Exhibit 10.1
7,350,000 SHARES
SANTARUS, INC.
SHARES OF COMMON STOCK
($0.0001 PAR VALUE)
PLACEMENT AGENT AGREEMENT
August 16, 2005
SG COWEN & CO., LLC
RBC CAPITAL MARKETS CORPORATION
c/o SG Cowen & Co., LLC
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
Santarus, Inc., a Delaware corporation (the "COMPANY"), proposes to
sell to the Purchasers, pursuant to the terms of this Placement Agent Agreement
(this "AGREEMENT") and the Subscription Agreements in the form of Exhibit A
attached hereto (the "SUBSCRIPTION AGREEMENTS") entered into with the Purchasers
identified therein (each a "PURCHASER" and, collectively, the "PURCHASERS"), an
aggregate of 7,350,000 shares of Common Stock, $0.0001 par value (the "COMMON
STOCK"), of the Company. The aggregate of 7,350,000 shares of Common Stock so
proposed to be sold is hereinafter referred to as the "STOCK." The Company
hereby confirms its agreement with the placement agents named on Schedule I
attached hereto (the "PLACEMENT AGENTS"), as set forth below. SG Cowen & Co.,
LLC is acting as the representative of the Placement Agents and in such capacity
is hereinafter referred to as the "REPRESENTATIVE." Certain terms used herein
are defined in Section 13 hereof.
1. AGREEMENT TO ACT AS PLACEMENT AGENTS; PLACEMENT OF SECURITIES. On the basis
of the representations, warranties and agreements of the Company herein
contained, and subject to all the terms and conditions of this Agreement:
(a) The Company hereby authorizes the Placement Agents to act as its
exclusive agents to solicit offers for the purchase of all or part of
the Stock from the Company in connection with the proposed offering of
the Stock (the "OFFERING"). Until the Closing Date (as defined in
Section 3 hereof), the Company shall not, without the prior consent of
the Representative, solicit or accept offers to purchase the Stock
otherwise than through the Placement Agents.
(b) The Placement Agents agree, as agents of the Company, to use their
reasonable best efforts to solicit offers to purchase the Stock from
the Company on the terms and subject to the conditions set forth in the
Base Prospectus (as defined below) and the Prospectus Supplement (as
defined below). The Placement Agents shall make commercially reasonable
efforts to assist the Company in obtaining performance by each
Purchaser whose offer to purchase Stock has been solicited by the
Placement Agents and accepted by the Company, but the Placement Agents
shall not, except as otherwise provided in this Agreement, be obligated
to disclose the identity of any potential purchaser or have any
liability to the Company in the event any such purchase is not
consummated for any reason. Under no circumstances will the Placement
Agents be obligated to purchase any Stock for their own account and, in
soliciting purchases of Stock, the Placement Agents shall act solely as
the Company's agents and not as principals. Notwithstanding the
foregoing and except as otherwise provided in Section 1(c), it is
understood and agreed that the Placement Agents (or their affiliates)
may, solely at their discretion and without any obligation to do so,
purchase Stock as principals; provided, however, that any such offers
to purchase by the Placement Agents (or their affiliates) shall be
fully disclosed to the Company (including the identity of the
Purchaser) and accepted by the Company in accordance with Section 1(c)
below.
(c) Subject to the provisions of this Section 1, offers for the
purchase of Stock may be solicited by the Placement Agents as agents
for the Company at such times and in such amounts as the Placement
Agents deem advisable. Each Placement Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase Stock
received by it as agent of the Company. The Company shall have the sole
right to accept offers to purchase the Stock and may reject any such
offer, in whole or in part. Each Placement Agent shall have the right,
in its discretion reasonably exercised, subject to providing reasonable
prior notice to the Company, to reject any offer to purchase Stock
received by it, in whole or in part, and any such rejection shall not
be deemed a breach of its agreement contained herein.
(d) The purchases of the Stock by the Purchasers shall be evidenced by
the execution of the Subscription Agreements by each of the parties
thereto.
(e) As compensation for services rendered, on the Closing Date the
Company shall pay to the Placement Agents by wire transfer of
immediately available funds to an account or accounts designated by the
Representative, an amount equal to six percent (6.0%) of the gross
proceeds received by the Company from the sale of the Stock on such
Closing Date.
(f) No Stock which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold
by the Company, until such Stock shall have been delivered to the
Purchaser thereof against payment by such Purchaser. If the Company
shall default in its obligations to deliver Stock to a Purchaser whose
offer it has accepted and who has delivered the requisite payment for
the Stock, the Company shall indemnify and hold the Placement Agent
harmless against any loss, claim or damage arising from or as a result
of such default by the Company.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several Placement Agents and, as provided in
the Subscription Agreements, the Purchasers that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and has
filed with the Securities and Exchange Commission (the "COMMISSION") a
registration statement on such form (Registration File No. 333-124830),
which became effective as of June 16, 2005, for the registration under
the Securities Act of the Stock and certain other securities as
described therein. Such registration statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies
with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations
(the "RULES AND REGULATIONS") of the Commission promulgated thereunder,
a supplement to the form of prospectus included in such registration
statement relating to the placement of the Stock and the plan of
distribution thereof and has advised the Representative of all further
information (financial and other) with respect to the Company required
to be set forth therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the "REGISTRATION STATEMENT;" such prospectus in the
form in which it appears in the Registration Statement is hereinafter
called the "BASE PROSPECTUS;" and the supplemented form of prospectus,
in the form in which it will be filed with the Commission pursuant to
Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the "PROSPECTUS SUPPLEMENT." Any reference herein to
the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the "INCORPORATED DOCUMENTS")
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), on or before the
date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or
the issue date of the Base Prospectus or the Prospectus Supplement, as
the case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "described," "set
forth" or "stated" in the Registration Statement, the Base Prospectus
or the Prospectus Supplement (and all other references of like import)
shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the
use of the Base Prospectus or the Prospectus Supplement has been
issued, and no proceeding for any such purpose is pending or, to the
best of the Company's knowledge, has been initiated or threatened by
the Commission.
