Exhibit 1.1
3,285,715 SHARES
ENZO BIOCHEM, INC.
COMMON STOCK
PLACEMENT AGENT AGREEMENT
December 14, 2006
LAZARD CAPITAL MARKETS LLC
30 Rockefeller Plaza
New York, New York 10020
Dear Sirs:
1. INTRODUCTION. ENZO BIOCHEM, INC., a New York corporation (the
"COMPANY"), proposes to issue and sell to the purchasers, pursuant to the terms
of this Placement Agent Agreement (this "AGREEMENT") and the Subscription
Agreements in the form of EXHIBIT A attached hereto (the "SUBSCRIPTION
AGREEMENTS") entered into with the purchasers identified therein (each a
"PURCHASER" and collectively, the "PURCHASERS"), up to an aggregate of 3,285,715
shares of common stock, $0.01 par value per share (the "COMMON STOCK") of the
Company. The aggregate of 3,285,715 shares so proposed to be sold is hereinafter
referred to as the "STOCK." The Company hereby confirms its agreement with
Lazard Capital Markets LLC to act as Placement Agent ("LCM," or the "PLACEMENT
AGENT") in accordance with the terms and conditions hereof.
2. AGREEMENT TO ACT AS PLACEMENT AGENT; PLACEMENT OF SECURITIES.
On the basis of the representations, warranties and agreements of the Company
herein contained, and subject to all the terms and conditions of this Agreement:
2.1 The Company hereby authorizes the Placement Agent to
act as its exclusive agent to solicit offers for the purchase of all or
part of the Stock from the Company in connection with the proposed
offering of the Stock (the "OFFERING"). Until the Closing Date (as
defined in SECTION 4 hereof), the Company shall not, without the prior
written consent of the Placement Agent, solicit or accept offers to
purchase Stock otherwise than through the Placement Agent. LCM may
utilize the expertise of Lazard Freres & Co. LLC in connection with
LCM's placement agent activities.
2.2 The Placement Agent agrees, as agent of the Company,
to use its commercially reasonable efforts to solicit offers to
purchase the Stock from the Company on the terms and subject to the
conditions set forth in the Prospectus (as defined below). The
Placement Agent shall use commercially reasonable efforts to assist the
Company in obtaining performance by each Purchaser whose offer to
purchase Stock has been solicited by the Placement Agent and accepted
by the Company, but the Placement Agent shall not, except as otherwise
provided in this Agreement, be obligated to disclose the identity of
any potential purchaser or have any liability to the Company in the
event any such purchase is not consummated for any reason. Under no
circumstances will the Placement Agent be obligated to underwrite or
purchase any Stock for its own account and, in soliciting purchases of
Stock, the Placement Agent shall act solely as the Company's agent and
not as principal. Notwithstanding the foregoing and except as otherwise
provided in SECTION 2.3, it is understood and agreed that the Placement
Agent (or its affiliates) may, solely at its discretion and
without any obligation to do so, purchase Stock as principal on the
same terms as the other Purchasers.
2.3 Subject to the provisions of this SECTION 2, offers
for the purchase of Stock may be solicited by the Placement Agent as
agent for the Company at such times and in such amounts as the
Placement Agent deems advisable. The Placement Agent shall communicate
to the Company, orally or in writing, each reasonable offer to purchase
Stock received by it as agent of the Company. The Company shall have
the sole right to accept offers to purchase the Stock and may reject
any such offer, in whole or in part. The Placement Agent shall have the
right, in its discretion reasonably exercised, without notice to the
Company, to reject any offer to purchase Stock received by it, in whole
or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein.
2.4 The Stock is being sold to the Purchasers at a price
of $14.00 per share. The purchases of the Stock by the Purchasers shall
be evidenced by the execution of Subscription Agreements by each of the
Purchasers and the Company.
2.5 As compensation for services rendered, on the Closing
Date (as defined in SECTION 4 hereof), the Company shall pay to the
Placement Agent by wire transfer of immediately available funds to an
account or accounts designated by the Placement Agent, an aggregate
amount equal to five and one half percent (5.5%) of the gross proceeds
received by the Company from the sale of the Stock on such Closing
Date.
2.6 No Stock which the Company has agreed to sell
pursuant to this Agreement shall be deemed to have been purchased and
paid for, or sold by the Company, until such Stock shall have been
delivered to the Purchaser thereof against payment by such Purchaser.
If the Company shall default in its obligations to deliver Stock to a
Purchaser whose offer it has accepted, the Company shall indemnify and
hold the Placement Agent harmless against any loss, claim, damage or
expense arising from or as a result of such default by the Company in
accordance with the procedures set forth in Section 8(c) herein.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Placement Agent and the
Purchasers that:
(a) The Company has prepared and filed in conformity with
the requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and published rules and regulations thereunder (the
"RULES AND REGULATIONS") adopted by the Securities and Exchange
Commission (the "COMMISSION") a "shelf" Registration Statement (as
hereinafter defined) on Form S-3 (File No. 333-138417), which became
effective as of December 8, 2006 (the "EFFECTIVE DATE"), including a
base prospectus relating to the Stock (the "BASE PROSPECTUS"), and such
amendments and supplements thereto as may have been required to the
date of this Agreement. The term "REGISTRATION STATEMENT" as used in
this Agreement means the registration statement (including all
exhibits, financial schedules and all documents and information deemed
to be a part of the Registration Statement pursuant to Rule 430A under
the Securities Act), as amended and/or supplemented to the date of this
Agreement, including the Base Prospectus. The Registration Statement is
effective under the Securities Act and no stop order preventing or
suspending the effectiveness of the Registration Statement or
suspending or preventing the use of the Prospectus has been issued by
the Commission and no proceedings for that purpose have been instituted
or, to the knowledge of the Company, are threatened by the Commission.
The Company, if required by the Rules and Regulations of the
Commission, will file the Prospectus (as defined below), with the
Commission pursuant to Rule 424(b) of the Rules and Regulations. The
term "PROSPECTUS" as used in this Agreement means the Prospectus, in
the form in which it is to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, or, if the Prospectus is not
to be filed with the Commission pursuant to Rule 424(b), the Prospectus
in the form included as part of the Registration Statement as of the
Effective Date, except that if any revised prospectus or
prospectus supplement shall be provided to the Placement Agent by the
Company for use in connection with the offering and sale of the Stock
which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the
Company pursuant to Rule 424(b) of the Rules and Regulations), the term
"PROSPECTUS" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Placement Agent for such use. Any preliminary
prospectus or prospectus subject to completion included in the
Registration Statement or filed with the Commission pursuant to Rule
424 under the Securities Act is hereafter called a "PRELIMINARY
PROSPECTUS." Any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), on or before the last to
occur of the Effective Date, the date of the Preliminary Prospectus, or
the date of the Prospectus, and any reference herein to the terms
"amend," "amendment," or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include (i) the filing of any document under the
Exchange Act after the Effective Date, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, which is
incorporated by reference and (ii) any such document so filed. If the
Company has filed an abbreviated registration statement to register
additional Stock pursuant to Rule 462(b) under the Rules (the "462(b)
REGISTRATION STATEMENT"), then any reference herein to the Registration
Statement shall also be deemed to include such 462(b) Registration
Statement.
(b) As of the Applicable Time (as defined below) and as
of the Closing Date, neither (i) any General Use Free Writing
Prospectus (as defined below) issued at or prior to the Applicable
Time, and the Pricing Prospectus (as defined below) and the information
included on SCHEDULE A hereto, all considered together (collectively,
the "GENERAL DISCLOSURE PACKAGE"), nor (ii) any individual Limited Use
Free Writing Prospectus (as defined below), when considered together
with the General Disclosure Package, included or will include, any
untrue statement of a material fact or omitted or as of the Closing
Date will omit, to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to information contained in or omitted
from any Issuer Free Writing Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company by the
Placement Agent specifically for inclusion therein, which information
the parties hereto agree is limited to the Placement Agent's
Information (as defined in SECTION 17). As used in this PARAGRAPH (b)
and elsewhere in this Agreement:
"APPLICABLE TIME" means 7:00 P.M., New York time, on the date of this
Agreement.
"PRICING PROSPECTUS" means the Preliminary Prospectus, if any, and the
Base Prospectus, each as amended and supplemented immediately prior to
the Applicable Time, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof.
"ISSUER FREE WRITING PROSPECTUS" means any "issuer free writing
prospectus," as defined in Rule 433(h) under the Securities Act
relating to the Stock in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form retained in
the Company's records pursuant to Rule 433(g) under the Securities Act.
"GENERAL USE FREE WRITING PROSPECTUS" means any Issuer Free Writing
Prospectus that is identified on SCHEDULE A to this Agreement.
"LIMITED USE FREE WRITING PROSPECTUSES" means any Issuer Free Writing
Prospectus that is not a General Use Free Writing Prospectus.
(c) No order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus relating to the Offering has been issued by the Commission,
and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act has been instituted or threatened by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Securities Act and
the Rules and Regulations, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to
information contained in or omitted from any Preliminary Prospectus, in
reliance upon, and in conformity with, written information furnished to
the Company by the Placement Agent specifically for inclusion therein,
which information the parties hereto agree is limited to the Placement
Agent's Information (as defined in SECTION 17).
