will have the right, contractual or otherwise, to cause the Company to
issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) at the
time of purchase, no person will have any preemptive rights, rights of
first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock of or other equity interests in the
Company and (iii) no person has the right to act as an underwriter or
as a financial advisor to the Company in connection with the offer and
sale of the Shares, in the case of each of the foregoing clauses (i),
(ii) and (iii),
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whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or
otherwise; except as expressly set forth in the Registration Statement
and Prospectus, no person has the right, contractual or otherwise, to
cause the Company to register under the Act any shares of Common Stock
or shares of any other capital stock of or other equity interests in
the Company, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby, whether as
a result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise;
(m) the Company has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to
conduct its business, except where the failure to obtain such licenses,
authorizations, consents and approvals would not, individually or in
the aggregate, have a Material Adverse Effect; the Company is not in
violation of, or in default under, nor has it received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company, except where such violation,
default, revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect;
(n) all legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions (including, without
limitation, transactions related to, and the existence of, "variable
interest entities" within the meaning of Financial Accounting Standards
Board Interpretation No. 46), contracts, licenses, agreements, leases
or documents required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required;
(o) there are no actions, suits, claims, investigations
or proceedings pending or threatened or, to the Company's knowledge,
threatened to which the Company or any of its directors or officers is
or would be a party or of which any of its properties is or would be
subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority
or agency, except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order
having, individually or in the aggregate, a Material Adverse Effect or
preventing consummation of the transactions contemplated hereby;
(p) KPMG LLP, whose report on the financial statements of
the Company is included the Registration Statement and the Prospectus,
are independent public accountants as required by the Act and by Rule
3600T of the Public Company Accounting Oversight Board (the "PCAOB");
(q) the financial statements included in the Registration
Statement and the Prospectus, together with the related notes and
schedules, present fairly the financial
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position of the Company as of the dates indicated and the results of
operations and cash flows of the Company for the periods specified and
have been prepared in compliance with the requirements of the Act and
in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved; the other financial and
statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement and the
Prospectus (including, without limitation, as required by Rules 3-12 or
3-05 or Article 11 of Regulation S-X under the Act) that are not
included as required; the Company does not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any "variable interest entities"
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration Statement and
the Prospectus; and all disclosures contained in the Registration
Statement or the Prospectus regarding "non-GAAP financial measures" (as
such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the
"Exchange Act") and Item 10 of Regulation S-K under the Act, to the
extent applicable;
(r) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business,
properties, management, financial condition or results of operations of
the Company, (ii) any transaction which is material to the Company,
(iii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company, which is material to it,
(iv) any change in the capital stock or outstanding indebtedness of the
Company or (v) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company;
(s) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), in the form set
forth as Exhibit A hereto, of each of its directors and officers and
each holder of shares of Common Stock or any security convertible into
or exercisable or exchangeable for Common Stock or any warrant or other
right to purchase Common Stock or any such security;
(t) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(u) the Company has good and marketable title to all
property (real and personal) described the Registration Statement or in
the Prospectus as being owned by each of them, free and clear of all
liens, claims, security interests or other encumbrances except as
described in the Registration Statement or Prospectus or such as do not
materially affect the value of such property and do not interfere with
the use
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made or proposed to be made of such property by the Company; all the
property described in the Registration Statement and the Prospectus as
being held under lease by the Company is held thereby under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company;
(v) the Company owns, or has obtained valid and
enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets and
other proprietary information described in the Registration Statement
or the Prospectus as being owned or licensed by them or which are
necessary for the conduct of its businesses, except where the failure
to own, license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect (collectively, "Intellectual
Property"); (i) other than as described in the Registration Statement
and the Prospectus, there are no third parties who have or, to the
Company's knowledge, will be able to establish rights to any
Intellectual Property, except for the ownership rights of the owners of
the Intellectual Property which is licensed to the Company; (ii) to the
Company's knowledge, there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual Property,
and the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; (iv) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity, scope and
enforceability of any Intellectual Property, and the Company is unaware
of any facts which would form a reasonable basis for any such action,
suit, proceeding or claim; (v) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
tradename, service name, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would
form a reasonable basis for any such action, suit, proceeding or claim;
(vi) there is no patent or, to the Company's knowledge, patent
application that contains claims that interfere with the issued or
pending claims of any of the Intellectual Property; and (vii) there is
no prior art that may render any patent application owned by the
Company of the Intellectual Property unpatentable that has not been