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(b) The Registration Statement (and any further documents to be filed
with the Commission) contains all exhibits and schedules as required by
the Securities Act. Each of the Registration Statement and any
post-effective amendment thereto, at the time it became effective,
complied in all material respects with the Securities Act and the
Exchange Act and the applicable Rules and Regulations and did not and,
as amended or supplemented, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus and the Prospectus Supplement, each as
of its respective date, comply in all material respects with the
Securities Act and the Exchange Act and the applicable Rules and
Regulations. Each of the Base Prospectus and the Prospectus Supplement,
as amended or supplemented, did not and will not contain as of the date
thereof any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange
Act and the applicable Rules and Regulations, and none of such
documents, when they were filed with the Commission, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Base
Prospectus or Prospectus Supplement, when such documents are filed with
the Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and
Regulations, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein not misleading. Notwithstanding the foregoing,
the Company makes no representations or warranties as to information,
if any, contained in or omitted from the Prospectus Supplement or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Placement Agent specifically for use in the
Registration Statement or the Prospectus Supplement, which information
the parties hereto agree is limited to the Placement Agents'
Information as defined in Section 15. No post-effective amendment to
the Registration Statement reflecting any facts or events arising after
the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to
be filed with the Commission. There are no documents required to be
filed with the Commission in connection with the transaction
contemplated hereby that (x) have not been filed as required pursuant
to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be
described in the Base Prospectus or Prospectus Supplement, or to be
filed as exhibits or schedules to the Registration Statement, which
have not been described or filed as required.
(c) The Company has delivered, or will as promptly as practicable
deliver, to the Representative complete conformed copies of the
Registration Statement and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits) and the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such
places as the Representative reasonably requests. Neither the Company
nor any of its directors and
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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 Base
Prospectus, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act.
(d) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware, is duly qualified
to do business and is in good standing (or the equivalent thereof, if
any) 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 businesses in which it is
engaged, except where the failure to be so qualified and in good
standing 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, properties or prospects
of the Company taken as a whole (a "MATERIAL ADVERSE EFFECT").
(e) The Stock to be issued and sold by the Company hereunder and under
the Subscription Agreements has been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein
and therein, will be duly and validly issued, fully paid and
nonassessable and free of any preemptive or similar rights. The Stock
conforms to the description thereof contained in, or incorporated by
reference in, the Base Prospectus and the Prospectus Supplement.
(f) The Company has an authorized capitalization as set forth in, or
incorporated by reference in, the Base Prospectus and the Prospectus
Supplement; all of the issued and outstanding shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable, have been issued in compliance with
federal and state securities laws, and conform to the description
thereof contained in, or incorporated by reference in, the Base
Prospectus and the Prospectus Supplement. 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, other than such rights that
have been waived. Other than options granted by the Company in the
ordinary course of business since June 30, 2005, 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 that have been granted by the Company
other than those accurately described in, or incorporated by reference
in, the Base Prospectus and the Prospectus Supplement.
(g) The Company has the full right, power and authority to enter into
this Agreement and each of the Subscription Agreements and to perform
and to discharge its obligations hereunder and thereunder; and each of
this Agreement and each of the Subscription Agreements has been duly
authorized, executed and delivered by the Company, and constitutes a
valid and binding obligation of the Company enforceable in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally
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and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as the indemnification
agreements of the Company herein may be legally unenforceable.
(h) The execution, delivery and performance of this Agreement and the
Subscription Agreements by the Company and the consummation of the
transactions contemplated hereby and thereby 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, except any such
conflicts, breaches or violations which would not reasonably be
expected to have a Material Adverse Effect, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any statute, law, rule or regulation or any judgment,
order or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets.
(i) There is no franchise, contract, lease, instrument or other
document of a character required by the Securities Act or the Rules and
Regulations to be described in the Base Prospectus and the Prospectus
Supplement, or to be filed as an exhibit to the Registration Statement,
which is not described or filed as required, including, but not limited
to, exhibit filings with the Incorporated Documents; and all statements
summarizing any such franchises, contracts, leases, instruments or
other documents or legal matters contained in the Registration
Statement are accurate and complete in all material respects. Other
than as described in, or incorporated by reference in, the Base
Prospectus and the Prospectus Supplement, no such franchise, contract,
lease, instrument or other document has been suspended or terminated
for convenience or default by the Company or any of the other parties
thereto, the Company has not sent or received any communication
regarding intent not to renew any such franchise, contract, lease,
instrument or other document, and the Company has not received notice
or any other knowledge of any such pending or threatened suspension,
termination or non-renewal, except for such pending or threatened
suspensions, terminations or non-renewals that would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse
Effect.
(j) 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 Base Prospectus and the
Prospectus Supplement (including those that may be required by the U.S.
