6,500,000 SHARES
OXiGENE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
December 14, 2005
SG COWEN & CO., LLC
LAZARD CAPITAL MARKETS LLC
As Representatives of the several Underwriters
c/o SG Cowen & Co., LLC
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. INTRODUCTORY. OXiGENE, Inc., a Delaware corporation (the "Company"),
proposes to sell, pursuant to the terms of this Underwriting Agreement
("Agreement"), to the several underwriters named in Schedule A hereto (the
"Underwriters," or, each, an "Underwriter"), an aggregate of 6,500,000 shares of
common stock, par value $.01 per share (the "Common Stock"), of the Company. The
aggregate of 6,500,000 shares so proposed to be sold is hereinafter referred to
as the "Firm Stock". The Company also proposes to sell to the Underwriters, upon
the terms and conditions set forth in Section 3 hereof, up to an additional
975,000 shares of Common Stock (the "Optional Stock"). The Firm Stock and the
Optional Stock are hereinafter collectively referred to as the "Stock". SG Cowen
& Co., LLC ("SG Cowen") and Lazard Capital Markets LLC are acting as
representatives of the several Underwriters and in such capacity are hereinafter
referred to collectively as the "Representatives".
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) The Company meets the requirements for use of Form S-3 in connection
with the sale of the Stock and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-128528), including a prospectus relating to the Stock, for the
registration of such securities under the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Commission thereunder; a prospectus supplement
reflecting the terms of the Stock, the terms of the offering thereof and
the other matters set forth therein has been prepared or will be prepared
and will be filed pursuant to Rule 424(b) under the Securities Act (such
prospectus supplement, in the form first filed after the date hereof
pursuant to Rule 424(b), is herein referred to as the "Prospectus
Supplement"); such registration statement, as amended at the date hereof,
including all documents incorporated or deemed to be incorporated by
reference therein and the exhibits thereto, in the form in which it was
declared effective by the Commission under the Securities Act is herein
referred to as the "Initial Registration Statement" and the base
prospectus dated October 6, 2005, included therein and relating to all
offerings of securities under the Initial Registration Statement, as
supplemented by the Prospectus Supplement, is herein referred to as the
"Prospectus," except that if such base prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424(b), then the term "Prospectus" shall
refer to the base prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act"), that are
incorporated by reference therein; the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto but including all
documents incorporated by reference in the prospectus contained therein,
in the form delivered to you for each of the other Underwriters, has been
declared effective by the Commission in such form; other than the
Preliminary Prospectus Supplement (defined below) the Prospectus
Supplement and a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act and the Rules and Regulations, which
became effective
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upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or, to
the Company's knowledge, threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the Rules and Regulations and
the preliminary prospectus supplement dated December 1, 2005 filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations (the
"Preliminary Prospectus Supplement"), is hereinafter called a "Preliminary
Prospectus"); the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and including (i) the information contained in the Prospectus and
(ii) the documents incorporated by reference in the Prospectus, are
hereinafter collectively called the "Registration Statements"; and any
reference herein to 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 under the Securities Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Exchange Act and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statements shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statements. No document has been or will be prepared or
distributed in reliance on Rule 434 under the Securities Act. No order
preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission.
(b) The Initial Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus, the Preliminary Prospectus
Supplement, the Prospectus Supplement and any amendments or supplements
thereto when they 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 and the Rules and Regulations and do
not and will not, as of the applicable effective date (as to the
Registration Statements and any amendments thereto) and as of the
respective applicable filing dates and the Time of Sale (as to the
Prospectus, the Preliminary Prospectus Supplement, the Prospectus
Supplement and any amendment or supplement thereto) 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, in the
case of the Prospectus, in light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing
representations and warranties shall not apply to information contained in
or omitted from the Registration Statements or the Prospectus or any such
amendment or supplement thereto in reliance upon, and in conformity with,
written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the Underwriters'
Information (as defined in Section 17). For purposes of this Agreement,
"Time of Sale" means 9:00 a.m., New York City time, on December 15, 2005.
(c) The documents incorporated by reference in the Prospectus or deemed
to be part of the Registration Statements, 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,
in the case of the Prospectus, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or deemed to be part of the
Registration Statement, when such documents become effective or are filed
with 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.
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(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and
has all power and authority necessary to own or hold its properties and to
conduct the business in which it is engaged, except where the failure to
so qualify or have such power or authority would not have, singularly or
in the aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company (a
"Material Adverse Effect").
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Company does not have any subsidiaries nor, except as disclosed
in the Prospectus and except for the Company's ownership of approximately
9.7% of the issued and outstanding shares of the common stock of
Optigenex, Inc., does the Company own or hold any equity interests in any
other entity equal to 1% or more of the outstanding equity interests of
any such entity.
(g) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any statute or any rule or regulation or any judgment, order or
decree of any court or governmental agency or body, specifically naming
the Company, and having jurisdiction over the Company or any of its
properties or assets.
(h) The Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein will be duly and
validly issued, fully paid and non-assessable, and will conform to the
description thereof contained in the Prospectus and the Underwriters will
acquire good and valid title to the Stock, free and clear of all liens,
encumbrances, equities, preemptive rights, subscription rights, other
rights to purchase, voting or transfer restrictions and other claims.
(i) The Company has the authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been (and with respect to the Stock will be, as of each date of
issuance of such Stock) 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 Prospectus. 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 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 other than those accurately described in the
Prospectus. 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 Prospectus accurately and fairly present
the information required to be shown with respect to such plans,
arrangements, options and rights.
(j) The Company has delivered, or will as promptly as practicable
deliver, to the Representatives complete conformed copies of the
Registration Statements and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration
Statements (without exhibits), the Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such
places as the Representatives reasonably request. Neither the Company nor
any of its directors and officers has distributed and none of them will
distribute, prior to the completion of the distribution of Stock, any
offering material in connection with the offering and sale of the Stock
other than the Prospectus, the Prospectus Supplement, the Registration
Statements, copies of the documents incorporated by reference therein and
any other materials permitted by the Securities Act.
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(k) 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 securities or "blue sky" laws, the National Association of
Securities Dealers, Inc. ("NASD"), and the NASDAQ National Market System
("NASDAQ") in connection with the purchase and distribution of the Stock
by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby.