(d) At the time the Registration Statement became
effective, at the date of this Agreement and at the Closing Date, the
Registration Statement conformed and will conform in all material
respects to the requirements of the Securities Act and the Rules and
Regulations and did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus, at the time the Prospectus was issued and at the Closing
Date, conformed and will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the foregoing representations and
warranties in this PARAGRAPH (d) shall not apply to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by the Placement Agent
specifically for inclusion therein, which information the parties
hereto agree is limited to the Placement Agent's Information (as
defined in SECTION 17).
(e) Each Issuer Free Writing Prospectus, if any, as of
its issue date and at all subsequent times through the completion of
the public offer and sale of the Stock or until any earlier date that
the Company notified or notifies the Placement Agent as described in
SECTION 5(e), did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, Pricing Prospectus or the
Prospectus, including any document incorporated by reference therein
and any prospectus supplement deemed to be a part thereof that has not
been superseded or modified, or includes an untrue statement of a
material fact or omitted or would omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon, and in conformity with, written information furnished
to the Company by the Placement Agent specifically for inclusion
therein, which information the parties hereto agree is limited to the
Placement Agent's Information (as defined in SECTION 17).
(f) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and none of such documents contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the
requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) The Company has not, directly or indirectly,
distributed and will not distribute any offering material in connection
with the Offering other than any Preliminary Prospectus, the Prospectus
and other materials, if any, permitted under the Securities Act and
consistent with SECTION 5(b) below. The Company will file with the
Commission all Issuer Free Writing Prospectuses, if any, in the time
and manner required under Rule 433(d) under the Securities Act.
(h) The Company and each of its Subsidiaries (as defined
below) has been duly organized and is validly existing as a corporation
or other legal entity in good standing (or the foreign equivalent
thereof) under the laws of its respective jurisdiction of organization.
The Company and each of its Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation or other
legal entity in each jurisdiction in which its respective ownership or
lease of property or the conduct of its respective business requires
such qualification and has all power and authority (corporate or other)
necessary to own or hold its respective properties and to conduct the
business in which it is engaged, except where the failure to so qualify
or have such power or authority (i) would not have, singularly or in
the aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, assets or business of the Company
and its Subsidiaries, or (ii) impair in any material respect the
ability of the Company to perform its obligations under this Agreement
or to consummate any transactions contemplated by the Agreement, the
General Disclosure Package or the Prospectus (any such effect as
described in clauses (i) or (ii), a "MATERIAL ADVERSE EFFECT"). The
Company owns or controls, directly or indirectly, only the following
corporations, partnerships, limited liability partnerships, limited
liability companies, associations or other entities: Enzo Clinical
Labs, Inc., a New York corporation, Enzo Life Sciences, Inc., a New
York corporation, Enzo Therapeutics, Inc., a New York corporation and
Enzo Realty, LLC, a New York limited liability company, each, a
"SUBSIDIARY" and together "SUBSIDIARIES".
(i) The Company has the full right, power and authority
to enter into this Agreement, each of the Subscription Agreements and
that certain Escrow Agreement (the "ESCROW AGREEMENT") dated as of the
date hereof by and among the Company, the Placement Agent and the
escrow agent named therein, and to perform and to discharge its
obligations hereunder and thereunder; and each of this Agreement and
each of the Subscription Agreements has been duly authorized, executed
and delivered by the Company, and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms.
(j) The Stock to be issued and sold by the Company to the
Purchasers hereunder and under the Subscription Agreements has been
duly and validly authorized and, when issued and delivered against
payment therefor as provided herein and the Subscription Agreements,
will be duly and validly issued, fully paid and nonassessable and free
of any preemptive or similar rights and will conform to the description
thereof contained in the General Disclosure Package and the Prospectus.
(k) The Company has an authorized capitalization as set
forth in the Pricing Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, have been issued in
compliance with federal and state securities laws, and conform to the
description thereof contained in the General Disclosure Package and the
Prospectus. As of October 31, 2006, there were 32,282,500 shares of
Common Stock issued and outstanding and no shares of Preferred Stock,
par value $0.01 of the Company issued and outstanding and 2,866,576
shares of Common Stock were issuable upon the exercise of all options,
warrants and convertible securities outstanding as of
such date. Since such date, the Company has not issued any securities,
other than Common Stock of the Company issued pursuant to the exercise
of stock options previously outstanding under the Company's stock
option plans or the issuance of restricted Common Stock pursuant to
employee stock purchase plans. None of the outstanding shares of Common
Stock was issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding shares of
capital stock, options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock
of the Company or any of its Subsidiaries other than those described
above or accurately described in the General Disclosure Package. The
description of the Company's stock option, stock bonus and other stock
plans or arrangements, and the options or other rights granted
thereunder, as described in the General Disclosure Package and the
Prospectus, accurately and fairly present the information required to
be shown with respect to such plans, arrangements, options and rights.
(l) All the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable and, except to the extent set forth in the General
Disclosure Package or the Prospectus, are owned by the Company directly
or indirectly through one or more wholly-owned subsidiaries, free and
clear of any claim, lien, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party.
(m) The execution, delivery and performance of this
Agreement, the Subscription Agreements and the Escrow Agreement by the
Company, the issue and sale of the Stock by the Company and the
consummation of the transactions contemplated hereby and thereby will
not (with or without notice or lapse of time or both) conflict with or
result in a breach or violation of any of the terms or provisions of,
constitute a default under, give rise to any right of termination or
other right or the cancellation or acceleration of any right or
obligation or loss of a benefit under, or give rise to the creation or
imposition of any lien, encumbrance, security interest, claim or charge
upon any property or assets of the Company or any Subsidiary pursuant
to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws (or analogous governing
instruments, as applicable) of the Company or any of its Subsidiaries
or any law, statute, rule, regulation, judgment, order or decree of any
court or governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of
their properties or assets.
(n) Except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws, the National
Association of Securities Dealers, Inc. and the New York Stock Exchange
(the "NYSE") in connection with the offering and sale of the Stock by
the Company, no consent, approval, authorization or order of, or
filing, qualification or registration with, any court or governmental
agency or body, foreign or domestic, which has not been made, obtained
or taken and is not in full force and effect, is required for the
execution, delivery and performance of this Agreement, the Subscription
Agreements and the Escrow Agreement by the Company, the offer or sale
of the Stock or the consummation of the transactions contemplated
hereby or thereby.
(o) Ernst & Young LLP, who have certified certain
financial statements and related schedules included or incorporated by
reference in the Registration Statement, the General Disclosure Package
and the Prospectus, and have audited the Company's internal control
over financial reporting and management's assessment thereof, is an
independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and the Public
Company Accounting Oversight Board (United States) (the "PCAOB"). Ernst
& Young LLP have not been engaged by the Company to perform any "
prohibited activities" (as defined in Section 10A of the Exchange Act).
(p) The financial statements, together with the related
notes and schedules, included or incorporated by reference in the
General Disclosure Package, the Prospectus and in the Registration
Statement fairly present in all material respects the financial
position and the results of operations and changes in financial
position of the Company and its consolidated subsidiaries and other
consolidated entities at the respective dates or for the respective
periods therein specified. Such statements and related notes and
schedules have been prepared in accordance with the generally accepted
accounting principles in the United States ("GAAP") applied on a
consistent basis throughout the periods involved except as may be set
forth in the related notes included or incorporated by reference in the
General Disclosure Package. The financial statements, together with the
related notes and schedules, included or incorporated by reference in
the General Disclosure Package and the Prospectus comply in all
material respects with the Securities Act, the Exchange Act, and the
Rules and Regulations and the rules and regulations under the Exchange
Act. No other financial statements or supporting schedules or exhibits
are required by the Securities Act or the Rules and Regulations to be
described, or included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus. There is
no pro forma or as adjusted financial information which is required to
be included in the Registration Statement, the General Disclosure
Package, or and the Prospectus or a document incorporated by reference
therein in accordance with the Securities Act and the Rules and
Regulations which has not been included or incorporated as so required.
The pro forma and pro forma as adjusted financial information and the
related notes included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus have been
properly compiled and prepared in accordance with the applicable
requirements of the Securities Act and the Rules and Regulations and
present fairly the information shown therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(q) Neither the Company nor any of its Subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the General Disclosure
Package, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
General Disclosure Package; and, since such date, there has not been
any change in the capital stock or long-term debt of the Company or any
of its Subsidiaries, or any material adverse changes, or any
development involving a prospective material adverse change, in or
affecting the business, assets, general affairs, management, financial
position, prospects, stockholders' equity or results of operations of
the Company and its Subsidiaries, otherwise than as set forth or
contemplated in the General Disclosure Package.
(r) Except as set forth in the General Disclosure
Package, there is no legal or governmental action, suit, claim or
proceeding pending to which the Company or any of its Subsidiaries is a
party or of which any property or assets of the Company or any of its
Subsidiaries is the subject which is required to be described in the
Registration Statement, the General Disclosure Package or the
Prospectus or a document incorporated by reference therein and is not
described therein, or which, singularly or in the aggregate, if
determined adversely to the Company or any of its Subsidiaries, could
have a Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(s) Neither the Company nor any of its Subsidiaries is in
(i) violation of its charter or by-laws (or analogous governing
instrument, as applicable), (ii) default in any respect, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
property or assets is subject or (iii) violation in any respect of any
law, ordinance, governmental rule, regulation or court order, decree or
judgment to which it or its property or assets may be subject except,
in the case of clauses (ii) and (iii) of this paragraph (s), for any
violations or defaults which, singularly or in the aggregate, would not
have a Material Adverse Effect.