Food and Drug Administration (the "FDA") and any state, federal or
foreign agencies or bodies engaged in the regulation of
pharmaceuticals) 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, authorization or permit and has no
reason to believe that any such license, certificate, authorization or
permit will not be renewed.
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(k) The minute books of the Company have been made available to the
Placement Agents and counsel for the Placement Agents, and such books
(i) contain a complete summary of all meetings and actions of the board
of directors (including each board committee) and stockholders of the
Company since the time of its incorporation through the date of the
latest meeting and action, subject to formal approval by the board or
applicable board committee of minutes marked as "drafts," and (ii)
accurately in all material respects reflect all transactions referred
to in such minutes.
(l) No consent, approval, authorization, filing with or order of or
registration with, any court or governmental agency or body is required
in connection with the transactions contemplated herein or in the
Subscription Agreements, except such as (i) have been obtained or made
under the Securities Act or the Exchange Act, (ii) may be required from
the National Association of Securities Dealers and the Nasdaq National
Market in connection with the purchase and sale of the Stock, and (iii)
may be required under the securities, or blue sky, laws of any
jurisdiction in connection with the offer and sale of the Stock by the
Company in the manner contemplated herein and in the Base Prospectus
and the Prospectus Supplement.
(m) Except as provided herein, no person has the right to act as an
underwriter, placement agent or financial advisor to the Company in
connection with and as a result of the offer and sale of the Shares,
whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or
otherwise; except as described in, or incorporated by reference in, the
Base Prospectus and the Prospectus Supplement, no person has the right,
contractual or otherwise, to cause the Company to register under the
Securities Act any shares of Common Stock or shares of any other
capital stock or other securities of the Company, or to include any
such shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Stock as
contemplated hereby or otherwise, except for persons and entities who
have expressly waived such right or had such right waived on their
behalf or who have been given 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, and the Company is not required to
file any registration statement for the registration of any securities
of any person or register any such securities pursuant to any other
registration statement filed by the Company under the Securities Act
for a period of at least 90 days after the date hereof, subject to the
determination of the Board of Directors of the Company set forth in
Sections 2.2(c) and 2.4(d) of that certain Amended and Restated
Investors' Rights Agreement, dated as of April 30, 2003, as amended.
(n) The financial statements, together with the related notes and
schedules, of the Company included in the Base Prospectus, the
Prospectus Supplement or the Registration Statement, or incorporated by
reference therein, as the case may be, fairly present the financial
condition and results of operations of the Company as of the dates and
for the periods indicated, comply in all material respects with the
Securities Act and the Rules and Regulations thereunder, and have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved except as
may be set forth in the Base Prospectus, the Prospectus Supplement or
the Registration Statement; provided, however, that statements that are
unaudited are
7
subject to year-end adjustments and do not contain footnotes required
under generally accepted accounting principles. 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 Base Prospectus, the Prospectus Supplement or the Registration
Statement, or incorporated by reference therein, as the case may be.
(o) Except as set forth in, or incorporated by reference in, the Base
Prospectus and the Prospectus Supplement, 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 is the subject which
singularly or in the aggregate, if determined adversely to the Company,
might 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) Except as described in, or incorporated by reference in, the Base
Prospectus and the Prospectus Supplement, the Company has good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real or personal property which are
material to its business, in each case free and clear of all liens,
encumbrances, claims and defects that may result in a Material Adverse
Effect.
(q) The Company is not (i) in violation of its charter or bylaws, (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 of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant 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 law, ordinance, governmental rule, regulation, or court
decree to which it or its properties or assets may be subject, except
any violations or defaults which, singularly or in the aggregate, would
not have a Material Adverse Effect.
(r) No 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, which might be expected
to have a Material Adverse Effect.
(s) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time
to time (the "CODE")) or "accumulated funding deficiency" (as defined
in Section 302 of ERISA) or any of the events set forth in Section
4043(b) of ERISA (other than events with respect to which the 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
liability
8
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.
(t) The Company carries, or is covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of its business
and the value of its properties and as is customary for companies
engaged in similar businesses in similar industries.
(u) There is no pending or threatened action, suit, claim or proceeding
which may cause any such Permit to be limited, revoked, cancelled,
suspended, modified or not renewed and the Company has not received any
notice of proceedings relating to the limitation, revocation,
cancellation, suspension, modification or non-renewal of any such
Permit which, singularly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated by the Base
Prospectus or the Prospectus Supplement.
(v) Ernst & Young LLP, who have expressed their opinions on certain
audited financial statements of the Company included in the Base
Prospectus, the Prospectus Supplement or the Registration Statement, or
incorporated by reference therein, as the case may be, are independent
registered public accountants with respect to the Company within the
meaning of the Securities Act and the Rules and Regulations.
(v) The Company (i) has filed all necessary federal, state and foreign
income and franchise tax returns, except where the failure to do so
would not have a Material Adverse Effect, (ii) has paid all federal,
state, local and foreign taxes due and payable for which it is liable,
except to the extent such taxes are being contested in good faith, and
(iii) does 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.