(l) Ernst & Young LLP, who have expressed their opinions on the audited
financial statements and related schedules incorporated by reference in
the Registration Statements and the Prospectus are, and during the periods
covered by their reports, were, registered independent public accountants
with respect to the Company as required by the Securities Act and the
Rules and Regulations. All audit and non-audit services, other than de
minimus services, provided by Ernst & Young LLP to the Company since July
30, 2002, have been pre-approved by the audit committee of the Company's
board of directors in accordance with Section 10A of the Exchange Act.
(m) The financial statements, together with the related notes,
incorporated by reference in the Prospectus and in the Registration
Statements fairly present the financial position and the results of
operations and changes in financial position of the Company at the
respective dates or for the respective periods therein specified. Such
statements and related notes have been prepared in accordance with
generally accepted accounting principles in the United States ("GAAP")
applied on a consistent basis except as may be set forth in the
Prospectus. The financial statements, together with the related notes and
schedules, included or incorporated by reference in the Prospectus comply
in all material respects with the Securities Act and the Rules and
Regulations thereunder. No other financial statements or supporting
schedules or exhibits are required by the Securities Act or the Rules and
Regulations thereunder to be included in the Prospectus or the
Registration Statement.
(n) The Company has not sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, (i) there has not been any change in the capital
stock or long-term debt of the Company or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company, in each case
otherwise than as set forth or contemplated in the Prospectus and (ii),
except as disclosed in the Registration Statements, the Prospectus and the
Prospectus Supplement, the Company has not (A) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money, except such liabilities or obligations incurred in the ordinary
course of business, (B) entered into any transaction not in the ordinary
course of business or (C) declared or paid any dividend or made any
distribution on any shares of its capital stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its capital stock.
(o) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company is a party or of
which any property or assets of the Company are the subject which is
required to be described in the Registration Statements or the Prospectus
and is not described therein, or which, singularly or in the aggregate, if
determined adversely to the Company could reasonably be expected to have a
Material Adverse Effect or would prevent or adversely affect the ability
of the Company to perform its obligations under this Agreement; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(p) The Company is not (i) in violation of its charter or by-laws, (ii)
in 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 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) in violation in any
respect of any statute, law, ordinance, governmental rule or regulation or
any judgment, order or decree of any court, regulatory body,
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administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or its property or assets (including,
without limitation, those administered by the Food and Drug Administration
(the "FDA") or by any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by
the FDA), except, with respect to clauses (ii) and (iii), any violations
or defaults which, singularly or in the aggregate, would not have a
Material Adverse Effect.
(q) The Company possesses all licenses, certificates, authorizations and
permits issued by, and has made all declarations and filings with, the
appropriate state, federal or foreign regulatory agencies or bodies which
are necessary or desirable for the ownership of its properties or the
conduct of its business as described in the Prospectus except where any
failures to possess or make the same, singularly or in the aggregate,
would not have a Material Adverse Effect, and the Company has not received
notification of any revocation or modification of any such license,
certificate, authorization or permit and has no reason to believe that any
such license, certificate, authorization or permit will not be renewed.
(r) The Company is not, and after giving effect to the offering of the
Stock and the application of the proceeds thereof as described in the
Prospectus will not 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.
(s) Neither the Company nor any of its officers, directors or, to the
Company's knowledge, its 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.
(t) Except as described in the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding
the date of the Prospectus Supplement, including any sales pursuant to
Rule 144A under, or Regulations D or S under, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(u) To the Company's best knowledge, the Company owns or possesses
adequate rights to use all patents, patent applications, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, trademark registrations,
service marks, service mark registrations, trade names, mask work rights
and other intellectual property necessary to carry on the business now
operated by it or proposed to be operated by it as described in the
Prospectus with respect to Combretastatin product candidates currently the
subject of clinical trials, as well as the TRIS salt and disodium salt
formulations of CA4P (the "Business") (collectively, "Intellectual
Property"), except where the lack of such ownership or rights to use would
not have a Material Adverse Effect. Except as disclosed in the Prospectus,
there is no litigation or other proceeding pending or, to the Company's
knowledge, threatened and no claims are presently being asserted by any
third party challenging or questioning the ownership, validity, or
enforceability of the Company's right to use or own any Intellectual
Property or asserting that the use of any Intellectual Property by the
Company or the operation of the Business infringes upon or misappropriates
the Intellectual Property of any third party, and the Company is unaware
of any facts which would form a reasonable basis for any such claim.
Except as disclosed in the Prospectus, the Company is not otherwise aware
of any infringement of or conflict with asserted rights of others with
respect to any of the Company's Intellectual Property or the operation of
the Business. Except as disclosed in the Prospectus, the Company is not
otherwise aware of any facts or circumstances which would render any of
the Company's Intellectual Property invalid or inadequate to protect the
interests of the Company therein, or with respect to the patent
applications contained in the Intellectual Property, unpatentable. Except
as disclosed in the Prospectus, or as would not, individually or in the
aggregate have a Material Adverse Effect, to the best of the Company's
knowledge, (i) there is no infringement by third parties engaged in
commercial activity of any Intellectual Property of the Company relating
to the Business and (ii) there are no non-commercial activities being
performed by any third parties which, upon commercialization thereof,
could reasonably be expected to infringe on the Intellectual Property of
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the Company. The Company has taken all steps necessary to perfect its
ownership of and interest in the Intellectual Property.
(v) Except as disclosed in the Prospectus, the Company has or believes
that it can obtain in the ordinary course of business when required, all
material licenses, certificates, permits, consents, orders, approvals and
authorizations from United States and foreign government authorities,
including, without limitation, the FDA and any agency of any foreign
government and any other foreign regulatory authority exercising authority
comparable to that of the FDA (including any non-governmental entity whose
approval or authorization is required under foreign law comparable to that
administered by the FDA), in each jurisdiction where the Company's current
product candidates, as described in the Prospectus, are proposed to be
registered for sale (each a "Permit") that are necessary to the ownership
of the Company's property or to the conduct of its business in the manner
and to the extent now conducted, with no material restrictions or
qualifications (assuming no material future changes, which are not
currently proposed, in applicable regulations governing the process of
obtaining such licenses, certificates, permits, consents, orders,
approvals and authorizations). Each issued Permit is currently in full
force and effect, and no proceeding has been instituted or is pending or,
to the best of the Company's knowledge, is contemplated or threatened,
which in any manner adversely affects or draws into question the validity
or effectiveness thereof or relates in any way to the revocation or
modification thereof.