(t) The Company and each of its Subsidiaries possess all
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate local, state,
federal or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of its respective properties or the conduct
of its respective businesses as described in the General Disclosure
Package and the Prospectus (collectively, the "GOVERNMENTAL PERMITS")
except where any failures to possess or make the same, singularly or in
the aggregate, would not have a Material Adverse Effect. The Company
and its Subsidiaries is in compliance with all such Governmental
Permits; all such Governmental Permits are valid and in full force and
effect, except where the validity or failure to be in full force and
effect would not, singularly or in the aggregate, have a Material
Adverse Effect. All such Governmental Permits are free and clear of any
restriction or condition that are in addition to, or materially
different from those normally applicable to similar licenses,
certificates, authorizations and permits. Neither the Company nor any
subsidiary has received notification of any revocation or modification
(or proceedings related thereto) of any such Governmental Permit and
the Company has no reason to believe that any such Governmental Permit
will not be renewed.
(u) Neither the Company nor any of its Subsidiaries is
or, after giving effect to the offering of the Stock and the
application of the proceeds thereof as described in the General
Disclosure Package and the Prospectus, will become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder.
(v) Neither the Company, its Subsidiaries nor, to the
Company's knowledge, any of the Company's or its Subsidiaries'
officers, directors or affiliates has taken or will take, directly or
indirectly, any action designed or intended to stabilize or manipulate
the price of any security of the Company, or which caused or resulted
in, or which might in the future reasonably be expected to cause or
result in, stabilization or manipulation of the price of any security
of the Company.
(w) The Company and its Subsidiaries own or possess the
right to use all patents, trademarks, trademark registrations, service
marks, service mark registrations, trade names, copyrights, licenses,
inventions, software, databases, know-how, Internet domain names, trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, and other intellectual
property (collectively, "INTELLECTUAL PROPERTY") necessary to carry on
their respective businesses as currently conducted, and as proposed to
be conducted and described in the General Disclosure Package and the
Prospectus, and the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the Company and
its Subsidiaries with respect to the foregoing except for those that
could not have a Material Adverse Effect. The Intellectual Property
licenses described in the General Disclosure Package and the Prospectus
are valid, binding upon, and enforceable by or against the parties
thereto in accordance to their terms. The Company and each of its
Subsidiaries have complied in all material respects with, and are not,
to the Company's knowledge, in breach nor have received any asserted or
threatened claim of breach of, any Intellectual Property license, and
the Company has
no knowledge of any breach or anticipated breach by any other person to
any Intellectual Property license. The Company's and each of its
Subsidiaries' businesses as now conducted and as proposed to be
conducted do not and will not, to the Company's knowledge, infringe or
conflict with any patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other Intellectual Property or
franchise right of any person. No claim has been received by the
Company that makes against the Company or any of its Subsidiaries an
allegation of infringement by the Company or any of its Subsidiaries of
any patent, trademark, service mark, trade name, copyright, trade
secret, license in or other intellectual property right or franchise
right of any person. The Company and each of its Subsidiaries have
taken all reasonable steps to protect, maintain and safeguard its
rights in all Intellectual Property, including the execution of
appropriate nondisclosure and confidentiality agreements. The
consummation of the transactions contemplated by this Agreement will
not, to the Company's knowledge, result in the loss or impairment of or
payment of any additional amounts with respect to, nor require the
consent of any other person in respect of, the Company's or any of its
Subsidiaries' right to own, use, or hold for use any of the
Intellectual Property as owned, used or held for use in the conduct of
the businesses as currently conducted. The Company and each of its
Subsidiaries has at all times taken reasonable steps to comply with all
applicable laws relating to privacy, data protection, and the
collection and use of personal information collected, used, or held for
use by the Company and any of its Subsidiaries in the conduct of the
Company's and its Subsidiaries businesses. No claims have been received
by the Company or any of its Subsidiaries alleging a violation of any
person's privacy or personal information or data rights and the
consummation of the transactions contemplated hereby will not, to the
Company's knowledge, breach or otherwise cause any violation of any law
related to privacy, data protection, or the collection and use of
personal information collected, used, or held for use by the Company or
any of its Subsidiaries in the conduct of the Company's or any of its
Subsidiaries' businesses. The Company and each of its Subsidiaries
takes reasonable measures to ensure that such information is protected
against unauthorized access, use, modification, or other misuse.
(x) Except as set forth in the General Disclosure
Package, there is no legal or governmental action, suit, claim or
proceeding pending to which the Company or any of its Subsidiaries is a
party or of which any property or assets of the Company or any of its
Subsidiaries is the subject, including any proceeding before the United
States Food and Drug Administration of the U.S. Department of Health
and Human Services ("FDA") or comparable federal, state, local or
foreign governmental bodies (it being understood that the interaction
between the Company and the FDA and such comparable governmental bodies
relating to the clinical development and product approval process shall
not be deemed proceedings for purposes of this representation), which
is required to be described in the Registration Statement, the General
Disclosure Package or the Prospectus or a document incorporated by
reference therein and is not described therein, or which, singularly or
in the aggregate, if determined adversely to the Company or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse
Effect or prevent the consummation of the transactions contemplated
hereby; and to the Company's Knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others. The Company and its Subsidiaries is in compliance with all
applicable federal, state, local and foreign laws, regulations, orders
and decrees governing its business as prescribed by the FDA, or any
other federal, state or foreign agencies or bodies with jurisdiction
over the activities of the Company or its Subsidiaries engaged in the
regulation of pharmaceuticals or biohazardous substances or materials,
except where noncompliance would not, singly or in the aggregate, have
a Material Adverse Effect. All preclinical and clinical studies
conducted by or on behalf of the Company or its Subsidiaries to support
approval for commercialization of the Company's or its Subsidiaries'
products have been conducted by the Company or its Subsidiaries, or to
the Company's knowledge by third parties, in compliance with all
applicable federal, state, provincial or foreign laws, rules, orders
and regulations, except for
such failure or failures to be in compliance as could not reasonably be
expected to have, singly or in the aggregate, a Material Adverse
Effect.
(y) The Company and each of its Subsidiaries has good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real or personal property which are
material to the business of the Company and its Subsidiaries, free and
clear of all liens, encumbrances, security interests, claims and
defects that do not, singularly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
Subsidiaries; and all of the leases and subleases material to the
business of the Company and its Subsidiaries, and under which the
Company or any of its Subsidiaries holds properties described in the
General Disclosure Package and the Prospectus, are in full force and
effect, and neither the Company nor any Subsidiary has received any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any Subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such Subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(z) No labor disturbance by the employees of the Company
or any of its Subsidiaries exists or, to the best of the Company's
knowledge, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or its
Subsidiaries' principal suppliers, manufacturers, customers or
contractors, that could reasonably be expected, singularly or in the
aggregate, to have a Material Adverse Effect. The Company is not aware
that any key employee or significant group of employees of the Company
or any Subsidiary plans to terminate employment with the Company or any
such Subsidiary.
(aa) No "prohibited transaction" (as defined in Section
406 of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "CODE")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the thirty (30)-day notice requirement under Section 4043 of
ERISA has been waived) has occurred or could reasonably be expected to
occur with respect to any employee benefit plan of the Company or any
of its Subsidiaries which could, singularly or in the aggregate, have a
Material Adverse Effect. Each employee benefit plan of the Company or
any of its Subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code. The Company and its
Subsidiaries have not incurred and could not reasonably be expected to
incur liability under Title IV of ERISA with respect to the termination
of, or withdrawal from, any pension plan (as defined in ERISA). Each
pension plan for which the Company or any of its Subsidiaries would
have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified, and nothing has occurred, whether
by action or by failure to act, which could, singularly or in the
aggregate, cause the loss of such qualification.
(bb) The Company and its Subsidiaries are in compliance
with all foreign, federal, state and local rules, laws and regulations
relating to the use, treatment, storage and disposal of hazardous or
toxic substances or waste and protection of health and safety or the
environment which are applicable to their businesses ("ENVIRONMENTAL
LAWS"), except where the failure to comply would not, singularly or in
the aggregate, have a Material Adverse Effect. There has been no
storage, generation, transportation, handling, treatment, disposal,
discharge, emission, or other release of any kind of toxic or other
wastes or other hazardous substances by, due to, or caused by the
Company or any of its Subsidiaries (or, to the Company's knowledge, any
other entity for whose acts or omissions the Company or any of its
Subsidiaries is or may otherwise be liable) upon any of the property
now or previously owned or leased by the Company or any of its
Subsidiaries, or upon any other property, in violation of any law,
statute, ordinance, rule, regulation, order, judgment, decree or permit
or which would, under any law, statute, ordinance,
rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any violation
or liability which would not have, singularly or in the aggregate with
all such violations and liabilities, a Material Adverse Effect; and
there has been no disposal, discharge, emission or other release of any
kind onto such property or into the environment surrounding such
property of any toxic or other wastes or other hazardous substances
with respect to which the Company has knowledge, except for any such
disposal, discharge, emission, or other release of any kind which would
not have, singularly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect. In the ordinary course of
business, the Company and its Subsidiaries conduct periodic reviews of
the effect of Environmental Laws on their business and assets, in the
course of which they identify and evaluate associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or Governmental Permits issued thereunder, any
related constraints on operating activities and any potential
liabilities to third parties). On the basis of such reviews, the
Company and its Subsidiaries have reasonably concluded that such
associated costs and liabilities would not have, singularly or in the
aggregate, a Material Adverse Effect.