(w) The principal executive officer and principal financial officer of
the Company have made all certifications required by the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "SARBANES-OXLEY ACT"), and the statements contained in
any such certification are complete and correct. The Company maintains
"disclosure controls and procedures" (as defined in Rule 13a-14(c)
under the Exchange Act), and such controls and procedures are
reasonably designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the
Exchange Act is (i) recorded, processed, summarized and reported,
within the time periods specified in the Commission's rules and forms
and (ii) accumulated and communicated to the Company's management,
including its principal executive officer and principal financial
officer, as appropriate to allow timely decisions regarding required
disclosure. The Company does not have any material weaknesses in
internal controls, and there has been no reported fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company's
9
internal controls. The Company is otherwise in compliance in all
respects with all applicable effective provisions of the Sarbanes-Oxley
Act and the rules and regulations promulgated by the Commission (and
intends to comply with all applicable provisions that are not yet
effective upon effectiveness).
(x) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability of
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 the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(y) 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 or leased by
the Company, 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, 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
has knowledge, except for any such disposal, discharge, emission or
other release of any kind which would not have, singularly or in the
aggregate with all such discharges and other releases, a Material
Adverse Effect.
(z) The Company owns or possesses the right to use all patents,
trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Prospectus as being owned by it for
the conduct of its business as now conducted and as proposed to be
conducted or otherwise necessary or used in connection with the
commercialization of the Company's existing marketed product and the
Company's products specifically described in the Base Prospectus and
the Prospectus Supplement as being under development (collectively, the
"COMPANY INTELLECTUAL PROPERTY"), and, except as described in, or
incorporated by reference in, the Base Prospectus and the Prospectus
Supplement, the Company is not aware of any claim to the contrary or
any challenge by any other person to the rights of the Company with
respect to the foregoing. To the best of the Company's knowledge, none
of the patents owned or licensed by the Company is unenforceable or
invalid, and none of the patent applications owned or licensed by the
Company would be unenforceable or invalid if issued as patents. The
Company is not obligated to pay a royalty, grant a license or provide
other consideration to any third
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person in connection with the Company Intellectual Property other than
as described in, or incorporated by reference in, the Base Prospectus
and the Prospectus Supplement. To the best of the Company's knowledge,
the Company's business as now conducted and as proposed to be conducted
does not and will not infringe or conflict with any valid intellectual
property or franchise right, including patents, trademarks, service
marks, trade names, copyrights, trade secrets or licenses of any
person, except as described in the Prospectus or as would not have a
Material Adverse Effect. Except as described in the Prospectus and for
claims relating to trademarks that are not material to the business of
the Company, no written claim has been made against the Company
alleging the infringement by the Company of any patent, trademark,
service mark, trade name, copyright, trade secret, license in or other
intellectual property right or franchise right of any person.
(aa) The studies, tests and preclinical and clinical trials conducted
by or on behalf of the Company that are described or referred to in the
Base Prospectus or Prospectus Supplement were and, if still pending,
are being conducted in material compliance with applicable regulatory
requirements. The descriptions of the results of such studies, tests
and trials contained or referred to in the Base Prospectus or
Prospectus Supplement are accurate and complete in all material
respects. The Company is not aware of any studies, tests or trials the
results of which the Company believes reasonably call into question in
any material respect the clinical trial results described or referred
to in the Base Prospectus or Prospectus Supplement when viewed in the
context in which such results are described and the clinical state of
development. 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. For the
avoidance of doubt, the Company makes no representation or warranty
that the results of any studies, tests or preclinical or clinical
trials conducted by or on behalf of the Company will be sufficient to
obtain governmental approval from the FDA or any foreign, state or
local governmental body exercising comparable authority.
(bb) 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 any of the Securities to be considered a "purpose credit"
within the meanings of Regulation T, U or X of the Federal Reserve
Board.
(cc) 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, or incorporated by reference in, the Base
Prospectus and the Prospectus Supplement and which is not so described.
11
(dd) The Company is not and, after giving effect to the offering and
sale of the Stock and the application of the proceeds thereof as
described in the Base Prospectus and the Prospectus Supplement, will
not become an "INVESTMENT COMPANY" as defined in the Investment Company
Act of 1940, as amended.
(ee) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in
the Base Prospectus and the Prospectus Supplement has been made or
reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(ff) Other than as contemplated by this Agreement, 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 Placement
Agents for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Stock.
(gg) The Company has not sustained, since the date of the latest
audited financial statements included in the Base Prospectus, the
Prospectus Supplement or the Registration Statement, or incorporated by
reference therein, as the case may be, any material loss or
interference with its business from fire, explosion, flood, terrorist
act or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth in or contemplated by the Base Prospectus
and the Prospectus Supplement; and, since such date, 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, otherwise than as set forth or contemplated
in the Base Prospectus Prospectus and the Prospectus Supplement or the
issuance of shares of Common Stock upon exercise of stock options and
warrants disclosed as outstanding in, or incorporated by reference in,
the Registration Statement, the Base Prospectus and the Prospectus
Supplement and the grant of options under existing stock option plans
described in, or incorporated by reference in, the Registration
Statement, the Base Prospectus and the Prospectus Supplement.
(hh) Except as set forth in, incorporated by reference in, or as
otherwise contemplated by, the Registration Statement, the Base
Prospectus or the Prospectus Supplement, subsequent to the respective
dates as of which information is given in the Registration Statement,
the Base Prospectus and the Prospectus Supplement, there has not been
(i) any material adverse change, or any development that would
reasonably be expected to result in a material adverse change, in the
business, properties, management, financial condition or results of
operations of the Company taken as a whole, (ii) any transaction which
is material to the Company taken as a whole, (iii) any obligation,
direct or contingent (including any off-balance sheet obligations),
incurred by the Company outside the ordinary course of business, which
is material to the Company taken as a whole, (iv) any change in the
capital stock (other than the issuance of shares of Common Stock upon
exercise of stock options and warrants disclosed as outstanding in, or
incorporated by reference in, the Registration Statement, the Base
Prospectus and the Prospectus Supplement and the grant of options under
existing stock option plans described in, or
12
incorporated by reference in, the Registration Statement, the Base
Prospectus and the Prospectus Supplement) or outstanding indebtedness
of the Company or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company.