(w) Each Investigational New Drug application ("IND") to the FDA or
similar application to foreign regulatory bodies, and related documents
and information, has been submitted and maintained in compliance in all
material respects with applicable statutes, rules and regulations
administered or promulgated by the FDA or other regulatory body. The
studies, tests and preclinical and clinical trials conducted by or on
behalf of the Company that are described in the Prospectus were and, if
still pending, are being, conducted, to the best of the Company's
knowledge, in all material respects in accordance with experimental
protocols, procedures and controls pursuant to all applicable current Good
Laboratory and Good Clinical Practices and the drug substances used in the
clinical trials have been manufactured under current Good Manufacturing
Practices. The Company uses all commercially reasonable efforts to review,
from time to time, the progress and results of the studies, tests and
preclinical and clinical trials and, based upon (i) the information
provided to the Company by the third parties conducting such studies,
tests and preclinical and clinical trials that are described in the
Prospectus and the Company's review of such information, and (ii) the
Company's actual knowledge, the Company reasonably believes that the
descriptions of the results of such studies, tests and preclinical and
clinical trials are accurate and complete in all material respects. The
Company has not received any notices or correspondence from the FDA or any
foreign, state or local governmental body exercising comparable authority
requiring the termination, suspension or material modification of any
studies, tests or preclinical or clinical trials conducted by or on behalf
of the Company. No filing or submission to the FDA or any other regulatory
body, that is intended to be the basis for any approval of the Company's
product candidates, contains any material omission or material false
information.
(x) The Company has made available to counsel to the Underwriters FDA
and regulatory correspondence logs, and such logs contain complete and
accurate descriptions, in all material respects, of all material
correspondence between the Company on the one hand and the FDA on the
other hand, relating to the clinical trials of the Company's product
candidates under development being conducted under the two
Company-sponsored INDs.
(y) The Company has good and marketable title in fee simple to, or has
valid rights to lease or otherwise use, all items of real or personal
property which are material to the business of the Company taken as a
whole, in each case free and clear of all liens, encumbrances, claims and
defects that may result in a Material Adverse Effect.
(z) No organized labor disturbance by the employees of the Company
exists or, to the best of the Company's knowledge, is imminent which might
be expected to have a Material Adverse Effect. The Company is not aware
that any key employee or significant group of employees of the Company
plans to terminate employment with the Company.
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(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")), which is not otherwise exempt, 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 30-day notice requirement under Section 4043 of ERISA has been waived)
has occurred with respect to any employee benefit plan which could have a
Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the Code;
the Company has not incurred, and does not expect to incur, any liability
under Title IV of ERISA with respect to the termination of, or withdrawal
from, any "pension plan"; and each "pension plan" (as defined in ERISA)
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which could cause the loss of such qualification in such a way as would
result in a Material Adverse Effect.
(bb) 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, to the best of the Company's knowledge, any other
entity for whose acts or omissions the Company is or may be liable) upon
any of the property now or previously owned, controlled or leased by the
Company (or any of its previously owned or controlled subsidiaries), or
upon any other property, in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or which would, under
any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability
under laws, rules and regulations relating to the protection of the
environment, 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; 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 or any of its subsidiaries
have 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.
(cc) The Company and each of its subsidiaries (when any such subsidiaries
were in existence) (i) have filed with all necessary federal, state and
foreign income and franchise tax returns, (ii) have paid all federal
state, local and foreign taxes due and payable for which it is liable, and
(iii) do not have any tax deficiency or claims outstanding or assessed or,
to the best of the Company's knowledge, proposed against it which could
reasonably be expected to have a Material Adverse Effect.
(dd) The Company carries, or is covered by, insurance in such amounts and
covering such risks as it reasonably believes to be adequate for the
conduct of its business and the value of its properties and as it
reasonably believes to be customary for companies engaged in similar
businesses in similar industries.
(ee) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with 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; and the chief executive officer and the chief
financial officer of the Company have made all certifications required by
the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act") and any related
rules and regulations promulgated by the Commission which are applicable
to the Company, and the statements contained in any such certification are
complete and correct.
(ff) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the Exchange Act)
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the
Company's principal executive officer and its principal financial officer
by others within those entities, particularly during the
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periods in which the periodic reports required under the Exchange Act are
being prepared; (ii) provide for the periodic evaluation of the
effectiveness of such disclosure controls and procedures as of the end of
the period covered by the Company's most recent annual or quarterly report
filed with the Commission; and (iii) are effective in all material
respects to perform the functions for which they were established.
(gg) Based on the most recent evaluation of its disclosure controls and
procedures, the Company is not aware of: (i) any significant deficiency in
the design or operation of its internal controls which could adversely
affect the Company's ability to record, process, summarize and report
financial data; (ii) any material weaknesses in internal controls; or
(iii) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company's internal
controls.
(hh) Since the date of the most recent evaluation of such disclosure
controls and procedures, there has been no change in internal control over
financial reporting that occurred during the fiscal quarter ended
September 30, 2005, that has materially affected, or is reasonably likely
to materially affect, the Company's internal control over financial
reporting, including any corrective actions with regard to significant
deficiencies and material weaknesses that would have such a material
effect.
(ii) There are no material off-balance sheet transactions, arrangements,
obligations (including contingent obligations), or any other relationships
not set forth in the Prospectus, with unconsolidated entities or other
persons, that may have a Material Adverse Effect on the Company's
financial condition, changes in financial condition, results of
operations, liquidity, capital expenditures, capital resources, or
significant components of revenues or expenses.
(jj) The minute books of the Company and each of its subsidiaries (for
such periods that any such subsidiaries were in existence) have been made
available to the Underwriters and counsel for the Underwriters, and such
books (i) contain a complete summary of all meetings and actions of the
board of directors (including each board committee) and shareholders of
the Company and each of its subsidiaries since the time of their
respective incorporation through the date of the latest meeting and
action, and (ii) accurately in all material respects reflect all
transactions referred to in such minutes.