disclosed to the U.S. Patent and Trademark Office;
(w) except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is (A) no
unfair labor practice complaint pending or, to the Company's knowledge,
threatened against the Company before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or
under collective bargaining agreements is pending or, to the Company's
knowledge, threatened, (B) no strike, labor dispute, slowdown or
stoppage pending or, to the Company's knowledge, threatened against the
Company and (C) no union representation dispute currently existing
concerning the employees of the Company, and (ii) to the Company's
knowledge, (A) no union organizing activities are currently taking
place concerning the employees of the Company and (B) there has been no
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material violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder concerning the employees of the
Company;
(x) the Company its properties, assets and operations are
in compliance with, and hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect; there are no past, present
or, to the Company's knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions or
plans that could reasonably be expected to give rise to any material
costs or liabilities to the Company under, or to interfere with or
prevent compliance by the Company with, Environmental Laws; except as
would not, individually or in the aggregate, have a Material Adverse
Effect, the Company (i) to its knowledge is not the subject of any
investigation, (ii) has not received any notice or claim, (iii) is not
a party to or affected by any pending or, to the Company's knowledge,
threatened action, suit or proceeding, (iv) is not bound by any
judgment, decree or order or (v) has not entered into any agreement, in
each case relating to any alleged violation of any Environmental Law or
any actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below) (as used herein,
"Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(y) in the ordinary course of its business, the Company
conducts a periodic review of the effect of the Environmental Laws on
its business, operations and properties, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
cleanup, closure of properties or compliance with the Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties);
(z) all material tax returns required to be filed by the
Company have been filed, and all taxes and other assessments of a
similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided;
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(aa) the Company maintains insurance covering its
properties, operations, personnel and businesses as the Company deems
adequate; such insurance insures against such losses and risks to an
extent which is adequate in accordance with customary industry practice
to protect the Company and its business; all such insurance is fully in
force on the date hereof and will be fully in force at the time of
purchase and any additional time of purchase;
(bb) Company has not sustained since the date of the last
audited financial statements included in the Registration Statement and
the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree;
(cc) Except as disclosed in the Registration Statement and
Prospectus, the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or, to the Company's knowledge, any
other party to any such contract or agreement;
(dd) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
(ee) the Company has established and maintains and
evaluates "disclosure controls and procedures" (as such term is defined
in Rule 13a-15 and 15d-15 under the Exchange Act) and "internal control
over financial reporting" (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company is made known to the Company's Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such
disclosure controls and procedures are effective to perform the
functions for which they were established; the Company's auditors and
the Audit Committee of the Board of Directors of the Company have been
advised of: (i) any significant deficiencies in the design or operation
of internal controls which could adversely affect the Company's ability
to record, process, summarize, and report financial data; and (ii) any
fraud, whether or not material, that involves management or other
employees who have a role in the Company's internal controls; any
material weaknesses in internal controls have been identified for the
Company's auditors; and since the date of the most recent evaluation of
such disclosure controls
- 11 -
and procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses;
(ff) the Company has provided you true, correct and
complete copies of all documentation pertaining to any extension of
credit in the form of a personal loan made, directly or indirectly, by
the Company to any director or executive officer of the Company, or to
any family member or affiliate of any director or executive officer of
the Company; and on or after July 30, 2002, the Company has not,
directly or indirectly: (i) extended credit, arranged to extend credit,
or renewed any extension of credit, in the form of a personal loan, to
or for any director or executive officer of the Company, or to or for
any family member or affiliate of any director or executive officer of
the Company; or (ii) made any material modification, including any
renewal thereof, to any term of any personal loan to any director or
executive officer of the Company, or any family member or affiliate of
any director or executive officer, which loan was outstanding on July
30, 2002, except, in the case of clauses (i) or (ii), for any loans
forgiven or paid off in full prior to the date of initial filing of the
Registration Statement;
(gg) all statistical or market-related data included in
the Registration Statement or the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate, and
the Company has obtained the written consent to the use of such data
from such sources to the extent required;
(hh) none of the Company nor, to the Company's knowledge,
any employee or agent of the Company has made any payment of funds of
the Company or received or retained any funds, in either case, in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is required to be disclosed in the Registration
Statement or the Prospectus;
(ii) the preclinical tests and clinical trials that are
described in, or the results of which are referred to in, the
Registration Statement or the Prospectus were and, if still pending,
are being conducted in accordance in all material respects with
protocols filed with the appropriate regulatory authorities for each
such test or trial, as the case may be; the description of the results
of such tests and trials contained in the Registration Statement or the
Prospectus are accurate and complete in all material respects, and the
Company has no knowledge of any other studies or tests the results of
which are inconsistent with, or otherwise call into question, the
results described or referred to in the Registration Statement or the
Prospectus; the Company has not received any notices or other
correspondence from the Food and Drug Administration of the U.S.