(ii) Any statistical and market-related data included in the
Registration Statement, the Base Prospectus or the Prospectus
Supplement are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the
written consent or otherwise has the right to the use of such data from
such sources to the extent required.
(jj) 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 ("NASDAQ") and the Company has
taken no action designed to terminate, or 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, except as described in the Registration Statement, Base Prospectus
and Prospectus Supplement, has the Company received any information
suggesting that the Commission or the National Association of
Securities Dealers, Inc. ("NASD") is contemplating terminating or
suspending such registration or listing.
(kk) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any action
designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might
in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the
Company.
(ll) To the best of the Company's knowledge, there are no affiliations
with the NASD among the Company's officers, directors or any five
percent or greater stockholder of the Company, except as set forth in
the Base Prospectus, the Prospectus Supplement or the Registration
Statement or otherwise disclosed in writing to the Representative.
(mm) There are no outstanding loans, advances (except normal advances
for business expense in the ordinary course of business) or guarantees
of indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company, except as disclosed in the Base
Prospectus, the Prospectus Supplement or the Registration Statement.
(nn) There are no transactions, arrangements or other relationships
between and/or among the Company, any of its affiliates (as such term
is defined in Rule 405 of the Securities Act) and any unconsolidated
entity, including, but not limited to, any structured finance, special
purpose or limited purpose entity that could reasonably be expected to
materially affect the Company's 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.
13
(oo) The Company is and will be in compliance with all applicable
corporate governance requirements set forth in the Nasdaq National
Marketplace Rules that are currently 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 National
Marketplace Rules not currently in effect upon and all times after the
effectiveness of such requirements.
(pp) No approval of the stockholders of the Company under the rules and
regulations of any trading market is required for the Company to issue
and deliver to the Purchasers the Stock on the terms set forth in the
Prospectus Supplement, including such as may be required pursuant to
Rule 4350 of the Nasdaq National Marketplace Rules.
Any certificate signed by any officer of the Company and delivered to
the Placement Agents or counsel for the Placement Agents in connection with the
offering of the Stock shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to the Placement Agents and the
Purchasers.
3. THE CLOSING. The time and date of closing and delivery of the documents
required to be delivered to the Placement Agent pursuant to Section 6 hereof
shall be at 10:00 A.M., local time, on August 22, 2005 (the "CLOSING DATE") at
the offices of Latham & Watkins LLP located at 12636 High Bluff Drive, Suite
400, San Diego, CA 92130.
4. Further Agreements of the Company. The Company agrees with the Placement
Agents:
(a) (i) to make no further amendment or supplement prior to the Closing
Date to the Registration Statement or any amendment or supplement to
the Prospectus Supplement, without the prior written consent of the
Placement Agent, which consent shall not be unreasonably withheld; (ii)
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Stock, to advise the Representative
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 Supplement or any amended
Prospectus Supplement has been filed and to furnish the Representative
with copies thereof; (iii) to file all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission and Nasdaq pursuant to Section 13(a), 15 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; (iv) to advise the
Representative, promptly after it receives notices thereof, (x) of any
request by the Commission to amend the Registration Statement or to
amend or supplement the Prospectus Supplement or for additional
information and (y) of the issuance by the Commission, of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or any order directed at any
Incorporated Document or any amendment or supplement thereto or any
order preventing or suspending the use of the Base Prospectus or the
Prospectus Supplement or any amendment or supplement thereto, of the
suspension of the qualification of the Stock for offering or sale in
any jurisdiction, of the institution or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
Supplement or for additional information; and, (v) in the event of the
issuance
14
of any stop order or of any order preventing or suspending the use of
the Base Prospectus or Prospectus Supplement or suspending any such
qualification, promptly to use its reasonable best efforts to obtain
the withdrawal of such order.
(b) To comply with the Securities Act and the Exchange Act, and the
Rules and Regulations thereunder, so as to permit the completion of the
distribution of the Stock as contemplated in this Agreement and the
Prospectus Supplement. If during the period in which a prospectus is
required by law to be delivered by a Placement Agent or a dealer in
connection with the distribution of Stock contemplated by the
Prospectus Supplement, any event shall occur as a result of which, in
the judgment of the Company or in the reasonable opinion of the
Placement Agents or counsel for the Placement Agents, it becomes
necessary to amend or supplement the Prospectus Supplement in order to
make the statements therein, in the light of the circumstances existing
at the time the Prospectus Supplement is delivered to a purchaser, not
misleading, or, if it is necessary at any time to amend or supplement
the Prospectus Supplement to comply with any law, the Company promptly
will prepare and file with the Commission, and furnish at its own
expense to the Representative and to dealers, an appropriate amendment
to the Registration Statement or supplement to the Prospectus
Supplement so that the Prospectus Supplement as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus Supplement will
comply with such law. Before amending the Registration Statement or
supplementing the Base Prospectus in connection with the Offering, the
Company will furnish the Representative with a copy of such proposed
amendment or supplement and will not file such amendment or supplement
to which the Representative reasonably objects.