(cc) The Company and its Subsidiaries, each (i) has timely
filed all necessary federal, state, local and foreign tax returns, and
all such returns were true, complete and correct, (ii) has paid all
federal, state, local and foreign taxes, assessments, governmental or
other charges due and payable for which it is liable, including,
without limitation, all sales and use taxes and all taxes which the
Company or any of its subsidiaries is obligated to withhold from
amounts owing to employees, creditors and third parties, and (iii) does
not have any tax deficiency or claims outstanding or assessed or, to
the best of its knowledge, proposed against any of them, except those,
in each of the cases described in clauses (i), (ii) and (iii) of this
PARAGRAPH (cc), that would not, singularly or in the aggregate, have a
Material Adverse Effect. The Company and its Subsidiaries, each has not
engaged in any transaction that could reasonably be characterized as a
corporate tax shelter by the Internal Revenue Service or any other
taxing authority. The accruals and reserves on the books and records of
the Company and its Subsidiaries in respect of tax liabilities for any
taxable period not yet finally determined are adequate to meet any
assessments and related liabilities for any such period, and since July
31, 2006, the Company and its Subsidiaries each has not incurred any
liability for taxes other than in the ordinary course.
(dd) The Company and each of its Subsidiaries carries, or
is covered by, insurance provided by recognized, financially sound and
reputable institutions with policies in such amounts and covering such
risks as is adequate for the conduct of their respective businesses and
the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries. The
Company has no reason to believe that it or any Subsidiary will not be
able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not result in a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries have
been denied any insurance coverage that they have sought or for which
they have applied.
(ee) The Company and its Subsidiaries each maintains a
system of internal accounting and other controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with GAAP 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. Except as described in the General Disclosure Package,
since the end of the Company's most recent audited fiscal year, there
as been (A) no material weakness in the
Company's internal control over financial reporting (whether or not
remediated) and (B) no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over
financial reporting.
(ff) The minute books of the Company and each of its
Subsidiaries have been made available to the Placement Agent and
counsel for the Placement Agent, and such books (i) contain a complete
summary, in all material respects, of all meetings and actions of the
board of directors (including each board committee) and shareholders of
the Company (or analogous governing bodies and interest holders, as
applicable), and each of its Subsidiaries since the time of its
respective incorporation or organization through the date of the latest
meeting and action, and (ii) accurately in all material respects
reflect all transactions referred to in such minutes.
(gg) There is no franchise, lease, contract, agreement or
document required by the Securities Act or by the Rules and Regulations
to be described in the General Disclosure Package and in the Prospectus
or a document incorporated by reference therein or to be filed as an
exhibit to the Registration Statement or a document incorporated by
reference therein which is not described or filed therein as required;
and all descriptions of any such franchises, leases, contracts,
agreements or documents contained in the Registration Statement or in a
document incorporated by reference therein are accurate and complete
descriptions of such documents in all material respects. Other than as
described in the General Disclosure Package, no such franchise, lease,
contract or agreement has been suspended or terminated for convenience
or default by the Company or any of its Subsidiaries or any of the
other parties thereto, and neither the Company nor any of its
Subsidiaries has received notice nor does the Company have any other
knowledge of any such pending or threatened suspension or termination,
except for such pending or threatened suspensions or terminations that
would not reasonably be expected to, singularly or in the aggregate,
have a Material Adverse Effect.
(hh) No relationship, direct or indirect, exists between
or among the Company and any of its Subsidiaries on the one hand, and
the directors, officers, stockholders (or analogous interest holders),
customers or suppliers of the Company or any of its Subsidiaries or any
of their affiliates on the other hand, which is required to be
described in the General Disclosure Package and the Prospectus or a
document incorporated by reference therein and which is not so
described.
(ii) No person or entity has the right to require
registration of shares of Common Stock or other securities of the
Company or any of its Subsidiaries because of the filing or
effectiveness of the Registration Statement or otherwise, except for
persons and entities who have expressly waived such right in writing or
who have been given timely and proper written notice and have failed to
exercise such right within the time or times required under the terms
and conditions of such right, if any. Except as described in the
General Disclosure Package, there are no persons with registration
rights or similar rights to have any securities registered by the
Company or any of its Subsidiaries under the Securities Act.
(jj) Neither the Company nor any of its Subsidiaries own
any "margin securities" as that term is defined in Regulation U of the
Board of Governors of the Federal Reserve System (the "FEDERAL RESERVE
BOARD"), and none of the proceeds of the sale of the Stock will be
used, directly or indirectly, for the purpose of purchasing or carrying
any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Stock to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(kk) Neither the Company nor any of its Subsidiaries is a
party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Company or the Placement
Agent for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Stock or any transaction
contemplated by this Agreement, the Registration Statement, the General
Disclosure Package or the Prospectus.
(ll) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in either the General Disclosure Package or the Prospectus
has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(mm) The Company is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act. The Common Stock is registered
pursuant to Section 12(b) of the Exchange Act and is listed on the
NYSE, and the Company has taken no action designed to, or reasonably
likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from
the NYSE, nor has the Company received any notification that the
Commission or the National Association of Securities Dealers, Inc.
("NASD") is contemplating terminating such registration or listing. No
consent, approval, authorization or order of, filing, notification or
registration with, the NYSE is required for the listing and trading of
the Stock on the NYSE except as otherwise given or obtained.
(nn) The Company is in compliance with all applicable
provisions of the Sarbanes-Oxley Act of 2002 and all rules and
regulations promulgated thereunder or implementing the provisions
thereof (the "SARBANES-OXLEY ACT").
(oo) The Company is in compliance with all material
applicable corporate governance requirements set forth in the NYSE
Rules.
(pp) Neither the Company nor any of its Subsidiaries nor,
to the best of the Company's knowledge, any employee or agent of the
Company or any Subsidiary, has made any contribution or other payment
to any official of, or candidate for, any federal, state, local or
foreign office in violation of any law (including the Foreign Corrupt
Practices Act of 1977, as amended) or of the character required to be
disclosed in the Registration Statement, the General Disclosure Package
or the Prospectus or a document incorporated by reference therein.
(qq) There are no transactions, arrangements or other
relationships between and/or among the Company, any of its affiliates
(as such term is defined in Rule 405 of the Securities Act) and any
unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity that could
reasonably be expected to materially affect the Company's or any of its
Subsidiaries' liquidity or the availability of or requirements for
their capital resources required to be described in the General
Disclosure Package and the Prospectus or a document incorporated by
reference therein which have not been described as required.
(rr) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of
business) or guarantees or indebtedness by the Company or any of its
Subsidiaries to or for the benefit of any of the officers or directors
of the Company, any of its Subsidiaries or any of their respective
family members, except as disclosed in the Registration Statement, the
General Disclosure Package or the Prospectus.
(ss) The statistical and market related data included in
the Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and such data agree with the
sources from which they are derived.
(tt) The operations of the Company and its Subsidiaries
are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations
thereunder (collectively, the "MONEY LAUNDERING LAWS"), and no action,
suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its Subsidiaries with respect to the Money Laundering Laws is
pending, or to the best knowledge of the Company, threatened.
(uu) Neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee
or affiliate of the Company or any of its Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department ("OFAC"); and the
Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds
to any Subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
(vv) Neither the Company nor any Subsidiary nor any of
their affiliates (within the meaning of NASD Conduct Rule
2720(b)(1)(a)) directly or indirectly controls, are controlled by, or
is under common control with, or is an associated person (within the
meaning of Article I, Section 1(ee) of the By-laws of the NASD) of, any
member firm of the NASD.
(ww) The Company satisfies the pre-1992 eligibility
requirements for the use of a registration statement on Form S-3 in
connection with the Offering contemplated hereby (the pre-1992
eligibility requirements for the use of the registration statement on
Form S-3 include (i) having a non-affiliate, public common equity float
of at least $150 million or a non-affiliate, public common equity float
of at least $100 million and annual trading volume of at least three
million shares and (ii) having been subject to the Exchange Act
reporting requirements for a period of 36 months).
(xx) No approval of the shareholders of the Company under
the rules and regulations of NYSE is required for the Company to issue
and deliver to the Purchasers the Stock.
Any certificate signed by or on behalf of the Company and delivered to the
Placement Agent or to counsel for the Placement Agent specifically pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company to the Placement Agent and the Purchasers as to the matters covered
thereby.