(kk) 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 Prospectus or to be filed as an exhibit to the
Registration Statements which is not described or filed therein as
required; and all descriptions of any such franchises, leases, contracts,
agreements or documents contained in, or incorporated by reference to, the
Registration Statements are accurate and complete descriptions of such
documents in all material respects. Other than as described in the
Prospectus, no such franchise, lease, contract or agreement has been
suspended or terminated for convenience or default by the Company or any
of the other parties thereto, and the Company has not received notice, nor
does it 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.
(ll) The statistical and market-related data included in the Prospectus
and the Registration Statement are based on or derived from sources which
the Company believes to be reliable and accurate.
(mm) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(nn) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus and which is not so described.
(oo) No person or entity has the right to require registration of shares
of Common Stock or other securities of the Company because of the filing
or effectiveness of the Registration Statements or otherwise, except for
persons and entities who have expressly waived such right or who have been
given
9
timely and proper notice and have failed to exercise such right within the
time or times required under the terms and conditions of such right.
(pp) The Company does not 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 the
Stock to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(qq) The Company is not a party to any contract, agreement or
understanding with any person that would give rise to a valid claim
against the Company or the Underwriters for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of
the Stock and the Company shall hold the Underwriters harmless from and
against any such fees.
(rr) The Stock is registered under the Exchange Act and is duly listed
and admitted and authorized for trading, subject to official notice of
issuance, on the Nasdaq National Market and the Company has taken no
action that is designed to terminate, or that the Company reasonably
believes is likely to have the effect of terminating, the registration of
the Common Stock under the Exchange Act or delisting or suspending from
trading the Common Stock from Nasdaq, nor has the Company received any
information from the Commission or the NASD suggesting that it is
contemplating terminating or suspending such registration or listing.
(ss) The Company has taken all necessary actions to ensure that, upon and
at all times after Nasdaq shall have approved the Stock for listing, the
Company will be in compliance with all applicable corporate governance
requirements set forth in the Nasdaq Marketplace Rules that are then in
effect and is actively taking steps to ensure that it will be in
compliance with other applicable corporate governance requirements set
forth in the Nasdaq Marketplace Rules not currently in effect upon and all
times after the effectiveness of such requirements.
(tt) Neither the Company 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 or foreign office in violation of any law or of the
character required to be disclosed in the Prospectus.
(uu) 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 under 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 liquidity or the availability of or
requirements for its capital resources required to be described in the
Prospectus which have not been described as required.
(vv) 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 to or for the benefit of any of the officers
or directors of the Company, except as disclosed in the Prospectus.
(ww) There are no affiliations with the NASD among the Company's
officers, directors or, to the best of the knowledge of the Company, any
five percent (5%) or greater stockholder of the Company, except as set
forth in the Registration Statements or the Prospectus or otherwise
disclosed in writing to the Representatives.
(xx) No approval of the shareholders of the Company under the rules and
regulations of any trading market is required for the Company to issue and
deliver the Stock to the Underwriters, including such as may be required
pursuant to Rule 4350 of the Nasdaq Marketplace Rules.
10
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 that number of shares of Firm Stock (rounded up or down, as
determined by SG Cowen in its discretion, in order to avoid fractions) obtained
by multiplying 6,500,000 shares of Firm Stock by a fraction the numerator of
which is the number of shares of Firm Stock set forth opposite the name of such
Underwriter in Schedule A hereto and the denominator of which is the total
number of shares of Firm Stock.
The purchase price per share to be paid by the Underwriters to the Company
for the Stock will be $3.4127 per share (the "Purchase Price").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters through the facilities of the
Depository Trust Company ("DTC") for the account of the applicable Underwriters
against payment of the aggregate Purchase Price therefor by wire transfer to an
account at a bank acceptable to SG Cowen, payable to the order of the Company,
all at the offices of Morrison & Foerster LLP, 1290 Avenue of the Americas, New
York, NY 10104. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. The time and date of the delivery and closing
shall be at 10:00 A.M., New York time, on December 20, 2005, in accordance with
Rule 15c6-1 of the Exchange Act. The time and date of such payment and delivery
are herein referred to as the "First Closing Date". The First Closing Date and
the location of delivery of, and the form of payment for, the Firm Stock may be
varied by agreement between the Company and SG Cowen.
The Company shall make the certificates for the Stock available to the
Representatives for examination on behalf of the Underwriters in New York, New
York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus
Supplement, the Underwriters may purchase all or less than all of the Optional
Stock. The price per share to be paid for the Optional Stock shall be the
Purchase Price. The Company agrees to sell to the Underwriters the number of
shares of Optional Stock specified in the written notice by SG Cowen described
below and the Underwriters agree, severally and not jointly, to purchase such
shares of Optional Stock. Such shares of Optional Stock shall be purchased for
the account of each Underwriter in the same proportion as the number of shares
of Firm Stock set forth opposite such Underwriter's name bears to the total
number of shares of Firm Stock sold in the Offering (subject to adjustment by
the Representatives to eliminate fractions). The option granted hereby may be
exercised as to all or any part of the Optional Stock at any time, and from time
to time, not more than thirty (30) calendar days subsequent to the date of this
Agreement. No Optional Stock shall be sold and delivered unless the Firm Stock
previously has been, or simultaneously is, sold and delivered to and purchased
by the Underwriters in accordance with this Agreement. The right to purchase the
Optional Stock or any portion thereof may be surrendered and terminated at any
time upon notice by SG Cowen to the Company.
The option granted hereby may be exercised by written notice being given
to the Company by SG Cowen setting forth the number of shares of the Optional
Stock to be purchased by the Underwriters and the date and time for delivery of
and payment for the Optional Stock. Each date and time for delivery of and
payment for the Optional Stock (which may be the First Closing Date, but not
earlier) is herein called the "Option Closing Date" and shall in no event be
earlier than two (2) business days nor later than five (5) business days after
written notice is given. (The Option Closing Date and the First Closing Date are
herein each called the "Closing Date" and collectively, the "Closing Dates".)