(c) To furnish promptly to the Representative and to counsel for the
Placement Agents a copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(d) To deliver promptly to the Representative such number of the
following documents as the Representative shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits), (ii) the Base 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
amendment or supplement thereto (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
Base Prospectus or Prospectus Supplement. The Company will pay the
expenses of printing or other production of all documents relating to
the Offering.
(e) To make generally available to its stockholders and the
Representative as soon as practicable, but in any event not later than
eighteen months after the effective date of the 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).
15
(f) To promptly take from time to time such actions as the
Representative may reasonably request to qualify the Stock for offering
and sale under the securities, or blue sky, laws of such jurisdictions
(including without limitation any post-filing requirements) as the
Representative may designate and to continue such qualifications in
effect for so long as required for the distribution of the Stock, and
the Company will pay the fee of the NASD in connection with its review
of the Offering, if applicable. 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.
(g) Not to 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 without the prior written consent of the Representative,
other than the Company's sale of the Stock hereunder and the issuance
of shares of Common Stock or securities convertible into or exercisable
or exchangeable for Common Stock pursuant to (i) employee benefit
plans, qualified stock option plans or other employee compensation
plans existing on the date hereof or described in, or incorporated by
reference in, the Base Prospectus or the Prospectus Supplement, (ii)
currently outstanding options, warrants or rights, (iii) a joint
venture, collaboration, co-promotion, lending or similar arrangement,
or in connection with the acquisition or license by the Company of any
business, products or technologies or (iv) a strategic partnership,
joint venture, collaboration or similar arrangement for the purposes of
developing, promoting, marketing or distributing the Company's current
product candidates (which product candidates are described in the Base
Prospectus or the Prospectus Supplement); provided, however, that, if
(1) during the period that begins on the date that is 15 calendar days
plus 3 business days before the last day of the 90-day restricted
period and ends on the last day of the 90-day restricted period, the
Company issues a earnings release or material news or a material event
relating to the Company occurs or (2) prior to the expiration of the
90-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of
the 90-day period, the restrictions imposed by this section shall
continue to apply until the expiration of the date that is 15 calendar
days plus 3 business days after the date on which the issuance of the
earnings release or the material news or material event occurs. The
Company will cause each of its executive officers and directors to
furnish to the Placement Agents, prior to the Closing Date, a letter,
substantially in the form of Exhibit B attached hereto, pursuant to
which each such person shall agree not to 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, without the prior written
consent of Representative.
(h) Prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or
earnings, business affairs or business prospects (except for routine
oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the
Representative is
16
notified), without the prior written consent of the Representative,
unless in the judgment of the Company and its counsel, and after
notification to the Representative, such press release or communication
is required by law.
(i) To apply the net proceeds from the sale of the Stock as set forth
in the Prospectus Supplement under the heading "USE OF PROCEEDS."
(j) To comply in all material respects with all applicable securities
and other applicable laws, rules and regulations, including, without
limitation, the Sarbanes-Oxley Act, and use its best efforts to cause
the Company's directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without
limitation, the provisions of the Sarbanes-Oxley Act.
(k) To engage and maintain, at its expense, a registrar and transfer
agent for the Stock.
(l) To not take any action prior to the Closing Date which would
require the Prospectus Supplement to be amended or supplemented
pursuant to Section 4(b).
(m) To supply the Representative 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.
(n) The Company will use its best efforts to ensure that the Stock is
quoted on the Nasdaq National Market at the Closing Date.
5. Payment of Expenses. The Company agrees with the Placement Agents to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock to the Purchasers and any taxes payable in that
connection; (b) the costs incident to the Registration of the Stock under the
Securities Act; (c) the costs incident to the preparation, printing and
distribution of the Registration Statement, Base Prospectus and Prospectus
Supplement and any amendments and exhibits thereto or any document incorporated
by reference therein, and the costs of printing, reproducing and distributing,
this Agreement by mail, telex or other means of communication; (d) the fees and
expenses (including related fees and expenses of counsel for the Placement
Agents) incurred in connection with filings, if any, made with the NASD, if
applicable, not to exceed $10,000; (e) any applicable Nasdaq National Market
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(f) and of preparing, printing and distributing Blue Sky Memoranda (including
related fees and expenses of counsel to the Placement Agents, not to exceed
$10,000); (g) all fees and expenses of the registrar and transfer agent of the
Stock; and (h) all other costs and expenses incident to the Company's
performance of its obligations under this Agreement (including, without
limitation, the fees and expenses of the Company's counsel and the Company's
independent accountants and the travel and other expenses incurred by Company
personnel in connection with any "roadshow" including, without limitation, any
expenses advanced by the Placement Agents on the Company's behalf (which will be
promptly reimbursed)); provided that, except as otherwise provided in this
Section 5 and in Sections 7 and 9, the Placement Agents shall pay their own
costs and expenses.
17
6. CONDITIONS TO THE OBLIGATIONS OF THE PLACEMENT AGENTS AND THE PURCHASERS, AND
THE SALE OF THE STOCK. The respective obligations of the Placement Agents and
the Purchasers, and the closing of the sale of the Stock hereunder are subject
to the accuracy, when made and on the Closing Date, of the representations and
warranties on the part 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 their 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 Statement, the Base Prospectus or the
Prospectus Supplement or otherwise) shall have been complied with to
the reasonable satisfaction of the Representative. Any filings required
to be made by the Company in accordance with Section 4(a) shall have
been timely filed with the Commission.