4. THE CLOSING. The time and date of closing and delivery of the
documents required to be delivered to the Placement Agent pursuant to SECTIONS 5
and 7 hereof shall be at 10:00 A.M., New York time, on December 20, 2006 (the
"CLOSING DATE") at the office of Greenberg Traurig, LLP, MetLife Building, 200
Park Avenue, New York, NY 10166.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Placement Agent and the Purchasers:
(a) To prepare the Prospectus in a form approved by the
Placement Agent containing information previously omitted at the time
of effectiveness of the Registration Statement in reliance on rules
430A, 430B and 430C and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the second business (2nd) day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A of the
Rules and Regulations; to notify the Placement Agent immediately of the
Company's intention to file or prepare any supplement or amendment to
any Registration Statement or to the Prospectus and to make no
amendment or supplement to the Registration Statement, the General
Disclosure Package or to the Prospectus to which the Placement Agent
shall reasonably object by notice to the Company after a reasonable
period to review; to advise the Placement Agent, promptly after it
receives notice thereof, of the time when any amendment to any
Registration Statement has been filed or becomes effective or any
supplement to the General Disclosure Package or the Prospectus or any
amended Prospectus has been filed and to furnish the Placement Agent
copies thereof; to file promptly all material required to be filed by
the Company with the
Commission pursuant to Rule 433(d); to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Securities Act) is required
in connection with the offering or sale of the Stock; to advise the
Placement Agent, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement, the General Disclosure Package or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus
or the Prospectus or suspending any such qualification, and promptly to
use its best efforts to obtain the withdrawal of such order.
(b) The Company represents and agrees that, unless it
obtains the prior consent of the Placement Agent, it has not made and
will not, make any offer relating to the Stock that would constitute a
"free writing prospectus" as defined in Rule 405 under the Securities
Act unless the prior written consent of the Placement Agent has been
received (each, a "PERMITTED FREE WRITING PROSPECTUS"); PROVIDED that
the prior written consent of the Placement Agent hereto shall be deemed
to have been given in respect of the Issuer Free Writing Prospectus[es]
included in SCHEDULE A hereto. The Company represents that it has
treated and agrees that it will treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, comply with the
requirements of Rules 164 and 433 under the Securities Act applicable
to any Issuer Free Writing Prospectus, including the requirements
relating to timely filing with the Commission, legending and record
keeping and will not take any action that would result in the Placement
Agent or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of such Placement Agent that such
Placement Agent otherwise would not have been required to file
thereunder.
(c) If at any time when a Prospectus relating to the
Stock is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, or the Registration Statement, as then
amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein not misleading, or if for any other reason it is
necessary at any time to amend or supplement any Registration Statement
or the Prospectus to comply with the Securities Act or the Exchange
Act, the Company will promptly notify the Placement Agent, and upon the
Placement Agent's request, the Company will promptly prepare and file
with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus
that corrects such statement or omission or effects such compliance and
will deliver to the Placement Agent, without charge, such number of
copies thereof as the Placement Agent may reasonably request. The
Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Placement Agent.
(d) If the General Disclosure Package is being used to
solicit offers to buy the Stock at a time when the Prospectus is not
yet available to prospective purchasers and any event shall occur as a
result of which, in the judgment of the Company or in the reasonable
opinion of the Placement Agent, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the
statements therein, in the light of the circumstances then prevailing,
not
misleading, or to make the statements therein not conflict with the
information contained or incorporated by reference in the Registration
Statement then on file and not superseded or modified, or if it is
necessary at any time to amend or supplement the General Disclosure
Package to comply with any law, the Company promptly will either (i)
prepare, file with the Commission (if required) and furnish to the
Placement Agent and any dealers an appropriate amendment or supplement
to the General Disclosure Package or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in the General Disclosure Package so that the
General Disclosure Package as so amended or supplemented will not, in
the light of the circumstances then prevailing, be misleading or
conflict with the Registration Statement then on file, or so that the
General Disclosure Package will comply with law.
(e) If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as
a result of which such Issuer Free Writing Prospectus conflicted or
will conflict with the information contained in the Registration
Statement, Pricing Prospectus or Prospectus, including any document
incorporated by reference therein and any prospectus supplement deemed
to be a part thereof and not superseded or modified or included or
would include an untrue statement of a material fact or omitted or
would omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances prevailing at the subsequent time, not misleading, the
Company has promptly notified or will promptly notify the Placement
Agent so that any use of the Issuer Free Writing Prospectus may cease
until it is amended or supplemented and has promptly amended or will
promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon, and in conformity with, written information furnished to
the Company by the Placement Agent specifically for inclusion therein,
which information the parties hereto agree is limited to the Placement
Agent's Information (as defined in SECTION -------- 17).
(f) To the extent not available to the public on the
Commission's EDGAR system, to furnish promptly to the Placement Agent
and to counsel for the Placement Agent a signed copy of the
Registration Statement as originally filed with the Commission, and of
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(g) To deliver promptly to the Placement Agent in New
York City such number of the following documents as the Placement Agent
shall reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission (in each case
excluding exhibits), (ii) each Preliminary Prospectus, (iii) any Issuer
Free Writing Prospectus, (iv) the Prospectus (the delivery of the
documents referred to in clauses (i), (ii), (iii) and (iv) of this
PARAGRAPH (g) to be made not later than 10:00 A.M., New York time, on
the business day following the execution and delivery of this
Agreement), (v) conformed copies of any amendment to the Registration
Statement (excluding exhibits), (vi) any amendment or supplement to the
General Disclosure Package or the Prospectus (the delivery of the
documents referred to in clauses (v) and (vi) of this PARAGRAPH (g) to
be made not later than 10:00 A.M., New York City time, on the business
day following the date of such amendment or supplement) and (vii) any
document incorporated by reference in the General Disclosure Package or
the Prospectus (excluding exhibits thereto) (the delivery of the
documents referred to in clause (vi) of this PARAGRAPH (g) to be made
not later than 10:00 A.M., New York City time, on the business day
following the date of such document).
(h) To make generally available to its shareholders as
soon as practicable, but in any event not later than eighteen (18)
months after the effective date of each Registration Statement (as
defined in Rule 158(c) under the Securities Act), an earnings statement
of the Company and its Subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Company,
Rule 158); and to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and as soon as possible after each of the first
three fiscal quarters of each fiscal year (beginning with the first
fiscal quarter after the effective date of such Registration
Statement), consolidated summary financial information of the Company
and its Subsidiaries for such quarter in reasonable detail.
(i) To take promptly from time to time such actions as
the Placement Agent may reasonably request to qualify the Stock for
offering and sale under the securities or Blue Sky laws of such
jurisdictions (domestic or foreign), if applicable, as the Placement
Agent may designate and to continue such qualifications in effect, and
to comply with such laws, for so long as required to permit the offer
and sale of Stock in such jurisdictions; PROVIDED that the Company and
its Subsidiaries shall not be obligated to qualify as foreign
corporations in any jurisdiction in which they are not so qualified or
to file a general consent to service of process in any jurisdiction.
(j) Upon request, but only to the extent not available to
the public on the Commission's EDGAR system, during the period of five
(5) years from the date hereof, to deliver to the Placement Agent, (i)
as soon as they are available, copies of all reports or other
communications furnished to shareholders, and (ii) as soon as they are
available, copies of any reports and financial statements furnished or
filed with the Commission or any national securities exchange or
automatic quotation system on which the Stock is listed or quoted.
(k) That the Company will not, for a period of ninety
(90) days from the date of the Prospectus, (the "LOCK-UP PERIOD")
without the prior written consent of LCM, directly or indirectly offer,
sell, assign, transfer, pledge, contract to sell, or otherwise dispose
of, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, other than the Company's
sale of the Stock hereunder and the issuance of restricted Common Stock
or options to acquire Common Stock pursuant to the Company's employee
benefit plans, qualified stock option plans or other employee
compensation plans as such plans are in existence on the date hereof
and described in the Prospectus and the issuance of Common Stock
pursuant to the valid exercises of options, warrants or rights
outstanding on the date hereof and up to an amount equal to 5% of the
Company's outstanding Common Stock on the date hereof issued in
connection with strategic transactions involving the Company and other
entities, including without limitation (A) acquisitions, joint
ventures, manufacturing, marketing or distribution arrangements or (B)
technology transfers or development arrangements. The Company will
cause each executive officer, director, shareholder, optionholder and
warrantholder listed in SCHEDULE B to furnish to the Placement Agent,
prior to the Closing Date, a letter, substantially in the form of
EXHIBIT B hereto, pursuant to which each such person shall agree, among
other things, not to directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, not to engage in any swap or other
agreement or arrangement that transfers, in whole or in part, directly
or indirectly, the economic risk of ownership of Common Stock or any
such securities and not to engage in any short selling of any Common
Stock or any such securities, during the Lock-Up Period, except for the
permitted transfers set forth in EXHIBIT B hereto, without the prior
written consent of LCM. The Company also agrees that during such
period, the Company will not file any registration statement,
preliminary prospectus or prospectus, or any amendment or supplement
thereto, under the Securities Act for any such transaction or which
registers, or offers for sale, Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock,
except for a registration statement on Form S-8 relating to employee
benefit plans. The Company hereby agrees that (i) if it issues an
earnings release or material news, or if a material event relating to
the
Company occurs, during the last seventeen (17) days of the Lock-Up
Period, or (ii) if prior to the expiration of the Lock-Up Period, the
Company announces that it will release earnings results during the
sixteen (16)-day period beginning on the last day of the Lock-Up
Period, the restrictions imposed by this PARAGRAPH (k) or the letter
shall continue to apply until the expiration of the eighteen (18)-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
(l) To supply the Placement Agent with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act or the Registration Statement, any Preliminary
Prospectus or the Prospectus, or any amendment or supplement thereto or
document incorporated by reference therein.