The Company will deliver the Optional Stock to the Representatives for the
respective accounts of the several Underwriters through the facilities of DTC
for the account of the applicable Underwriters pursuant to instructions given by
the Representatives at or prior to 12:00 Noon, New York time, on the second full
business day preceding the Option Closing Date) against payment of the aggregate
Purchase Price therefor in federal (same day) funds by wire transfer to an
account at a bank acceptable to SG Cowen payable to the order of the Company,
all at the offices of Morrison & Foerster LLP, 1290 Avenue of the Americas, New
York, NY 10104. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. The Company shall make the certificates for the
Optional Stock available to the Representatives for examination on behalf of the
Underwriters in New York, New York not later
11
than 10:00 A.M., New York Time, on the business day preceding the Option Closing
Date. The Option Closing Date and the location of delivery of, and the form of
payment for, the Optional Stock may be varied by agreement between the Company
and SG Cowen.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will prepare a Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and file such Rule
462(b) Registration Statement with the Commission on the date hereof;
prepare the Prospectus Supplement in a form approved by the
Representatives and file such Prospectus Supplement pursuant to Rule
424(b) under the Securities Act not later than the second business day
following the execution and delivery of this Agreement; make no further
amendment or any supplement to the Registration Statements or to the
Prospectus prior to the Option Closing Date to which the Representatives
shall reasonably object by notice to the Company after a reasonable period
to review; advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and furnish the Representatives with
copies thereof; 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 Supplement and for so long as
the delivery of a prospectus is required in connection with the offering
or sale of the Stock, advise the Representatives, 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 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
Statements 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 or the Prospectus or
suspending any such qualification, use promptly all commercially
reasonable efforts to obtain its withdrawal.
(b) The Company represents that it has not made, and agrees that, unless
it obtains the prior written consent of the Representatives, it will not
make, any offer relating to the Stock that would constitute an "issuer
free writing prospectus" (as defined in Rule 433 under the Securities Act)
or that would otherwise constitute a "free writing prospectus" (as defined
in Rule 405 under the Securities Act) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 under the
Securities Act. The Company agrees that (i) it has treated, and will
treat, as the case may be, each free writing prospectus as an issuer free
writing prospectus, and (ii) has complied and will comply, as the case may
be, with the requirements of Rules 164 and 433 under the Securities Act
applicable to any free writing prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
(c) If at any time prior to the expiration of nine months after the date
of the Prospectus Supplement when a prospectus relating to the Stock is
required to be delivered any event occurs 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 any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, or if it is necessary at any time during
such nine month period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus to comply with the Securities Act or the Exchange Act, the
Company will promptly notify the Representatives thereof and upon its
request will prepare an amended or supplemented Prospectus or make an
appropriate filing pursuant to Section 13 or 14 of the Exchange Act which
will correct such statement or omission or effect such compliance. The
Company will furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to time
reasonably request of such amended or supplemented Prospectus; and in case
any Underwriter is required to deliver a prospectus relating to the Stock
nine months or more after the date of the Prospectus Supplement, the
Company upon the request of the Representatives and at the expense of such
Underwriter
12
will prepare promptly an amended or supplemented Prospectus as may be
necessary to permit compliance with the requirements of Section 10(a)(3)
of the Securities Act.
(d) The Company shall promptly furnish to each of the Representatives
and counsel for the Underwriters, a signed copy of each of the
Registration Statements as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and
exhibits filed therewith.
(e) The Company shall promptly deliver to the Representatives in New
York City such number of the following documents as the Representatives
shall reasonably request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits); (ii) each Preliminary
Prospectus; (iii) the Prospectus Supplement (not later than 10:00 a.m.,
New York time, on the business day following the execution and delivery of
this Agreement) and any amended or supplemented Prospectus (not later than
10:00 a.m., New York City time, on the business day following the date of
such amendment or supplement); and (iv) any document incorporated by
reference in the Prospectus (excluding exhibits thereto).
(f) The Company shall 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 the Initial Registration Statement (as defined
in Rule 158(c) under the Securities Act), an earnings statement of the
Company (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 under the Securities Act).
(g) The Company shall promptly take from time to time such actions as
the Representatives may reasonably request to qualify the Stock for
offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and to continue such
qualifications in effect for so long as required for the distribution of
the Stock; provided, that the Company shall not be obligated to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified
or to file a general consent to service of process in any jurisdiction.
(h) During the five (5) year period commencing upon the date hereof, the
Company will deliver to the Representatives and, upon request, to each of
the other Underwriters, (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 by the Company with the Commission pursuant to the
Exchange Act or any national securities exchange or automatic quotation
system on which the Stock is listed or quoted. Such delivery requirements
shall be deemed satisfied by the filing of any such documents on the
Commission's EDGAR filing system, with respect to any documents so filed.
(i) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock for a period of 90 days from the date of the Prospectus
Supplement (the "Lock-Up Period") without the prior written consent of SG
Cowen other than the Company's sale of the Stock hereunder and the
issuance of shares pursuant to (i) employee benefit plans, equity
incentive plans or other employee compensation plans as in existence on
the date hereof and as described in the Prospectus or (ii) currently
outstanding options, warrants or rights; provided, however, that if (1)
during the last 17 days of the 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 Lock-Up Period, the
Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 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
SG Cowen waives, in writing, such extension. The Company will cause each
officer and director listed in Schedule B to furnish to the
Representatives, prior to the First Closing Date, a letter, substantially
in the form of Exhibit A hereto.
13
(j) The Company will supply the Representatives and their counsel 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.
(k) Prior to each of the Closing Dates, the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for any
periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(l) Prior to each of the Closing Dates, the Company will not 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
Representatives are notified), without the prior written consent of the
Representatives (which consent shall not be unreasonably withheld or
delayed), unless in the judgment of the Company and its counsel, and after
notification to the Representatives, such press release or communication
is required by law.
(m) In connection with the offering of the Stock, until SG Cowen shall
have notified the Company of the completion of the resale of the Stock,
the Company will not, and will use its best reasonable efforts to 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 Company's Common Stock.
(n) The Company shall at all times comply with all applicable provisions
of the Sarbanes-Oxley Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus under the heading "Use of Proceeds".