(b) None of the Placement Agents shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Registration
Statement, the Base Prospectus or the Prospectus Supplement or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Placement Agents, 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, execution, delivery and validity of each of this
Agreement, the Stock, the Registration Statement, the Base Prospectus
and the Prospectus Supplement and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Placement Agents, 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) Latham & Watkins LLP shall have furnished to the Placement Agent
such counsel's (i) written opinion, as counsel to the Company,
addressed to the Placement Agents and dated as of the Closing Date, in
substantially the form attached hereto as Exhibit C-1, and (ii) written
statement, as counsel to the Company, addressed to the Underwriters and
as of the Closing Date, in substantially the form attached hereto as
Exhibit C-2.
(e) Wilson Sonsini Goodrich & Rosati, a Professional Corporation, shall
have furnished to the Placement Agents such counsel's written opinion,
as special patent counsel to the Company, addressed to the Placement
Agents and dated as of the Closing Date, in substantially the form
attached hereto as Exhibit C-3.
(f) The Placement Agents shall have received from Brown Raysman
Millstein Felder & Steiner LLP, such opinion or opinions, dated the
Closing Date and addressed to the Placement Agents, with respect to the
issuance and sale of the Stock, the Registration
18
Statement, the Base Prospectus, the Prospectus Supplement (together
with any supplement thereto) and other related matters as the
Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Placement Agents and the
Purchasers a certificate, dated as of the Closing Date, executed by its
Chief Executive Officer and its Chief Financial Officer stating that
(i) such officers have carefully examined the Registration Statement,
the Base Prospectus and the Prospectus Supplement and, in their
opinion, the Registration Statement (including the Base Prospectus) as
of its effective date and the Prospectus Supplement, as of each such
effective date, did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) since
the effective date of the Registration Statement no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement, (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 covenants contained in
this Agreement and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date, (iv) subsequent
to the date of the most recent financial statements included or
incorporated by reference in the Base Prospectus and the Prospectus
Supplement, there has been no change in the financial position or
results of operation of the Company that could have a Material Adverse
Effect, or any material change, or any material development including a
prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the
Company, except as set forth in the Base Prospectus and the Prospectus
Supplement, and (v) the Registration Statement became effective on June
16, 2005, and to their knowledge, as of the Closing Date (I) no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been commenced or
are pending before or are contemplated by the Commission and (II) no
action has been taken by any governmental agency, body or official, and
no injunction, restraining order or order of any nature by any federal
or state court has been issued, which would prevent the issuance of the
Stock.
(h) At the Execution Time, the Placement Agents shall have received
from Ernst & Young LLP a letter, addressed to the Placement Agents and
dated such date, in form and substance reasonably satisfactory to the
Representative (i) confirming that they are independent 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 Base Prospectus and the Prospectus Supplement.
(i) On the Closing Date, the Representative shall have received a
letter (the "BRING-DOWN LETTER") from Ernst & Young LLP addressed to
the Placement Agents and dated the Closing Date confirming, as of the
date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
19
specified financial information is given in the Base Prospectus and the
Prospectus Supplement 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 Representative
concurrently with the execution of this Agreement pursuant to Section
6(h).
(j) The Company shall not have sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Base Prospectus and the Prospectus Supplement any loss or
interference with its business from fire, explosion, flood, terrorist
act or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth in or contemplated by the Base Prospectus
and the Prospectus Supplement, and (ii) except for the exercise of
options in the ordinary course of the Company's business, since such
date there shall not have been any change in the capital stock or
long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the business, general
affairs, management, financial position, stockholders' equity, results
of operations or prospects of the Company, otherwise than as set forth
in or contemplated by the Base Prospectus and the Prospectus
Supplement, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Stock on the terms and in the manner
contemplated by the Base Prospectus and the Prospectus Supplement.
(k) The Stock shall be registered under the Exchange Act and, as of the
Closing Date, the Stock shall be listed and admitted and authorized for
trading on the Nasdaq National Market, and satisfactory evidence of
such actions shall have been provided to the Representative. The
Company shall have taken no action designed to, or likely to have the
effect of terminating the registration of the Stock under the Exchange
Act or delisting or suspending from trading the Stock from Nasdaq, nor
has the Company received any information suggesting that the Commission
or Nasdaq is contemplating terminating such registration or listing.
(l) At the Execution Time, the Company shall have furnished to the
Representative a letter substantially in the form of Exhibit B hereto
from each executive officer and director of the Company.
(m) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the Nasdaq National Market 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 ranges 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
new hostilities in which it is not
20
currently engaged, or the subject of an act of terrorism, there shall
have been an escalation in existing 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 any other
calamity or crisis or any adverse change in general economic, political
or financial conditions in the United States or other country or
location which would materially affect the financial markets in the
United States, as to make it, in the sole judgment of the
Representative, impracticable or inadvisable to proceed with the sale
or delivery of the Stock on the terms and in the manner contemplated by
the Base Prospectus and the Prospectus Supplement.
(n) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Stock; 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.
(o) The Company shall have prepared and filed with the Commission a
Current Report on Form 8-K with respect to the Offering, including as
an exhibit thereto this Agreement and any other documents relating
thereto which may be required to be filed therewith.