Department of Health and Human Services or any committee thereof or
from any other governmental agency requiring the termination,
suspension or modification of any clinical trials that are described or
referred to in the Registration Statement or the Prospectus;
(jj) except pursuant to this Agreement, the Company has
not incurred any
- 12 -
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby or by the
Prospectus;
(kk) neither the Company nor, to the Company's knowledge,
any of its directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Shares; and
(ll) to the Company's knowledge, there are no affiliations
or associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus.
In addition, any certificate signed by any officer of the
Company and delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company as to matters covered thereby, to
each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states or other
jurisdictions as you may designate and to maintain such qualifications
in effect so long as may be required for the distribution of the
Shares; provided, however, that the Company shall not be required to
qualify as a foreign corporation as a dealer in securities, to subject
itself to taxation in respect of doing business in any jurisdiction or
to consent to the service of process under the laws of any such
jurisdiction (except service of process with respect to the offering
and sale of the Shares); and to promptly advise you of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Shares for offer or sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York
City, as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
- 13 -
(c) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or any
post-effective amendment thereto to be declared effective before the
Shares maybe sold, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon
as possible, and the Company will advise you promptly and, if requested
by you, will confirm such advice in writing, (i) when the Registration
Statement and any such post-effective amendment thereto has become
effective, and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rule);
(d) to advise you promptly, confirming such advice in
writing (if requested by you), of any request by the Commission for
amendments or supplements to the Registration Statement or the
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to use its reasonable best efforts to
obtain the lifting or removal of such order as soon as possible; to
advise you promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and to provide you and
Underwriters' counsel copies of any such documents for review and
comment a reasonable amount of time prior to any proposed filing and to
file no such amendment or supplement to which you shall object in
writing;
(e) to file promptly all reports and any definitive proxy
or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; to
provide you with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act during such period for your review and
comment a reasonable amount of time prior to any proposed filing, and
to file no such report, statement or document to which you shall object
in writing; and to promptly notify you of any such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act and pay the applicable
fees in accordance with the Act;
(g) to advise the Underwriters promptly of the happening
of any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act which could require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 4(d) hereof, to
prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change;
- 14 -
(h) to make generally available to its security holders,
and to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but in any case not later than fifteen months after the
effective date of the Registration Statement;
(i) to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and its Subsidiaries (if any) for
such fiscal year, accompanied by a copy of the certificate or report
thereon of nationally recognized independent certified public
accountants duly registered with the PCAOB);
(j) to furnish to you five (5) copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and sufficient
copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters;
(k) to file on or before the date when required all
reports and all definitive proxy and/or information statements required
to be filed by the Company with the Commission in order to comply with
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares;
(l) to furnish to you as early as reasonably practicable
prior to the time of purchase and any additional time of purchase, as
the case may be, but not later than two business days prior thereto, a
copy of the latest available unaudited interim and monthly financial
statements, if any, of the Company which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(c) hereof;
(m) to apply the net proceeds from the sale of the Shares
in the manner set forth under the caption "Use of proceeds" in the
Prospectus;
(n) to pay all costs, expenses, fees and taxes in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the registration, issue, sale and
delivery of the Shares including any stock or transfer taxes and stamp
or similar duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, any Agreement Among Underwriters, any
dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing
and furnishing of copies of
- 15 -
each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for investment
under state or foreign law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters)
and the printing and furnishing of copies of any blue sky surveys or
legal investment surveys to the Underwriters and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of
the Shares for quotation on the NASDAQ and any registration thereof
under the Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD, including the legal fees and filing
fees and other disbursements of counsel to the Underwriters, (vii) the
fees and disbursements of any transfer agent or registrar for the
Shares, (viii) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing
of the offering and sale of the Shares to prospective investors and the
Underwriters' sales forces, 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, lodging and other expenses incurred by the
