EXHIBIT 1.1
6,800,000 SHARES
ALGORX PHARMACEUTICALS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[__________________], 2005
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
PIPER JAFFRAY & CO.
LAZARD FRERES & CO. LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
c/o Citigroup Global Markets Inc.
388 Greenwich Street,
New York, New York, 10013
Dear Sirs:
1. Introductory. AlgoRx Pharmaceuticals, Inc, a Delaware corporation
("COMPANY"), proposes to issue and sell 6,800,000 shares ("FIRM SECURITIES") of
its Common Stock, $0.001 par value per share ("SECURITIES"). The Company also
proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,020,000 additional shares of its Securities as set
forth below (such 1,020,000 additional shares being hereinafter referred to as
the "OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities are
herein collectively called the "OFFERED SECURITIES". The Company hereby agrees
with the several Underwriters named in Schedule A hereto ("UNDERWRITERS") as
follows:
2. Representations and Warranties of the Company. (a) The Company
represents and warrants to, and agrees with, the several Underwriters that:
(i) A registration statement (No. 333-120757) relating to the
Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission ("COMMISSION") and
either (A) has been declared effective under the Securities Act of
1933 ("ACT") and is not proposed to be amended or (B) is proposed to
be amended by amendment or post-effective amendment. If such
registration statement (the "INITIAL REGISTRATION STATEMENT") has
been declared effective, either (A)
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an additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed
with the Commission pursuant to Rule 462(b) ("RULE 462(B)") under
the Act and, if so filed, has become effective upon filing pursuant
to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement
or (B) such an additional registration statement is proposed to be
filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend
it, and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c) ("RULE 462(C)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the
Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery
of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c), or (B) if the
Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised
the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the
date and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the
Additional Registration Statement are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("RULE 424(B)") under the Act or
(if no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
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(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include 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, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant
to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and neither
of such documents includes, or will include, any untrue statement of
a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein, and, in the case of the Prospectus, in light of the
circumstance under which they were made, not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects
to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, and, in
the case of the Prospectus, in light of the circumstance under which
they were made, not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished
to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b)
hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification except for such jurisdictions where the
failure to so qualify or to be in good standing would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect"); and New Jersey and California are the
only jurisdictions in which the Company maintains an office or
leases property.
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and each subsidiary of the Company
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is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; the jurisdictions listed
on Exhibit A to the opinion to be delivered to the Underwriters by
Heller Ehrman White & McAuliffe LLP pursuant to Section 6(d)(ii)
hereof are the only jurisdictions in which the Company's
subsidiaries maintain an office or lease property; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and conform
to the description thereof contained in the Prospectus; all
outstanding shares of capital stock of the Company are, and when the
Offered Securities have been delivered and paid for in accordance
with this Agreement on each Closing Date (as defined below), such
Offered Securities will have been, validly issued, fully paid and
nonassessable; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file
a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed
by the Company under the Act.
(viii) The Securities have been approved for listing subject
to notice of issuance on the Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the consummation
of the transactions contemplated by this Agreement in connection
with the sale of the Offered Securities, except (i) such as have
been obtained and made under the Act and the Securities Exchange Act
of 1934, as amended, (ii) such as have been filed with and accepted
by the Delaware Secretary of State, (iii) such consents, approvals
or filings with the National Association of Securities Dealers, Inc.
(the "NASD") which have been obtained and made by the Underwriters
or their counsel in connection with the Offered Securities, (iv)
such as have been obtained from the Nasdaq National Market and (v)
such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute,
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any rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company
or any subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound
or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or
any such subsidiary.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in
the Prospectus, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to
be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent that would reasonably be expected to have a Material
Adverse Effect.