(m) Prior to the Closing Date, not to issue any press
release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of
business and consistent with the past practices of the Company and of
which the Placement Agent is notified), without the prior written
consent of the Placement Agent, unless in the judgment of the Company
and its counsel, and after notification to the Placement Agent, such
press release or communication is required by law.
(n) Until the Placement Agent shall have notified the
Company of the completion of the offering of the Stock, that the
Company will not, and will cause its affiliated purchasers (as defined
in Regulation M under the Exchange Act) not to, either alone or with
one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest,
any Stock, or attempt to induce any person to purchase any Stock; and
not to, and to cause its affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Stock.
(o) Not to take any action prior to the Closing Date
which would require the Prospectus to be amended or supplemented
pursuant to SECTION 5.
(p) To at all times comply in all material respects with
all applicable provisions of the Sarbanes-Oxley Act in effect from time
to time.
(q) To apply the net proceeds from the sale of the Stock
substantially as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus under the heading "Use of
Proceeds."
(r) To use its best efforts to list, subject to notice of
issuance, the Stock on the NYSE effect and maintain the quotation of
the Stock on the NYSE.
(s) To use its best efforts to do and perform all things
required to be done or performed under this Agreement by the Company
prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Stock.
6. PAYMENT OF EXPENSES. The Company agrees to pay, or reimburse
if paid by the Placement Agent, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated: (a) the costs incident
to the authorization, issuance, sale, preparation and delivery of the Stock to
the Purchasers and any taxes payable in that connection; (b) the costs incident
to the Registration of the Stock under the Securities Act; (c) the costs
incident to the preparation, printing and distribution of the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the General Disclosure Package, the Prospectus, any
amendments, supplements and exhibits thereto or any document incorporated by
reference therein and the costs of printing, reproducing and distributing any
transaction document by mail, telex or other means of communications; (d) any
applicable listing, quotation or other fees; (f) the cost of preparing and
printing stock certificates; (g) all fees and expenses of the registrar and
transfer agent of the Stock; (h) the fees,
disbursements and expenses of counsel to the Placement Agent (up to $100,000)
and (i) all other costs and expenses incident to the offering of the Stock or
the performance of the obligations of the Company under this Agreement
(including, without limitation, the fees and expenses of the Company's counsel
and the Company's independent accountants and the travel and other expenses
incurred by Company personnel in connection with any "road show" including,
without limitation, any expenses advanced by the Placement Agent on the
Company's behalf (which will be promptly reimbursed)); PROVIDED that, except to
the extent otherwise provided in this SECTION 6 and in SECTIONS 8 and 10, the
Placement Agent shall pay its own costs and expenses.
7. CONDITIONS TO THE OBLIGATIONS OF THE PLACEMENT AGENT AND THE
PURCHASERS, AND THE SALE OF THE STOCK. The respective obligations of the
Placement Agent hereunder and the Purchasers under the Subscription Agreements,
and the Closing of the sale of the Stock, are subject to the accuracy, when made
and on the Applicable Time and on the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof, preventing or suspending
the use of any Base Prospectus, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus or any part thereof
shall have been issued and no proceedings for that purpose or pursuant
to Section 8A under the Securities Act shall have been initiated or
threatened by the Commission, and all requests for additional
information on the part of the Commission (to be included or
incorporated by reference in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Placement Agent; the Rule 462(b)
Registration Statement, if any, each Issuer Free Writing Prospectus, if
any, and the Prospectus shall have been filed with the Commission
within the applicable time period prescribed for such filing by, and in
compliance with, the Rules and Regulations and in accordance with
SECTION 5(a), and the Rule 462(b) Registration Statement, if any, shall
have become effective immediately upon its filing with the Commission;
and the NASD shall have raised no objection to the fairness and
reasonableness of the terms of this Agreement or the transactions
contemplated hereby.
(b) The Placement Agent shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the
Registration Statement or any amendment or supplement thereto contains
an untrue statement of a fact which, in the opinion of counsel for the
Placement Agent, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading,
or that the General Disclosure Package, any Issuer Free Writing
Prospectus or the Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of such
counsel, is material or omits to state any fact which, in the opinion
of such counsel, is material and is necessary in order to make the
statements, in the light of the circumstances in which they were made,
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of each of this
Agreement, the Subscription Agreements, the Escrow Agreement, the
Stock, the Registration Statement, the General Disclosure Package, each
Issuer Free Writing Prospectus, if any, and the Prospectus and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Greenberg Traurig, LLP shall have furnished to the
Placement Agent such counsel's written opinion, as counsel to the
Company, addressed to the Placement Agent and the
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Placement Agent.
Such counsel shall also have furnished to the Placement Agent
a written statement, addressed to the Placement Agent and dated the
Closing Date, in form and substance satisfactory to the Placement
Agent, to the effect that (x) such counsel has acted as counsel to the
Company in connection with the preparation of the Registration
Statement, the General Disclosure Package and the Prospectus, and each
amendment or supplement thereto made by the Company prior to the
Closing Date, (y) based on such counsel's examination of the
Registration Statement, the General Disclosure Package and the
Prospectus, and each amendment or supplement thereto made by the
Company prior to the Closing Date and the documents incorporated by
reference in the General Disclosure Package or the Prospectus and any
further amendment or supplement to any such incorporated document made
by the Company prior to the Closing Date, and such counsel's
investigations made in connection with the preparation of the
Registration Statement, the General Disclosure Package and the
Prospectus, and each amendment or supplement thereto made by the
Company prior to the Closing Date, and "conferences with certain
officers and employees of and with auditors for and counsel to the
Company," such counsel has no reason to believe that (I) the
Registration Statement or any amendment thereto, at the Applicable Time
as of the date of this Agreement, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto, at the respective date thereof or at the Closing Date,
contained or contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, the documents included in the General Disclosure
Package, all considered together, as of the Applicable Time, contained
or contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or (II) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such
incorporated document made by the Company prior to the Closing Date,
when they became effective or were filed with the Commission, as the
case may be, contained, in the case of a registration statement which
became effective under the Securities Act, any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or, in the case of other documents which were filed under
the Exchange Act with the Commission, any untrue statement of a
material fact or omitted to state any material fact necessary in order
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 as to the financial statements or other
financial data contained in the Registration Statement, the General
Disclosure Package, or the Prospectus, or an incorporated document. The
foregoing statement may be qualified by a statement to the effect that
such counsel has not independently verified the accuracy, completeness
or fairness of the statements contained in the Registration Statement,
the General Disclosure Package or the Prospectus and takes no
responsibility therefor except to the extent set forth in the opinion
described above.
(e) In-house intellectual property counsel to the Company
shall have furnished to the Placement Agent such counsel's written
opinion, as intellectual property counsel to the Company, addressed to
the Placement Agent and the Purchasers and dated the Closing Date, in
form and substance reasonably satisfactory to the Placement Agent.
(f) King & Spalding LLP shall have furnished to the
Placement Agent such counsel's written opinion, as FDA counsel to the
Company, addressed to the Placement Agent and the Purchasers and dated
the Closing Date, in form and substance reasonably satisfactory to the
Placement Agent.
(g) The Placement Agent shall have received from Thelen
Reid Brown Raysman & Steiner LLP, counsel for the Placement Agent, such
opinion or opinions, dated the Closing Date, with respect to such
matters as the Placement Agent may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
enabling them to pass upon such matters.
(h) At the time of the execution of this Agreement, the
Placement Agent shall have received from Ernst & Young LLP a letter,
addressed to the Placement Agent, executed and dated such date, in form
and substance satisfactory to the Placement Agent (i) confirming that
they are an independent registered accounting firm with respect to the
Company and its Subsidiaries within the meaning of the Securities Act
and the Rules and Regulations and PCAOB and (ii) stating the
conclusions and findings of such firm, of the type ordinarily included
in accountants' "comfort letters" to underwriters, with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus.
(i) On the effective date of any post-effective amendment
to any Registration Statement and on the Closing Date, the Placement
Agent shall have received a letter (the "BRING-DOWN LETTER") from Ernst
& Young LLP addressed to the Placement Agent and dated the Closing Date
confirming, as of the date of the Bring-Down Letter (or, with respect
to matters involving changes or developments since the respective dates
as of which specified financial information is given in the General
Disclosure Package and the Prospectus, as the case may be, as of a date
not more than three (3) business days prior to the date of the
Bring-Down Letter), the conclusions and findings of such firm, of the
type ordinarily included in accountants' "comfort letters" to
underwriters, with respect to the financial information and other
matters covered by its letter delivered to the Placement Agent
concurrently with the execution of this Agreement pursuant to paragraph
(h) of this SECTION 7.