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) the
performance of the Company's other obligations hereunder;
(o) not to sell, offer to sell, contract or agree to
sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, any Common
Stock or securities convertible into or exchangeable or exercisable for
Common Stock or warrants or other rights to purchase Common Stock or
any other securities of the Company that are substantially similar to
Common Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or warrants or other rights to purchase
Common Stock or any other securities of the Company that are
substantially similar to Common Stock for a period of 180 days after
the date hereof (the "Lock-Up Period"), without the prior written
consent of UBS, except for (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Prospectus and the
filing of one or more registration statements on Form S-8 relating to
the issuance and exercise of employee stock options, and (iii) the
issuance of employee stock options not exercisable during the Lock-Up
Period pursuant to stock option plans described in the Registration
Statement and the Prospectus;
(p) prior to the time of purchase or the additional time
of purchase, as the case may be, to issue no press release or other
communication directly or indirectly and hold no press conferences with
respect to the Company, the financial condition, results of operations,
business, properties, assets, or liabilities of the Company, or the
offering of the Shares, without your prior consent;
- 16 -
(q) to use its reasonable best efforts to cause the
Common Stock to be listed for quotation on the NASDAQ and to maintain
such listing; and
(r) to maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the
Common Stock.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof, at
the time of purchase and, if applicable, at the additional time of purchase, the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of
purchase and, if applicable, at the additional time of purchase, an
opinion of Xxxxxxxxx & Xxxxxxx, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with reproduced copies for each of the
other Underwriters, and in form and substance satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, in the form set forth in
Exhibit B hereto.
(b) The Company shall furnish to you at the time of
purchase and, if applicable, at the additional time of purchase, an
opinion of Millen, White, Xxxxxx & Xxxxxxxx, special counsel for the
Company with respect to patents and proprietary rights, addressed to
the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with reproduced copies for each of the
other Underwriters, and in form and substance satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, in the form set forth in
Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated,
respectively, the date of this Agreement, the time of purchase and, if
applicable, the additional time of purchase, and addressed to the
Underwriters (with executed copies for each of the Underwriters) in the
forms heretofore approved by UBS.
(d) You shall have received at the time of purchase and,
if applicable, at the additional time of purchase, the favorable
opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated
the time of purchase or the additional time of purchase, as the case
may be, in form and substance reasonably satisfactory to UBS.
(e) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus shall have been filed to which
you object in writing.
- 17 -
(f) The Registration Statement shall become effective not
later than 5:30 P.M., New York City time, on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement and any registration statement
pursuant to Rule 462(b) under the Act required in connection with the
offering and sale of the Shares shall have been filed and become
effective no later than 10:00 P.M., New York City time, on the date of
this Agreement.
(g) Prior to the time of purchase, and, if applicable,
the additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall 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; and (iii) the Prospectus
and all amendments or supplements thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not
misleading.
(h) Between the time of execution of this Agreement and
the time of purchase or the additional time of purchase, as the case
may be, (A) no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company
shall occur or become known and (B) no transaction which is material
and adverse to the Company has been entered into by the Company.
(i) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial
Officer in the form attached as Exhibit D hereto.
(j) You shall have received signed Lock-up Agreements
referred to in Section 3(s) hereof.
(k) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and, if applicable, the additional time of purchase,
as you may reasonably request.
(l) The Shares shall have been approved for quotation on
the NASDAQ, subject only to notice of issuance at or prior to the time
of purchase or the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of
- 18 -
the effectiveness of the Registration Statement, or (ii) if Rule 430A under the
Act is used, when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS or any group of
Underwriters (which may include UBS) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, if (x) since the time of execution of
this Agreement or the earlier respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been any material
adverse change or any development involving a prospective material adverse
change in the business, properties, management, financial condition or results
of operations of the Company, which would, in UBS' judgment or in the judgment
of such group of Underwriters, make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus, or (y)
since of execution of this Agreement, there shall have occurred: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by
either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national
emergency or war; or (v) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in UBS' judgment
or in the judgment of such group of Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus.