(xv) (i) The Company and its wholly-owned subsidiaries own, or
have obtained valid and enforceable licenses for, or other rights to
use, the inventions, patent applications, patents, trademarks (both
registered and unregistered), tradenames, service names, copyrights,
trade secrets and other proprietary information described in the
Prospectus as being owned or licensed by them or which are necessary
for the conduct of the Company's business as described in the
Registration Statement and the Prospectus or necessary in connection
with commercialization of the product candidates described in the
Registration Statement and the Prospectus as being under
development, except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material
Adverse Effect (collectively, "INTELLECTUAL PROPERTY"); (ii) to the
Company's knowledge, there are no third parties who have or will be
able to establish rights to any intellectual property, except for
the ownership rights of the owners of the intellectual property that
is licensed to the Company or any of its subsidiaries; (iii) to the
Company's knowledge, there is no infringement by third parties of
any intellectual property; (iv) to the Company's knowledge, there is
no pending or threatened action, suit, proceeding or claim by others
challenging the rights of the Company or any of its subsidiaries in
or to any intellectual property, and the Company is unaware of any
facts which could form a reasonable basis for any such action, suit,
proceeding or claim; (v) except as described in the Prospectus, to
the Company's knowledge, there is no pending or threatened action,
suit, proceeding or claim by others challenging the validity or
scope of any intellectual property, and the Company is unaware of
any facts which could form
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a reasonable basis for any such action, suit, proceeding or claim;
(vi) there is no pending against the Company or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
that the Company or any of its subsidiaries infringes, or upon
commercialization of any product described in the Registration
Statement or Prospectus as being under development, would infringe,
or otherwise violates, or, except as would not individually or in
the aggregate have a Material Adverse Effect, upon commercialization
of any product described in the Registration Statement or Prospectus
as being under development, would violate any patent, trademark,
tradename, service name, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any
facts which could form a reasonable basis for any such action, suit,
proceeding or claim; (vii) to the Company's knowledge, there is no
patent or patent application that contains claims that interfere
with the issued or pending claims of any of the intellectual
property; and (viii) to the Company's knowledge, there is no prior
art that may render any patent application owned by the Company or
any of its subsidiaries of the intellectual property unpatentable.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim would
individually or in the aggregate have Material Adverse Effect; and
the Company is not aware of any pending investigation which might
lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or, to the knowledge
of the Company, affecting the Company, any of its subsidiaries or
any of their respective properties that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and, to the
Company's knowledge, no such actions, suits or proceedings are
threatened or, contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods
shown, and, except as otherwise disclosed in the Prospectus, such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis; the schedules included in each
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing the pro forma
financial statements included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
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(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(xx) The Company after this offering will be subject to the
reporting requirements of either Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and will file reports with the
Commission on the Electronic Data Gathering, Analysis, and Retrieval
(EDGAR) system.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(xxii) Any statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
reasonably believes to be reliable, and the Company has obtained the
written consent to the use of such data from such sources to the
extent required.
(xxiii) The clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Company or any of
its subsidiaries or in which the Company, any of its subsidiaries or
its product candidates have participated ("COMPANY STUDIES") that
are described in the Prospectus or the results of which are referred
to in the Prospectus were and, if still pending, are being conducted
in all material respects in accordance with standard medical and
scientific research procedures; the descriptions in the Prospectus
of the results of such studies and tests are accurate in all
material respects, disclose all material aspects of such studies and
tests, fairly present the data derived from such studies and tests,
and the Company has no knowledge of any other studies or tests the
results of which are materially inconsistent with or otherwise
materially call into question the results described or referred to
in the Prospectus; the Company and each of its subsidiaries has
operated and currently is in compliance in all material respects
with all applicable rules, regulations and policies of the U.S. Food
and Drug Administration and comparable drug regulatory agencies
outside of the United States (collectively, the "REGULATORY
AUTHORITIES"); and except to the extent disclosed in the
Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has received any notice or other
correspondence from any Regulatory Authority or any other
governmental agency requiring the termination, suspension or
material modification of any Company Studies that are described in
the Prospectus or the results of which are referred to in the
Prospectus.