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriters to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock 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, as the case may
be, of the Registration Statements, Preliminary Prospectus, Preliminary
Prospectus Supplement, Prospectus, Prospectus Supplement, any amendments,
supplements and exhibits thereto or any document incorporated by reference
therein, the costs of printing, reproducing and distributing the "Agreement
Among Underwriters" between the Representatives and the Underwriters, the Master
Selected Dealers' Agreement, the Underwriters' Questionnaire and this Agreement
by mail, telex or other means of communications, (d) the fees and expenses
(including the reasonable related fees and expenses of counsel for the
Underwriters) incurred in connection with filings made with the NASD, (e) any
applicable listing or other similar fees, (f) the fees and expenses of
qualifying the Stock under the securities laws of the several jurisdictions as
provided in Section 4(g) and of preparing, printing and distributing blue sky
memoranda and legal investment surveys (including reasonable related fees and
expenses of counsel to the Underwriters), (g) all fees and expenses of the
registrar and transfer agent of the Common Stock, (h) 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
Stock, including the cost of any aircraft chartered in connection with attending
or hosting such meetings and (i) all other costs and expenses incident to 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); provided, that, except as otherwise provided
in this Section 5 and in Section 8, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel, any transfer
taxes on the Stock which they may sell and the expenses of advertising any
offering of the Stock made by the Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of the
several Underwriters hereunder are subject to the accuracy, when made and on
each of the Closing Dates, of the representations and
14
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 shall have been issued and no proceedings for that purpose shall
have been initiated or threatened by the Commission, and any request for
additional information on the part of the Commission (to be included in
the Registration Statements or the Prospectus or otherwise) shall have
been complied with to the reasonable satisfaction of the Representatives.
The Rule 462(b) Registration Statement, if any, and the Prospectus shall
have been timely filed with the Commission in accordance with Section
4(a).
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters,
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.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Stock, the
Registration Statements 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
Underwriters, 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) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the
Company, shall have furnished to the Representatives on each Closing Date,
such counsel's written opinion, as counsel to the Company, addressed to
the Underwriters and dated on each Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Delaware and is duly qualified to do business and is in
good standing as a foreign corporation in the jurisdictions
set forth on a schedule to such opinion, and has the requisite
corporate power and authority to own, hold or lease its
properties and to conduct the business in which it is engaged,
except where the failure to have such power or authority would
not have, singularly or in the aggregate, a Material Adverse
Effect.
(ii) The Company has the authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock
of the Company have been, and the Stock being delivered on the
Closing Date, when issued in accordance with this Agreement
will be, duly authorized, validly issued, and fully paid and
non-assessable, and conform to the description thereof
contained in the Prospectus.
(iii) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of,
any shares of the Stock pursuant to the Company's charter or
by-laws or any agreement or other instrument filed as an
exhibit to the Registration Statement or incorporated by
reference therein, other than this Agreement.
(iv) The Company has the corporate power and authority to execute
and deliver the Underwriting Agreement and the Stock and to
perform its obligations under the Underwriting Agreement. All
corporate action required to be taken for the due and proper
authorization, execution and delivery of the Underwriting
Agreement and the Stock and consummation of the transactions
contemplated by the Underwriting Agreement have been duly and
validly taken.
15
(v) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions
contemplated hereby will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument filed
as an exhibit to the Registration Statement or incorporated by
reference therein, (ii) result in any violation of the Charter
or by-laws of the Company, or (iii) result in the violation of
any applicable statute or any order, rule or regulation, known
to us to be customarily applicable to transactions of this
nature, of any court or governmental agency, or any judgment,
order or decree of which we are aware specifically naming the
Company of any court or governmental agency or body having
jurisdiction over the Company or its properties or assets,
except in the cases of (i) and (iii) where such conflict,
breach or violation would not result in a Material Adverse
Effect. 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 securities laws or Nasdaq in
connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby.
(vii) The statements in the Company's (i) Annual Report on Form 10-K
for the fiscal year ended December 31, 2004, under the
captions "Governmental Regulation and Product Approval", "Risk
Factors - Our products are subject to extensive government
regulation, which results in uncertainties and delays in the
progress of our products through the clinical trial process"
and "Legal Proceedings", (ii) Quarterly Reports on Form 10-Q
for the fiscal quarters ended March 31, 2005, June 30, 2005,
and September 30, 2005, under the caption "Legal Proceedings",
(iii) Initial Registration Statement under the captions
"Description of Common Stock", "Description of Debt
Securities", "Description of Warrants" and "Indemnification of
Directors and Officers" and (iv) Prospectus Supplement under
the captions "Risk Factors - Risks Related to our Business -
We are subject to extensive government regulation, including
the requirement of approval before any of our product
candidates can be marketed, which may result in uncertainties
and delays in the progress of our product candidates through
the clinical trial process", "Risk Factors - Risks Related to
this Offering and our Common Stock - Our Restated Certificate
of Incorporation, our shareholders rights agreement and
Delaware law could defer a change of our management which
could discourage or delay offers to acquire us", to the extent
they constitute summaries of matters of law or regulation or
legal conclusions, have been reviewed by such counsel and
fairly summarize the matters described therein in all material
respects.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending, or proceedings contemplated
by governmental authorities, to which the Company is a party
or of which any property or asset of the Company is the
subject which proceedings are required by Item 103 of
Regulation S-K to be described in the Registration Statement
or Prospectus that are not so described or incorporated by
reference therein.
(ix) The Initial Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Rule 462(b) Registration Statement, if any,
was filed with the Commission on the date specified therein,
the Prospectus Supplement was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued
16
and, to the knowledge of such counsel, no proceeding for that
purpose is pending or, to the knowledge of such counsel,
threatened by the Commission.
(x) The Initial Registration Statement and the Rule 462(b)
Registration Statement, as of their respective effective
dates, as applicable, and the Prospectus, the Preliminary
Prospectus Supplement and the Prospectus Supplement, as of
their respective filing dates, and any further amendments or
supplements thereto, as of their respective dates, made by the
Company prior to the Closing Date (other than the financial
statements and other financial and statistical data contained
therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the
requirements of the Securities Act and the Rules and
Regulations, and the documents incorporated by reference in
the Prospectus and any further amendment or supplement to any
such incorporated document made by the Company prior to the
Closing Date (other than the financial statements and related
schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder.
(xi) To such counsel's knowledge, the Company is not a party to any
contract or agreement of a character required to be described
or incorporated by reference in the Initial Registration
Statement, the 462(b) Registration Statement, the Prospectus
or the Prospectus Supplement or to be filed as an exhibit to
the Initial Registration Statement or the 462(b) Registration
Statement that has not been described or filed as required.