(j) The Company shall have furnished to the Placement
Agent and the Purchasers a certificate, dated the Closing Date, of its
Chairman of the Board, its President or a Vice President and its chief
financial officer stating that (i) such officers have carefully
examined the Registration Statement, the General Disclosure Package,
any Permitted Free Writing Prospectus and the Prospectus and, in their
opinion, the Registration Statement and each amendment thereto, at the
Applicable Time and as of the date of this Agreement and as of the
Closing Date did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the
General Disclosure Package, as of the Applicable Time and as of the
Closing Date, any Permitted Free Writing Prospectus as of its date and
as of the Closing Date, the Prospectus and each amendment or supplement
thereto, as of the respective date thereof and as of the Closing Date,
did not include any untrue statement of a material fact and did not
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, (ii) since the effective date of the Initial Registration
Statement, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement, the General
Disclosure Package or the Prospectus, (iii) to the best of their
knowledge after reasonable investigation, as of the Closing Date, the
representations and warranties of the Company in this Agreement are
true and correct and the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and (iv) there has not been,
subsequent to the date of the most recent audited financial statements
included or incorporated by reference in the General Disclosure
Package, any material adverse change in the financial position or
results of operations of the Company and its Subsidiaries, or any
change or development that, singularly or in the aggregate, would
involve a material adverse change or a prospective material adverse
change, in or affecting
the condition (financial or otherwise), results of operations,
business, assets or prospects of the Company and its Subsidiaries,
except as set forth in the Prospectus.
(k) Since the date of the latest audited financial
statements included in the General Disclosure Package or incorporated
by reference in the General Disclosure Package as of the date hereof,
(i) neither the Company nor any of its Subsidiaries shall have
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in the General Disclosure
Package, and (ii) there shall not have been any change in the capital
stock or long-term debt of the Company nor any of its Subsidiaries, or
any change, or any development involving a prospective change, in or
affecting the business, general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its Subsidiaries, otherwise than as set forth in the General
Disclosure Package, the effect of which, in any such case described in
clause (i) or (ii) of this PARAGRAPH (k), is, in the judgment of the
Placement Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the
terms and in the manner contemplated in the General Disclosure Package.
(l) No action shall have been taken and no law, statute,
rule, regulation or order shall have been enacted, adopted or issued by
any governmental agency or body which would prevent the issuance or
sale of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the
Company or its Subsidiaries]; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued which would prevent the issuance or
sale of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the
Company or its Subsidiaries.
(m) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, Nasdaq
GM or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially
limited, or minimum or maximum prices or maximum range for prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or market or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, (iii) the United
States shall have become engaged in hostilities other than current
hostilities, or the subject of an act of terrorism, there shall have
been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of the
Placement Agent, impracticable or inadvisable to proceed with the sale
or delivery of the Stock on the terms and in the manner contemplated in
the General Disclosure Package and the Prospectus.
(n) The NYSE shall have approved the Stock for inclusion
therein, subject only to official notice of issuance.
(o) The Placement Agent shall have received the written
agreements, substantially in the form of EXHIBIT B hereto, of the
executive officers, directors, shareholders, optionholders and
warrantholders of the Company listed in SCHEDULE B to this Agreement.
(p) The Company shall have entered into Subscription
Agreements with each of the Purchasers and such agreements shall be in
full force and effect.
(q) The Company shall have entered into the Escrow
Agreement and such agreement shall be in full force and effect.
(r) Prior to the Closing Date, the Company shall have
furnished to the Placement Agent such further information, opinions,
certificates, letters or documents as the Placement Agent shall have
reasonably requested.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Placement Agent.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless the
Placement Agent, its affiliates and each of its and their respective
directors, officers, members, employees, representatives and agents
(including, without limitation Lazard Freres & Co. LLC, (which will
provide services to the Placement Agent) and its affiliates, and each
of its and their respective directors, officers, members, employees,
representatives and agents and each person, if any, who controls Lazard
Freres & Co. LLC within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and each person, if any, who
controls the Placement Agent within the meaning of Section 15 of the
Securities Act of or Section 20 of the Exchange Act (collectively the
"PLACEMENT AGENT INDEMNIFIED PARTIES," and each a "PLACEMENT AGENT
INDEMNIFIED PARTY") against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in
respect thereof), joint or several, to which such Placement Agent
Indemnified Party may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon (A)
any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any "issuer information" filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto
or document incorporated by reference therein, or (B) the omission or
alleged omission to state in any Preliminary Prospectus, any Issuer
Free Writing Prospectus, any "issuer information" filed or required to
be filed pursuant to Rule 433(d) of the Rules and Regulations, any
Registration Statement or the Prospectus, or in any amendment or
supplement thereto or document incorporated by reference therein, a
material fact required to be stated therein or necessary to make the
statements therein not misleading (C) any breach of the representations
and warranties of the Company contained herein or failure of the
Company to perform its obligations hereunder or pursuant to any law,
any act or failure to act, or any alleged act or failure to act, by the
Placement Agent in connection with, or relating in any manner to, the
Stock, the Escrow Agreement or the Offering, and which is included as
part of or referred to in any loss, claim, damage, expense, liability,
action, investigation or proceeding arising out of or based upon
matters covered by subclause (A), (B) or (C) above of this SECTION 8(a)
(PROVIDED that the Company shall not be liable in the case of any
matter covered by this subclause (C) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, expense or liability resulted directly
from any such act or failure to act undertaken or omitted to be taken
by such Placement Agent through its gross negligence or willful
misconduct), and shall reimburse the Placement Agent Indemnified Party
promptly upon demand for any legal fees or other expenses reasonably
incurred by that Placement Agent Indemnified Party in connection with
investigating, or preparing to defend, or defending against, or
appearing as a third party witness in respect of, or otherwise incurred
in connection with, any such loss, claim, damage, expense, liability,
action, investigation or proceeding, as such fees and expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, expense
or liability arises out of or is based upon an untrue
statement or alleged untrue statement in, or omission or alleged
omission from any Preliminary Prospectus, any Registration Statement or
the Prospectus, or any such amendment or supplement thereto, or any
Issuer Free Writing Prospectus made in reliance upon and in conformity
with written information furnished to the Company by the Placement
Agent specifically for use therein, which information the parties
hereto agree is limited to the Placement Agent's Information (as
defined in SECTION 17). This indemnity agreement is not exclusive and
will be in addition to any liability, which the Company might otherwise
have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each Placement Agent Indemnified
Party.
(b) The Placement Agent shall indemnify and hold harmless
the Company and its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (collectively the "COMPANY INDEMNIFIED PARTIES" and each a
"COMPANY INDEMNIFIED Party") against any loss, claim, damage, expense
or liability whatsoever (or any action, investigation or proceeding in
respect thereof), joint or several, to which such Company Indemnified
Party may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, expense, liability, action,
investigation or proceeding arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any "issuer information" filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto,
or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, any Issuer Free Writing Prospectus, any "issuer
information" filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by the Placement Agent
specifically for use therein, which information the parties hereto
agree is limited to the Placement Agent's Information as defined in
SECTION 17, and shall reimburse the Company for any legal or other
expenses reasonably incurred by such party in connection with
investigating or preparing to defend or defending against or appearing
as third party witness in connection with any such loss, claim, damage,
liability, action, investigation or proceeding, as such fees and
expenses are incurred. Notwithstanding the provisions of this Section
8(b), in no event shall any indemnity by the Placement Agent under this
Section 8(b) exceed the total compensation received by such Placement
Agent in accordance with Section 2.5.
(c) Promptly after receipt by an indemnified party under
this SECTION 8 of notice of the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this SECTION 8, notify such
indemnifying party in writing of the commencement of that action;
PROVIDED, HOWEVER, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this
SECTION 8 except to the extent it has been materially prejudiced by
such failure; and, PROVIDED, FURTHER, that the failure to notify an
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this SECTION 8. If
any such action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party,
to assume the defense of such action with counsel reasonably
satisfactory to the indemnified party (which counsel shall not, except
with the written consent of the indemnified party, be counsel to the
indemnifying party). After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such action,
except as provided herein, the indemnifying party shall not be liable
to the indemnified party
under SECTION 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense of such action
other than reasonable costs of investigation; PROVIDED, HOWEVER, that
any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense of such action but
the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be at the expense of such indemnified party unless
(i) the employment thereof has been specifically authorized in writing
by the Company in the case of a claim for indemnification under SECTION
8(a) or SECTION 2.6 or LCM in the case of a claim for indemnification
under SECTION 8(b), (ii) such indemnified party shall have been advised
by its counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party, or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party within a reasonable period of
time after notice of the commencement of the action or the indemnifying
party does not diligently defend the action after assumption of the
defense, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of (or, in the case of a
failure to diligently defend the action after assumption of the
defense, to continue to defend) such action on behalf of such
indemnified party and the indemnifying party shall be responsible for
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense of such action; PROVIDED, HOWEVER, that
the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for all such
indemnified parties (in addition to any local counsel), which firm
shall be designated in writing by LCM if the indemnified parties under
this SECTION 8 consist of any Placement Agent Indemnified Party or by
the Company if the indemnified parties under this SECTION 8 consist of
any Company Indemnified Parties. Subject to this SECTION 8(c), the
amount payable by an indemnifying party under SECTION 8 shall include,
but not be limited to, (x) reasonable legal fees and expenses of
counsel to the indemnified party and any other expenses in
investigating, or preparing to defend or defending against, or
appearing as a third party witness in respect of, or otherwise incurred
in connection with, any action, investigation, proceeding or claim, and
(y) all amounts paid in settlement of any of the foregoing. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
judgment with respect to any pending or threatened action or any claim
whatsoever, in respect of which indemnification or contribution could
be sought under this SECTION 8 (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party in form and substance reasonably satisfactory to such
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party. Subject to the provisions of the following sentence,
no indemnifying party shall be liable for settlement of any pending or
threatened action or any claim whatsoever that is effected without its
written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with its written consent, if its consent has
been unreasonably withheld or delayed or if there be a judgment for the
plaintiff in any such matter, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. In
addition, if at any time an indemnified party shall have requested that
an indemnifying party reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated herein effected
without its written consent if (i) such settlement is entered into more
than forty-five (45) days after receipt by such indemnifying party of
the request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least thirty (30)
days prior to such settlement being entered into and (iii) such
indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior
to the date of such settlement.