(xxiv) 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 aware of
or has taken any action, directly or indirectly, that would result
in a violation by such Persons of the FCPA, including, without
limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the
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payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign
official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith. "FCPA" means Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder.
(xxv) The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental
agency (collectively, the "MONEY LAUNDERING LAWS") and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(xxvi) 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.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $ [______] per share, that number of
Firm Securities set forth opposite the name of such Underwriter in Schedule A
hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to CSFB and Citigroup Global Markets Inc.
("CITIGROUP") drawn to the order of AlgoRx Pharmaceuticals, Inc. at the office
of Ropes & Gray LLP, 45 Rockefeller Plaza, New York, NY 10111, at 10:00 A.M.,
New York time, on [______], 2005, or at such other time not later than seven
full business days thereafter as CSFB and the Company determine, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFB and Citigroup request and will be made available for checking
and packaging at the above office of Ropes & Gray LLP at least 24 hours prior to
the First Closing Date.
In addition, upon written notice from CSFB and Citigroup given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than
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all of the Optional Securities at the purchase price per Security to be paid for
the Firm Securities. Such Optional Securities shall be purchased from the
Company for the account of each Underwriter in the same proportion as the number
of Firm Securities set forth opposite such Underwriter's name bears to the total
number of Firm Securities (subject to adjustment by CSFB and Citigroup to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFB and Citigroup to the
Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
and Citigroup but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to CSFB
and Citigroup drawn to the order of AlgoRx Pharmaceuticals, Inc. at the above
office of Ropes & Gray LLP. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as CSFB and Citigroup request upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Ropes & Gray LLP at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFB and
Citigroup, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement.
The Company will advise CSFB and Citigroup promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by CSFB and Citigroup.
(b) The Company will advise CSFB and Citigroup promptly of any
proposal to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
CSFB's and Citigroup's consent which will not be unreasonably withheld;
and the Company will also advise
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CSFB and Citigroup promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFB and Citigroup of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Neither CSFB's nor Citigroup's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (5 of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFB and Citigroup request. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement. All
other such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB and
Citigroup designates and will continue such qualifications in effect so
long as required for the distribution, provided, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation for doing business in any
jurisdiction where it is not now so subject.
(g) For the period specified below (the "LOCK-UP PERIOD"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of
its Securities or securities convertible into or exchangeable or
exercisable for any shares of its
10
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFB and Citigroup, except (i) issuances of Securities pursuant to the
conversion or exchange of convertible or exchangeable securities or the
exercise of warrants, options or other rights to acquire securities , in
each case outstanding or issued under equity-based compensation plans
existing on the date hereof (provided, in each case, the recipients have
entered into lock-up agreements substantially in the form of Exhibit A
hereto prior to the issuance of such securities), (ii) grants of
stock-based awards to employees, directors or consultants pursuant to the
terms of a plan in effect on the date hereof, or (iii) Form S-8 filings
with respect to any plans in effect on the date hereof. The initial
Lock-Up Period will commence on the date hereof and will continue and
include the date 180 days after the date hereof or such earlier date that
CSFB and Citigroup consent to in writing; provided, however, that if (1)
during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating to
the Company occurs or (2) prior to the expiration of the initial Lock-Up
period, the Company announces that it will release earnings results during
the 16-day period beginning on the last day of the initial Lock-Up Period,
then in each case the Lock-Up Period will be extended until the expiration
of the 18-day period beginning on the date of release of the earnings
results or the occurrence of the material news or material event, as
applicable, unless CSFB and Citigroup waive, in writing, such extension.
The Company will provide CSFB and Citigroup with notice of any
announcement described in clause (2) of the preceding sentence that gives
rise to an extension of the Lock-up Period.