If UBS or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement, or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(n), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6
and 7 hereof, if any Underwriter shall default in its obligation to purchase and
pay for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 6 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to purchase and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall purchase and
pay for (in addition to the aggregate
- 19 -
number of Firm Shares they are obligated to purchase pursuant to Section 1
hereof) the number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be purchased and paid
for by such non-defaulting Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be purchased and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set forth opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer
to and include any Underwriter substituted under this Section 8 with like effect
as if such substituted Underwriter had originally been named in Schedule A
hereto.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five business day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold
harmless each Underwriter, its partners, directors and officers, and
any person who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any
such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue
- 20 -
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in the Registration Statement as amended
by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 9 being
deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of
or is based upon any omission or alleged omission to state a material
fact required to be stated in either such Registration Statement or
such Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability
or claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or
on behalf of such Underwriter through you to the Company expressly for
use in, such Registration Statement or such Prospectus or arises out of
or is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such
information not misleading, (ii) any untrue statement or alleged untrue
statement made by the Company in Section 3 hereof or the failure by the
Company to perform when and as required any agreement or covenant
contained herein, or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual
materials provided by the Company or based upon written information
furnished by or on behalf of the Company including, without limitation,
slides, videos, films or tape recordings used in connection with the
marketing of the Shares; provided, however, that, solely with regard to
clause (i), the foregoing indemnity agreement with respect to any
Prospectus or Preliminary Prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting such losses, claims,
damages or liabilities purchased Shares, or any person controlling the
Underwriter, if copies of the Prospectus were timely delivered to such
Underwriter pursuant to Section 4 hereof and a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not given or sent to such
person, if the Prospectus was required by law to have been delivered,
at or prior to the written confirmation of the sale of the Shares to
such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages
or liabilities.
If any action, suit or proceeding (each, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Company in writing of the
institution of such Proceeding and the Company shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that
the omission to so notify the Company shall not relieve the Company from any
liability which the Company may have to any Underwriter or any such person or
otherwise, except to the extent the Company shall not have otherwise learned of
such Proceeding and such failure results in the forfeiture by the Company of
substantial rights or defenses. Such Underwriter or such person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of
- 21 -
such counsel shall be at the expense of such Underwriter or of such person
unless the employment of such counsel shall have been authorized in writing by
the Company in connection with the defense of such Proceeding or the Company
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded, upon
advice of counsel, that there may be defenses available to it or them which are
different from, additional to or in conflict with those available to the Company
(in which case the Company shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the Company and paid as incurred
(it being understood, however, that the Company shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Company shall not be liable for any settlement of any Proceeding effected
without its written consent but, if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request for reimbursement of fees and expenses of counsel prior to the date of
such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify,
defend and hold harmless the Company, its directors and officers, and
any person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such
person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with
information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use
in, the Registration
- 22 -
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to
be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise,
except to the extent such Underwriter shall not have otherwise learned of such
Proceeding and such failure results in the forfeiture by such Underwriter of
substantial rights or defenses. The Company or such person shall have the right
to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded, upon advice of counsel, that
there may be defenses available to it or them which are different from or
additional to or in conflict with those available to such Underwriter (in which
case such Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but such Underwriter
may employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), in any of
which events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that such Underwriter shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but, if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request for reimbursement of fees
and expenses of counsel prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at
- 23 -
least 30 days' prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9
is unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, damages, expenses, liabilities or claims (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Shares. The relative
fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission 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 amount paid or payable by a party as a
result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of
this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
No
- 24 -
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and
not joint.
(e) The indemnity and contribution agreements contained
in this Section 9 and the covenants, warranties and representations of
the Company contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it
and, in the case of the Company, against any of the Company's officers
or directors in connection with the issuance and sale of the Shares, or
in connection with the Registration Statement or the Prospectus.
10. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page of the Prospectus and in the
sixth, seventh, and thirteenth through seventeenth paragraphs under the caption
"Underwriting" in the Prospectus, only insofar as such statements relate to the
amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute
the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 000 Xxxxxxx
Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Axel Unterbeck.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such
- 25 -
matters, and the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out of
or in any way relating to this Agreement is brought by any third party against
UBS or any indemnified party. Each of UBS and the Company (on its behalf and, to
the extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters and the Company and to
the extent provided in Section 9 hereof the controlling persons, partners,
directors and officers referred to in such Section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding upon
the Underwriters and the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS, an indirect, wholly owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBS is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are
not insured by the Federal Deposit Insurance Corporation, are not guaranteed by
a branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
- 26 -
If the foregoing correctly sets forth the understanding
between the Company and the several Underwriters, please so indicate in the
space provided below for that purpose, whereupon this agreement and your
acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
Very truly yours,
MEMORY PHARMACEUTICALS CORP.
By:_______________________________
Name:
Title:
Accepted and agreed to as of the
date first above written, on behalf
of themselves and the other several
Underwriters named in Schedule A
UBS SECURITIES LLC
XX XXXXX SECURITIES CORPORATION
BANK OF AMERICA SECURITIES LLC
FORTIS SECURITIES INC.
By: UBS SECURITIES LLC
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
SCHEDULE A
Number of
Underwriter Firm Shares
------------------------------------------------------------------ -----------
UBS SECURITIES LLC................................................ [____]
XX XXXXX SECURITIES CORPORATION................................... [____]
BANK OF AMERICA SECURITIES LLC.................................... [____]
FORTIS SECURITIES INC. ........................................... [____]
------
Total.................................................... [____]
------
EXHIBIT A
Lock-Up Agreement
___________ ___, [year]
UBS Securities LLC
XX Xxxxx Securities Corporation
Bank of America Securities LLC
Fortis Securities Inc.
As Representatives of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection
with the proposed Underwriting Agreement (the "Underwriting Agreement") to be
entered into by Memory Pharmaceuticals Corp., a Delaware corporation (the
"Company"), and you, as Representatives of the several Underwriters named
therein, with respect to the public offering (the "Offering") of common stock,
par value $0.001 per share, of the Company (the "Common Stock").
In order to induce you to enter into the Underwriting
Agreement, the undersigned agrees that, for a period (the "Lock-Up Period")
beginning on the date hereof and ending on the date that is 180 days after the
date of the final prospectus relating to the Offering, the undersigned will not,
without the prior written consent of UBS Securities LLC, (i) sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or file (or participate in the filing of) a registration statement with the
Securities and Exchange Commission (the "Commission") in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder with respect to, any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants or
other rights to purchase Common Stock, (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to
purchase Common Stock, whether any such transaction is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise or (iii) publicly
announce an intention to effect any transaction specified in clause (i) or (ii).
The foregoing sentence shall not apply to (a) the registration of or sale to the
Underwriters (as defined in the Underwriting Agreement) of any Common Stock
pursuant to the Offering and the Underwriting Agreement, (b) bona fide gifts,
provided the recipient thereof agrees in writing with the Underwriters to be
bound by the terms of this Lock-
A-1
Up Agreement or (c) dispositions to any trust for the direct or indirect benefit
of the undersigned and/or the immediate family of the undersigned, provided that
such trust agrees in writing with the Underwriters to be bound by the terms of
this Lock-Up Agreement.
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, for the Lock-Up Period, the undersigned will not, without
the prior written consent of UBS Securities LLC, make any demand for, or
exercise any right with respect to, the registration of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock.
* * *
A-2
If (i) the Company notifies you in writing that it does not
intend to proceed with the Offering, (ii) the registration statement filed with
the Commission with respect to the Offering is withdrawn or (iii) for any reason
the Underwriting Agreement shall be terminated prior to the "time of purchase"
(as defined in the Underwriting Agreement), this Lock-Up Agreement shall be
terminated and the undersigned shall be released from its obligations hereunder.
Yours very truly,
______________________________
Name:
A-3
EXHIBIT B
OPINION OF XXXXXXXXX & XXXXXXX
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement and
to issue, sell and deliver the Shares as contemplated herein.
2. The Company is duly qualified to do business as a foreign corporation
and is in good standing in the State of New Jersey.
3. This Agreement has been duly authorized, executed and delivered by the
Company.
4. The Shares have been duly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, will be validly
issued, fully paid and non-assessable.