(xii) To such counsel's knowledge, no person or entity has the right
to require registration of shares of Common Stock or other
securities of the Company because of the filing or
effectiveness of the Registration Statement or otherwise,
except for persons and entities who have expressly waived such
right or who have been given proper notice and have failed to
exercise such right within the time or times required under
the terms and conditions of such right.
(xiii) The Company is not an "investment company" within the meaning
of the Investment Company Act and the rules and regulations
of the Commission thereunder.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that (A) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, the
Prospectus, the Preliminary Prospectus Supplement and the Prospectus
Supplement (including all documents incorporated or deemed to be
incorporated by reference therein and the exhibits thereto) and (B) based
on such counsel's examination of the Registration Statement, the
Prospectus, the Preliminary Prospectus Supplement and the Prospectus
Supplement (including all documents incorporated or deemed to be
incorporated by reference therein and the exhibits thereto) and
conferences with certain officers and employees of and with auditors for
the Company as well as the Underwriters and counsel to the Underwriters,
and although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of any
statements contained in the Registration Statement, the Prospectus, the
Preliminary Prospectus Supplement or the Prospectus Supplement, except for
those referred to in the opinion in subsection (vii) of this Section 6(d),
nothing has come to its attention that has led it to believe that the
Initial Registration Statement, as of its effective date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus, the Preliminary Prospectus
Supplement and the Prospectus Supplement, as of their respective dates and
at the date of such opinion letter, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or 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 belief as to the financial
statements or schedules or other financial or statistical data derived
17
from such financial statements and contained therein or included or
incorporated by reference in the Initial Registration Statement, the
Prospectus, the Preliminary Prospectus Supplement or the Prospectus
Supplement.
(e) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., intellectual
property counsel to the Company, shall have furnished to the
Representatives on each Closing Date, such counsel's written opinion, as
counsel to the Company, addressed to the Underwriters and dated on each
Closing Date, in form and substance substantially similar to that set
forth in Exhibit B hereto.
(f) The Representatives shall have received from Morrison & Foerster
LLP, counsel for the Underwriters, on each Closing Date, such opinion or
opinions, dated as of such Closing Date, with respect to such matters as
the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, the Representatives
shall have received from Ernst & Young LLP a letter, addressed to the
Underwriters and dated such date, in form and substance satisfactory to
the Representatives, (i) confirming that they are independent certified
registered public accountants with respect to the Company within the
meaning of the Securities Act and the Rules and Regulations and (ii)
stating the conclusions and findings of such firm with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Prospectus.
(h) On each Closing Date, the Representatives shall have received a
letter (the "bring-down letter") from Ernst & Young LLP addressed to the
Underwriters and dated as of such 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 Prospectus, as of a date not more than three
business days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representatives
concurrently with the execution of this Agreement pursuant to Section
6(g).
(i) The Company shall have furnished to the Representatives on each
Closing Date a certificate, dated as of such 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 Statements, the Prospectus and, in their opinion, the
Registration Statements as of their respective effective dates and the
Prospectus (including the Preliminary Prospectus Supplement and the
Prospectus Supplement and all documents included by reference in the
Prospectus), as of the respective dates thereof, 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, (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 Statements or the
Prospectus that was not so set forth, (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) subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Company, or any change, or any
development including a prospective material adverse change, in or
affecting the condition (financial or otherwise), results of operations,
business or prospects of the Company taken as a whole, except as set forth
in the Prospectus.
(j) The Company shall not have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus (i) any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any organized labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
(ii), except as disclosed in the Registration Statements and the
Prospectus, the Company shall not have (A) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money, except such liabilities or obligations incurred in the ordinary
course of business, (B) entered into any transaction not in the ordinary
course of business or (C) declared or paid any dividend or made any
18
distribution on any shares of its capital stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its capital stock.
(k) No action shall have been taken by, and no statute, rule, regulation
or order shall have been enacted, adopted or issued by, any governmental
agency or body which would, as of any Closing Date, prevent the issuance
or sale of the Stock or materially and adversely affect, or which is, as
of any Closing Date, reasonably expected to materially and adversely
affect, the business or operations of the Company; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Stock or materially
and adversely affect, or which is, as of any Closing Date, reasonably
expected to materially and adversely affect, the business or operations of
the Company.
(l) 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 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 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 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, or the subject of an act of terrorism,
or 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 in the United States (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 Representatives, impracticable or inadvisable
to proceed with the sale or delivery of the Stock on the terms and in the
manner contemplated in the Prospectus Supplement.
(m) The Company shall have filed such applications and paid such fees as
are necessary to include the Stock on the Nasdaq National Market System
and satisfactory evidence of such actions shall have been provided to the
Representatives.
(n) SG Cowen shall have received the written agreements, substantially
in the form of Exhibit A hereto, of the officers and directors of the
Company listed in Schedule B to this Agreement.