(h) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, for any filing fees and
other expenses (including fees and disbursements of counsel) in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as CSFB and Citigroup designates and the printing of
memoranda relating thereto for the filing fee incident to the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, including the cost of any aircraft chartered by or on behalf
of the Company in connection with attending or hosting such meetings and
for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(i) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and to use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
11
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Ernst & Young LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 100, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net assets, as compared
with amounts shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in consolidated net
sales or net operating income in the total or per share
amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and
12
its subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be
filed or as proposed to be amended by the post-effective amendment to be
filed shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall
mean the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFB and Citigroup. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery
of this Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
CSFB and Citigroup. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. Prior to
such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of the Representatives, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange;
(v) or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (vi) any banking moratorium
declared by U.S. Federal or New York authorities; (vii) any major
disruption of settlements of securities or clearance services in the
United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of the
13
Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Heller Ehrman White & McAuliffe LLP, counsel for the
Company, in the form set forth in Exhibit 6D.
(e) The Representatives shall have received an opinion, dated such
Closing Date, from Hogan & Hartson L.L.P., as special regulatory counsel
for the Company in the U.S. Food and Drug Administration ("FDA") and the
U.S. Centers for Medicare and Medicaid Services ("CMS") areas only, in the
form set forth in Exhibit 6E.
(f) The Representatives shall have received an opinion, dated such
Closing Date, from Davidson, Davidson & Kappel, LLC, intellectual property
counsel for the Company in the form set forth in Exhibit 6F.
(g) The Representatives shall have received from Ropes & Gray LLP,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of
the Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(h) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and, subsequent
to the date of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(j) On or prior to the date of this Agreement, the Representatives
shall have received a lockup letter Company in the form attached hereto as
Exhibit A from each executive officer and director and from holders of at
least 99% of all shares of the Common Stock of the Company treating all
outstanding equity securities of the Company on a fully-diluted basis.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
requests. CSFB and Citigroup may in their sole
14
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors officers and
its affiliates and each person, if any who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; provided further, that
with respect to any untrue statement or omission of material fact made in any
preliminary prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the securities concerned, to
the extent that any such loss, claim, damage or liability of such Underwriter
occurs under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (v) the Company
had previously furnished copies of the Prospectus to the Representatives, (w)
delivery of the Prospectus was required by the Act to be made to such person,
(x) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus, (y) there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such securities to such person, a copy of the Prospectus and (z) such failure to
send or give to such person, at or prior to the written confirmation of the sale
of such securities to such person, a copy of the Prospectus caused such person
any loss, claim, damage or liability.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such 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 such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the [fifth]
paragraph under the caption "Underwriting" and the information contained in the
fourteenth, fifteenth and sixteenth paragraphs under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
15
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action 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 an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault 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 or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB and
Citigroup may make arrangements satisfactory to the Company for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated
16
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFB, Citigroup and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 9 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to
the Firm Securities or any Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clauses (iii), (iv), (vi), (vii) or (viii) of Section
6(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Representatives, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: IBD-Legal (fax: 212-325-4296) and Citigroup
Global Markets Inc., 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel (fax: 212-816-7912), or, if sent to the Company, will be mailed,
delivered or faxed and confirmed to it at 500 Plaza Drive, 2nd Floor, Secaucus,
New Jersey 07094-3619, Attention: Chief Financial Officer (fax: 201-325-6905);
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFB and Citigroup will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH,
17
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
ALGORX PHARMACEUTICALS, INC.
By:.........................................
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
PIPER JAFFRAY & CO.
LAZARD FRERES & CO. LLC
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By CREDIT SUISSE FIRST BOSTON LLC
By.....................................................
Name:
Title:
By CITIGROUP GLOBAL MARKETS INC.
By.....................................................
Name:
Title:
Signature Page to Underwriting Agreement
SCHEDULE A
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC...................... [______________]
Citigroup Global Markets Inc........................ [______________]
Piper Jaffray & Co.................................. [______________]
Lazard Freres & Co. LLC............................. [______________]
Total............................. [6,800,000]
=========
EXHIBIT A
Form of Lock Up
_________________________, 2004
AlgoRx Pharmaceuticals, Inc.