(d) If the indemnification provided for in this SECTION 8
is unavailable or insufficient to hold harmless an indemnified party
under SECTION 8(a) or SECTION 8(b), then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the
amount paid, payable or otherwise incurred by such indemnified party as
a result of such loss, claim, damage, expense or liability (or any
action, investigation or proceeding in respect thereof), as incurred,
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Placement
Agent on the other hand from the offering of the Stock, or (ii) if the
allocation provided by clause (i) of this SECTION 8(d) is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) of this SECTION
8(d) but also the relative fault of the Company on the one hand and the
Placement Agent on the other with respect to the statements, omissions,
acts or failures to act which resulted in such loss, claim, damage,
expense or liability (or any action, investigation or proceeding in
respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Placement Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company bear to the total
discounts and commissions received by the Placement Agent in connection
with the Offering, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the one
hand and the Placement Agent on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or the Placement Agent on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement, omission, act
or failure to act; PROVIDED that the parties hereto agree that the
written information furnished to the Company by the Placement Agent for
use in the Preliminary Prospectus, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, consists solely
of the Placement Agent's Information as defined in SECTION 17. The
Company and the Placement Agent agree that it would not be just and
equitable if contributions pursuant to this SECTION 8(d) were to be
determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage, expense, liability, action,
investigation or proceeding referred to above in this SECTION 8(d)
shall be deemed to include, for purposes of this SECTION 8(d), any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating, preparing to defend or defending
against or appearing as a third party witness in respect of, or
otherwise incurred in connection with, any such loss, claim, damage,
expense, liability, action, investigation or proceeding.
Notwithstanding the provisions of this SECTION 8(d), the Placement
Agent shall not be required to contribute any amount in excess of the
total compensation received by the Placement Agent in accordance with
SECTION 2.5 less the amount of any damages which the Placement Agent
has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement, omission or alleged omission, act or alleged
act or failure to act or alleged failure to act. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
9. TERMINATION. The obligations of the Placement Agent and the
Purchasers hereunder and under the Subscription Agreements may be terminated by
the Placement Agent, in its absolute discretion by notice given to the Company
prior to delivery of and payment for the Stock if, prior to that time, any of
the events described in SECTIONS 7(k), 7(l), or 7(m) have occurred or if the
Purchasers shall decline to purchase the Stock for any reason permitted under
this Agreement or the Subscription Agreements.
10. REIMBURSEMENT OF PLACEMENT AGENT'S EXPENSES. Notwithstanding
anything to the contrary in this Agreement, if (a) this Agreement shall have
been terminated pursuant to SECTION 9, (b) the Company shall fail to tender the
Stock for delivery to the Purchasers for any reason not permitted under this
Agreement, (c) the Purchasers shall decline to purchase the Stock for any reason
permitted under this Agreement or (d) the sale of the Stock is not consummated
because any condition to the obligations of the Purchasers or the Placement
Agent set forth herein is not satisfied or because of the refusal, inability or
failure on the part of the Company to perform any agreement herein or to satisfy
any condition or to comply with the provisions hereof, then in addition to the
payment of amounts in accordance with SECTION 6, the Company shall reimburse the
Placement Agent for the fees and expenses of the Placement Agent's counsel and
for such other out-of-pocket expenses as shall have been reasonably incurred by
them in connection with this Agreement and the proposed purchase of the Stock,
and upon demand the Company shall pay the full amount thereof to the Placement
Agent.
11. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company acknowledges
and agrees that:
(a) the Placement Agent's responsibility to the Company
is solely contractual in nature, the Placement Agent has been retained
solely to act as Placement Agent in connection with the Offering and no
fiduciary, advisory or agency relationship between the Company and the
Placement Agent has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the Placement
Agent or Lazard Freres & Co. LLC has advised or is advising the Company
on other matters;
(b) the price of the Stock set forth in this Agreement
was established by the Company following discussions and arms-length
negotiations with the Placement Agent, and the Company is capable of
evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this
Agreement;
(c) it has been advised that the Placement Agent and
Lazard Freres & Co. LLC and their affiliates are engaged in a broad
range of transactions which may involve interests that differ from
those of the Company and that the Placement Agent has no obligation to
disclose such interests and transactions to the Company by virtue of
any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law,
any claims it may have against the Placement Agent for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that the
Placement Agent shall have no liability (whether direct or indirect) to
the Company in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the
Company, including stockholders, employees or creditors of the Company.
12. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Placement Agent,
the Company, and their respective successors and assigns. This Agreement shall
also inure to the benefit of Lazard Freres & Co. LLC, the Purchasers, and each
of their respective successors and assigns, which shall be third party
beneficiaries hereof. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, other than the persons
mentioned in the preceding sentences, any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein contained,
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person; except that the representations, warranties, covenants,
agreements and indemnities of the Company contained in this Agreement shall also
be for the benefit of the Placement Agent Indemnified Parties and the
indemnities of the Placement Agent shall be for the benefit of the Company
Indemnified Parties. It is understood that the Placement Agent's responsibility
to the Company is solely contractual in nature and the Placement Agent does not
owe the Company, or any other party, any fiduciary duty as a result of this
Agreement.
13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and
the Placement Agent, as set forth in this Agreement or made by them
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Placement Agent, the
Company, the Purchasers or any person controlling any of them and shall survive
delivery of and payment for the Stock. Notwithstanding any termination of this
Agreement, including without limitation any termination pursuant to SECTIONS 9
or 10, the indemnity and contribution agreements contained in SECTION 8 and the
covenants, representations, warranties set forth in this Agreement shall not
terminate and shall remain in full force and effect at all times.
14. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Placement Agent, shall be delivered or sent
by mail, telex, facsimile transmission or email to Lazard Capital
Markets LLC, Attention: General Counsel, Fax: 212-830-3615; and
(b) if to the Company, shall be delivered or sent by
mail, telex, facsimile transmission or email to Enzo Biochem, Inc., 527
Madison Avenue, New York, New York 10022 Attention: Barry Weiner,
President and Chief Financial Officer, Fax: 212-583-0150.
PROVIDED, HOWEVER, that any notice to the Placement Agent pursuant to SECTION 8
shall be delivered or sent by mail, telex or facsimile transmission to the
Placement Agent at its address set forth in its acceptance telex to the
Placement Agent, which address will be supplied to any other party hereto by the
Placement Agent upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof, except that any
such statement, request, notice or agreement delivered or sent by email shall
take effect at the time of confirmation of receipt thereof by the recipient
thereof.
15. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
16. GOVERNING LAW, AGENT FOR SERVICE AND JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW. No legal proceeding 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 matters, and the Company and the Placement Agent each
hereby consent to the jurisdiction of such courts and personal service with
respect thereto. The Company and the Placement Agent each hereby consent to
personal jurisdiction, service and venue in any court in which any legal
proceeding arising out of or in any way relating to this Agreement is brought by
any third party against the Company or the Placement Agent. The Company and the
Placement Agent each hereby waive all right to trial by jury in any legal
proceeding (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 legal proceeding brought in any such court shall be conclusive and
binding upon the Company and the Placement Agent and may be enforced in any
other courts in the jurisdiction of which the Company is or may be subject, by
suit upon such judgment.
17. PLACEMENT AGENT'S INFORMATION. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Placement Agent's
Information consists solely of the following information in the Prospectus: (i)
the last paragraph on the front cover page concerning the terms of the offering
by the Placement Agent; and (ii) the statements concerning the Placement Agent
contained in the first paragraph under the heading "Plan of Distribution."
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability
of any section, paragraph, clause or provision of this Agreement shall not
affect the validity or enforceability of any other section, paragraph, clause or
provision hereof. If any section, paragraph, clause or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
19. GENERAL. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company and the Placement Agent.
20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument and such signatures
may be delivered by facsimile.
If the foregoing is in accordance with your understanding of the
agreement between the Company and the Placement Agent, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
ENZO BIOCHEM, INC.
By: /s/ Barry W. Weiner
------------------------
Name: Barry W. Weiner
Title: President
Accepted as of the date
first above written:
LAZARD CAPITAL MARKETS LLC
By: /s/ David G. McMillan, Jr.
-----------------------------
Name: David G. McMillan, Jr.
Title: Managing Director