5. The Company has an authorized and outstanding capitalization as set
forth under the caption "Capitalization" in the Registration Statement
and the Prospectus; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and are free of preemptive rights under
the Delaware General Corporation Law (the "DGCL"), under the Company's
certificate of incorporation and, to such counsel's knowledge,
preemptive rights, rights of first refusal and similar rights arising
under any contract; the Shares are free of preemptive rights under the
DGCL, under the Company's certificate of incorporation and, to such
counsel's knowledge, preemptive rights, rights of first refusal and
similar rights arising under any contract; the certificates for the
Shares are in due and proper form, and the holders of the Shares will
not be subject to personal liability by reason of being such holders;
at the time of purchase, all outstanding shares of the Company's
Redeemable Convertible Preferred Stock, $0.001 par value per share,
will automatically convert (to the extent not previously converted at
the election of the holder thereof) into the number of shares of Common
Stock, and will be automatically converted in the manner, as set forth
in the Registration Statement and the Prospectus in compliance with
applicable law; and the Company's certificate of incorporation and
bylaws have been heretofore duly authorized and approved in accordance
with the DGCL, and will be in full force and effect immediately
following the time of purchase, in each case in accordance with the
DGCL.
6. The capital stock of the Company, including the Shares, conforms in all
material respects to the description thereof contained in the
Registration Statement and the Prospectus under the caption
"Description of capital stock."
7. The Registration Statement as of its effective date and the Prospectus
as of its date (except as to the financial statements and schedules and
other financial and accounting data contained therein, including the
statistical information derived from such financial statements,
schedules and data, as to which such counsel need express no opinion)
complied as to form
B-1
in all material respects with the requirements of the Act; and (B) the
conditions to the use of Form S-1 have been satisfied as of the date of
filing and as of the effective date of the Registration Statement.
8. The Registration Statement has become effective under the Act and, to
such counsel's knowledge, no stop order proceedings with respect
thereto are pending or threatened under the Act, and any required
filing of the Prospectus and any supplement thereto pursuant to Rule
424 under the Act has been made in the manner and within the time
period required by such Rule 424.
9. No approval, authorization, consent or order of or filing with any
federal or state governmental or regulatory commission, board, body,
authority or agency, or of or with The Nasdaq National Market, is
required in connection with the issuance and sale of the Shares or with
the consummation by the Company of the transactions contemplated hereby
other than registration of the Shares under the Act and approval of the
Shares for listing on The Nasdaq National Market (except that such
counsel need express no opinion as to any necessary qualification under
the state securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters). No approval of
the stockholders of the Company is required in connection with the
issuance and sale of the Shares, except for approvals which have been
received.
10. The execution, delivery and performance of this Agreement by the
Company, the issuance and sale of the Shares by the Company and the
consummation by the Company of the transactions contemplated hereby do
not and will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with notice,
lapse of time or both would result in any breach or violation of or
constitute a default under) (A) the certificate of incorporation or
bylaws of the Company, or (B) any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument which is
filed as an exhibit to the Registration Statement, (C) or any federal
or state law, regulation or rule or (D) any decree, judgment or order
applicable to the Company and known to such counsel.
11. To such counsel's knowledge, there are no affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases
or documents of a character which are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement which have not been so described or
filed.
12. To such counsel's knowledge, there are no actions, suits, claims,
investigations or proceedings pending, or threatened to which the
Company or any of its directors or officers is or would be a party or
to which any of its properties is or would be subject at law or in
equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency which are
required to be described in the Registration Statement or the
Prospectus but are not so described.
13. The Company is not and, after giving effect to the offering and sale of
the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such
B-2
terms are defined in the Investment Company Act of 1940, as amended.
14. The information in the Registration Statement and the Prospectus under
the headings "Risk factors - Anti-takeover provisions that we have in
place could entrench our management team and delay or prevent an
acquisition. These provisions could adversely affect the price of our
common stock because purchasers cannot acquire a controlling
interest.", "Business - Collaborations and in-licenses", "Business -
Government regulation", "Management - Limitation of liability and
indemnification of officers and directors", "Management - Employment
agreements", "Management - Stock option and other compensation plans",
"Certain relationships and related party transactions", "Description of
capital stock", "Shares eligible for future sale", and "Part II
Information not required in the prospectus - Item 14. Indemnification
of directors and officers", insofar as such statements constitute a
summary of contracts, agreements or other legal documents or matters of
law, and any other statements in the Registration Statement or the
Prospectus that are descriptions of contracts, agreements or other
legal documents or of legal proceedings, or refer to statements of law
or legal conclusions, at the time such Registration Statement became
effective, as of the date of the Prospectus and at the time of purchase
or the additional time of purchase, as the case may be, are accurate
and complete in all material respects and present fairly the
information required to be shown.