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 Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers, employees, representatives and agents and each person, if any,
who controls any Underwriter within the meaning of the Securities Act
(collectively the "Underwriter Indemnified Parties" and, each an
"Underwriter Indemnified Party") against any loss, claim, damage,
liability or expense, joint or several, or any action in respect thereof,
to which that Underwriter Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or expense, or any action in respect thereof, arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Prospectus Supplement, the
Prospectus Supplement, the Registration Statements, the Prospectus or any
issuer free writing prospectus or, in each case, in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in
the Preliminary Prospectus Supplement, the Prospectus Supplement, the
Registration Statements, the Prospectus or any issuer free writing
prospectus, or, in each case, in any amendment or supplement thereto, a
material fact required to be stated therein or necessary to make the
statements therein not misleading and shall reimburse each Underwriter
Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter Indemnified Party in connection
with investigating or preparing to defend or defending against or
19
appearing as a third party witness in connection with any such loss,
claim, damage, liability or expense, or any action in respect thereof, as
such 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, liability or expense, or any action in respect thereof, arises out
of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary Prospectus Supplement,
the Prospectus Supplement, the Registration Statements or the Prospectus
or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for use
therein, which information the parties hereto agree is limited to the
Underwriters' 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
Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers, employees, representatives and
agents, each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively the
"Company Indemnified Parties" and each a "Company Indemnified Party"),
against any loss, claim, damage, liability or expense, joint or several,
or any action in respect thereof, to which the Company Indemnified Parties
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or expense, or any action in respect
thereof, arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Prospectus Supplement, the Prospectus Supplement, the Registration
Statements or the Prospectus or in any amendment or supplement thereto or
(ii) 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, 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 through the Representatives by or on behalf of that
Underwriter specifically for use therein, and shall reimburse the Company
Indemnified Parties for any legal or other expenses reasonably incurred by
such parties 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 or expense, or any action in
respect thereof, as such expenses are incurred; provided, that the parties
hereto hereby agree that such written information provided by the
Underwriters consists solely of the Underwriters' Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in
equity to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or 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 7
except to the extent it has been materially prejudiced by such failure;
and, provided, further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such claim
or 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 thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof 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 thereof but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by counsel satisfactory to the indemnifying party 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 and in the
reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has
failed to assume the defense of such action and employ
20
counsel reasonably satisfactory to the indemnified party, 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 such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions 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 (plus the fees
and expenses of local counsel in any jurisdiction in which claims are
asserted against any indemnified parties), which firm shall be designated
in writing by SG Cowen, if the indemnified parties under this Section 7
consist of any Underwriter Indemnified Party, or by the Company if the
indemnified parties under this Section 7 consist of any Company
Indemnified Parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a) and 7(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense
of any such action or claim. Subject to the provisions of Section 7(d)
below, no indemnifying party shall be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, 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.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses
of counsel to which the indemnified party is entitled to be reimbursed
pursuant to Section 7(c), such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by this Section 7
effected without its written consent if (i) such settlement is entered
into more than 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 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with the request
for reimbursement for fees and expenses of counsel prior to the date of
such settlement.
(e) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a)
or 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or
expense, or action in respect thereof, (i) in such proportion as shall be
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
Stock or 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 with respect to the statements or omissions which resulted in such
loss, claim, damage, liability or expense, or action in respect thereof,
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 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 underwriting discounts and commissions received
by the Underwriters with respect to the Stock purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus Supplement. 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 on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission; provided, that the parties hereto agree
that the written information furnished to the Company through the
Representatives by or on behalf of the Underwriters for use in any
Preliminary Prospectus, either of the Registration Statements or the
Prospectus consists solely of the Underwriters' Information. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(e) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
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, liability or expense, or action in respect thereof,
21
referred to above in this Section 7(e) shall be deemed to include, for
purposes of this Section 7(e), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7(e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public were offered to the
public less the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any 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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting obligations and
not joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by SG Cowen, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 6(j) or 6(l) have
occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement shall have
been terminated pursuant to Section 8 or 10, (b) the Company shall fail to
tender the Stock for delivery to the Underwriters for any reason not permitted
under this Agreement, or (c) the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement, the Company shall reimburse
the Underwriters for the fees and expenses of their 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 SG Cowen. If this
Agreement is terminated pursuant to Section 10 by reason of the default of one
or more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within 48 hours after such
default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Date[s] for a period of not more
than five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement or supplements to
the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except expenses to be paid or
reimbursed pursuant to Sections 5 and 9 and except the provisions of Section 7
shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. 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 sentence 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
22
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 Underwriter Indemnified Parties, and the indemnities of the
several Underwriters shall also be for the benefit of the Company Indemnified
Parties. It is understood that the Underwriters' responsibility to the Company
is solely contractual in nature and the Underwriters do not owe the Company, or
any other party, any fiduciary duty as a result of this Agreement.
12. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company acknowledges and agrees
that:
(a) each Underwriter's responsibility to the Company is solely
contractual in nature, the Representatives have been retained solely to
act as underwriters in connection with the sale of the Stock and no
fiduciary, advisory or agency relationship between the Company and the
Representatives have been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether any of the
Representatives have 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
Representatives, 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 Representatives 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 Representatives have 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 Representatives for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Representatives 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.
13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several Underwriters, 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 any Underwriter, the Company or any person controlling any of them and shall
survive delivery of and payment for the Stock.
14. NOTICES. All statements, requests, notices and agreements hereunder shall
be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to SG Cowen & Co., LLC, 1221 Avenue of the
Americas, New York, New York 10020, Attention: Michelle Bowe (Fax:
212-278-7995);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to OXiGENE, Inc., Attention: Frederick W. Driscoll
(Fax: 781-547-5910), with a copy to Jonathan L. Kravetz, Esq. (Fax:
617-542-2241).
15. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
23
17. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' 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 Underwriters;
and (ii) the statements concerning the Underwriters contained under the heading
"Underwriting."
18. AUTHORITY OF THE REPRESENTATIVES. In connection with this Agreement, you
will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Representatives, will be binding on all the
Underwriters.
19. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph 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.
20. 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 Representatives.
21. 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.
24
If the foregoing is in accordance with your understanding of the agreement
between the Company, and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
OXiGENE, Inc.
By: /s/ Frederick W. Driscoll
-------------------------------------
Name: Frederick W. Driscoll
Title: President and Chief Executive
Officer
Accepted as of
the date first above written:
SG COWEN & CO., LLC
LAZARD CAPITAL MARKETS LLC
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: SG COWEN & CO., LLC
By: /s/ William B. Buchanan, Jr.
-------------------------------------
Name: William B. Buchanan, Jr.
Title: Head of Equity Capital Markets
25
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
- ----
SG Cowen & Co., LLC 3,530,000 529,500
Lazard Capital Markets LLC 2,610,000 391,500
Maxim Group LLC 60,000 9,000
Montgomery & Co., LLC 60,000 9,000
Sanders Morris Harris Inc. 60,000 9,000
WBB Securities, LLC 60,000 9,000
Wedbush Morgan Securities Inc. 60,000 9,000
Wunderlich Securities, Inc. 60,000 9,000
Total 6,500,000 975,000
========= =========
26
SCHEDULE B
Joel-Tomas Citron
Frederick W. Driscoll
James B. Murphy
Arthur B. Laffer
William N. Shiebler
Per-Olof Soderberg
J. Richard Zecher
David Chaplin
Scott Young
Richard Chin