500 Plaza Drive, 2nd Floor
Secaucus, NJ 07094
Credit Suisse First Boston LLC
Citigroup Global Markets
Piper Jaffray & Co.
Lazard Freres & Co. LLC
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering (the "OFFERING") will be made that is
intended to result in the establishment of a public market for the Common Stock
(the "SECURITIES") of AlgoRx Pharmaceuticals, Inc., a Delaware corporation, and
any successor (by merger or otherwise) thereto, (the "Company"), the undersigned
hereby agrees that during the period specified in the following two paragraphs
(the "LOCK-UP PERIOD"), the undersigned will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any shares of Securities
or securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or to enter into
any such transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of Credit Suisse First Boston LLC ("CSFB") and
Citigroup Global Markets ("CITIGROUP"). In addition, the undersigned agrees
that, without the prior written consent of CSFB and Citigroup, it will not,
during the Lock-Up Period, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities.
The initial Lock-Up Period will commence on the later of (x) the date of
this Lock-Up Agreement or (y) the date of the initial filing with the Securities
and Exchange Commission of the Registration Statement on Form S-1 for the
Offering and continue and include the date 180 days after the public offering
date set forth on the final prospectus used to sell the Securities (the "PUBLIC
OFFERING DATE") pursuant to the Underwriting Agreement, to which you are or
expect to become parties; provided, however, that if (1) during the last 17 days
of the initial Lock-Up Period, the Company releases earnings results or material
news or a material event relating to the Company
occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the initial Lock-Up Period, then in each case the
Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the occurrence of
the material news or material event, as applicable, unless CSFB and Citigroup
waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any
extension of the Lock-Up Period pursuant to the previous paragraph will be
delivered by CSFB and Citigroup to the Company (in accordance with Section 10 of
the Underwriting Agreement) and that any such notice properly delivered will be
deemed to have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the restrictions of this Lock-Up Agreement during the
period from the date of this Lock-Up Agreement to an including the 34th day
following the expiration of the initial Lock-Up Period, it will give notice
thereof to the Company and will not consummate such transaction or take any such
action unless it has received written confirmation from the Company that the
Lock-Up Period (as may have been extended pursuant to the previous paragraph)
has expired.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. The foregoing restrictions
shall not apply to any transfer of Securities (a) to any underwriters in the
Offering pursuant to the underwriting agreement for the Offering; (b) as a bona
fide gift or gifts; (c) to any trust for the benefit of the undersigned or the
undersigned's family; (d) by will or intestacy to the undersigned's legal
representative, heir or legatee; (e) if the undersigned is a partnership,
corporation, limited liability company or similar entity, (1) to another
corporation, partnership or other business entity if the transferee and the
undersigned are "affiliates" as defined in Rule 405 promulgated under the
Securities Act of 1933, as amended, or (2) as a distribution to partners,
stockholders or members of the undersigned; or (f) acquired in the public market
on or after the date of the final prospectus filed by the Company with the
Securities and Exchange Commission in connection with the Offering, provided
that in the case of any transfer pursuant to any of clauses (b) through (f) each
donee, transferee or distributee shall execute and deliver to CSFB a duplicate
form of this letter and no filing by any party (donor, transferor, distributor,
donee, transferee or distributee) under the Securities Exchange Act of 1934, as
amended, shall be required or shall be voluntarily made in connection with such
donation, transfer or distribution (other than a filing on a Form 5 made after
the expiration of the Lock-Up Period).
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before May 31, 2005 (or earlier if the Company or both CSFB and
Citigroup terminates the Offering by written notice to the other). THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
Very truly yours,
--------------------------------------------
[SIGNATURE OF STOCKHOLDER]
Print name:
---------------------------------
If stockholder is an institution, Title:
trust or other entity, please --------------------------------------
print name of such institution,
trust or entity and your title: Entity name:
--------------------------------
If Securities are jointly held, Joint
joint holder should also sign stockholder:
this letter: --------------------------------
[SIGNATURE OF JOINT STOCKHOLDER]