15. To such counsel's knowledge, except as described in the Registration
Statement and the Prospectus, no person has the right, pursuant to the
terms of any contract, agreement or other instrument described in or
filed as an exhibit to the Registration Statement or otherwise known to
such counsel, to cause the Company to register under the Act any shares
of Common Stock or shares of any other capital stock or other equity
interest in the Company or to include any such shares or interest in
the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or
otherwise; and
16. Such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants of the Company and representatives of the
Underwriters (including the Underwriters' counsel) at which the
contents of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
(except as and to the extent stated in paragraphs 5, 6 and 14 above),
on the basis of the foregoing nothing has come to the attention of such
counsel that causes such counsel to believe that the Registration
Statement or any amendment thereto at the time such Registration
Statement or amendment became effective 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, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at the time of purchase
or the additional time of purchase, as the case may be, 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, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial
B-3
statements and schedules and other financial and accounting data,
including statistical information derived from such financial
statements, schedules and data, included in the Registration Statement
or the Prospectus).
B-4
EXHIBIT C
OPINION OF MILLEN, WHITE, XXXXXX & XXXXXXXX
1. The statements in the Registration Statement and the Prospectus
relating to patents or proprietary rights (collectively, the
"Intellectual Property Information"), at the time such Registration
Statement became effective, as of the date of the Prospectus and at the
time of purchase or the additional time of purchase, as the case may
be, are accurate and complete statements or summaries of the matters
therein set forth in all material respects and present fairly the
information therein set forth; nothing has come to such counsel's
attention that causes such counsel to believe that the Intellectual
Property Information of the Registration Statement at the time such
Registration Statement became effective 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, or that the Prospectus or any supplement thereto, at the
date of such Prospectus or such supplement and at the time of purchase
or the additional time of purchase, as the case may be, contained an
untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2. To such counsel's knowledge, (i) there are no legal or governmental
proceedings pending relating to patent rights, trade secrets,
trademarks, service marks or other proprietary information or materials
of the Company, other than normal prosecution proceedings before
governmental agencies responsible for granting patent and trademark
rights, and (ii) no such proceedings are threatened or contemplated by
governmental authorities or others.
3. Such counsel does not know of any contracts or other documents,
relating to the Company's patents, trade secrets, trademarks, service
marks or other proprietary information or materials, required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which have not been
so described or filed.
4. To such counsel's knowledge, (i) the Company is not infringing, or
otherwise violating, and upon commercialization of the product
candidates of the Company described in the Registration Statement and
the Prospectus the Company would not infringe or otherwise violate, any
patents, trade secrets, trademarks, service marks or other proprietary
information or materials of others, and (ii) there are no infringements
by others of any of the Company's patents, trade secrets, trademarks,
service marks or other proprietary information or materials which in
such counsel's judgment could affect materially the use thereof by the
Company.
5. Such counsel has no knowledge of any facts which would preclude the
Company from having valid license rights or clear title to the patents
referenced in the Registration Statement and the Prospectus; such
counsel has no knowledge that the Company lacks or will be unable to
obtain any rights or licenses to use all patents and other material
intangible property and assets necessary to conduct the business now
conducted or proposed to be conducted by the Company as described in
the Registration Statement and the Prospectus, except as described in
the Registration Statement and the Prospectus; such counsel is
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unaware of any facts which form a basis for a finding of
unenforceability or invalidity of any of the Company's patents and
other material intellectual property and assets.
6. Such counsel is not aware of any material fact with respect to the
patent applications of the Company presently on file that (i) would
preclude the issuance of patents with respect to such applications, or
(ii) would lead such counsel to conclude that such patents, when
issued, would not be valid and enforceable in accordance with
applicable regulations.
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EXHIBIT D
OFFICERS' CERTIFICATE
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under this Agreement
as are to be performed at or before the time of purchase and at or
before the additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (g) and (h) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in
the Registration Statement and the Prospectus fairly present the
financial condition, results of operations and cash flows of the
Company as of, and for, the periods presented in the Registration
Statement.
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