(p) The Company shall have entered into Subscription Agreements with
each of the Purchasers and such agreements shall be in full force and
effect.
(q) Prior to the Closing Date, the Company shall have furnished to the
Placement Agents such further information, certificates and documents
as the Representative may reasonably request.
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 consistent with the
forms set forth as exhibits to this Agreement or, if no such form is provided,
in a form and substance reasonably satisfactory to counsel for the Placement
Agent.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Placement Agent,
its officers, employees, representatives and agents and each person, if
any, who controls any Placement Agent within the meaning of the
Securities Act (collectively the "PLACEMENT AGENT INDEMNIFIED PARTIES"
and each a "PLACEMENT AGENT INDEMNIFIED PARTY") against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which that Placement Agent Indemnified Party may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Base Prospectus, the Registration Statement or the
Prospectus Supplement or in any amendment or supplement thereto, (ii)
the omission or alleged
21
omission to state in the Base Prospectus, the Registration Statement or
the Prospectus Supplement or in any amendment or supplement thereto a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any act or failure to act,
or any alleged act or failure to act, by any Placement Agent in
connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (i) or (ii) above; (provided
that the Company shall not be liable in the case of any matter covered
by this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such act or
failure to act undertaken or omitted to be taken by such Placement
Agent through its gross negligence or willful misconduct) and shall
reimburse each Placement Agent Indemnified Party promptly upon demand
for any legal or other expenses reasonably incurred by that Placement
Agent Indemnified Party in connection with investigating or preparing
to defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action 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 action arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged
omission from the Base Prospectus, the Registration Statement or the
Prospectus Supplement or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Placement Agent through the
Representative specifically for use therein, which information the
parties hereto agree is limited to the Placement Agents' Information
(as defined in Section 15). This indemnity agreement is not exclusive
and will be in addition to any liability, which the Company might
otherwise have and shall not limit any rights or remedies which may
otherwise be available at law or in equity to each Placement Agent
Indemnified Party.
(b) Each Placement Agent, 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 or liability, 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 action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Base Prospectus, the Registration Statement or the
Prospectus Supplement 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 by or on behalf of that Placement
Agent through the Representative specifically for use therein, and
shall reimburse the Company Indemnified Parties for any legal or other
expenses reasonably incurred by such parties in connection
22
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 action as such expenses are incurred;
provided that the parties hereto hereby agree that such written
information provided by the Placement Agents consist solely of the
Placement Agents' Information. This indemnity agreement is not
exclusive and will be in addition to any liability, which the Placement
Agents and the Purchasers 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. Notwithstanding the provisions of
this Section 7(b), in no event shall any indemnity by any Placement
Agent under this Section 7(b) exceed the total compensation received by
such Placement Agent in accordance with Section 1(e).
(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 such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to the indemnifying party 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 in accordance with the terms hereof
and employ 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 in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such indemnified parties,
23
which firm shall be designated in writing by the Representative, if the
indemnified parties under this Section 7 consist of any Placement Agent
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, compromise or consent to the entry
of judgment in connection with 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 (other than a judgment entered with
the consent of such indemnified party), 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, 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
such request 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 or liability, 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 Placement Agents on the
other from the offering of the Stock or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Placement Agents on the other with
respect to the statements or omissions which resulted in such loss,
claim, damage or liability, 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 Placement Agents 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 bears to the total compensation received by the Placement
Agents with respect to the Stock purchased under this Agreement. 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 Placement
Agents 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
24
the Company by the Representative for use in the Prospectus Supplement
consists solely of the Placement Agents' Information. The Company and
the Placement Agents 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 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 or liability, or action in respect thereof, 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 Placement Agent shall be required to contribute any
amount in excess of the total compensation received by such Placement
Agent in accordance with Section 1(e), less the amount of any damages
which such Placement Agent 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 Placement Agents' obligations to contribute as provided in this
Section 7(e) are several in proportion to the total compensation
received by each of the Placement Agents in accordance with Section
1(e) and not joint.
8. TERMINATION. The obligations of the Placement Agents and the Purchasers
hereunder and under the Subscription Agreements may be terminated by the
Representative, in its absolute discretion by notice given to the Company prior
to delivery (including electronic delivery) of and payment for the Stock if,
prior to that time, any of the events described in Sections 6(i) or 6(l) have
occurred or if the Purchasers shall decline to purchase the Stock for any reason
permitted under this Agreement or the Subscription Agreements.
9. REIMBURSEMENT OF PLACEMENT AGENTS' EXPENSES. If the sale of the Stock
provided for herein is not consummated, because (a) any condition to the
obligations of the Placement Agents and the Purchasers set forth in Section 6
hereof is not satisfied, (b) of any termination pursuant to Section 8 hereof, or
(c) of any refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof, then the Company will
reimburse the Placement Agents upon demand for out-of-pocket expenses (including
the reasonable fees and disbursements of counsel and any reasonable expenses
advanced by the Placement Agents on the Company's behalf) that shall have been
incurred by the Placement Agents in connection with this Agreement and the
proposed purchase and sale of the Stock and, upon demand, the Company shall pay
the amount thereof to the Representative.
10. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Placement Agents, 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 for the sole and exclusive benefit of such persons and
for the benefit of no other person;
25
except that the representations, warranties, covenants, agreements and
indemnities of the Company contained in this Agreement shall also be for the
benefit of the Placement Agent Indemnified Parties, and the indemnities of the
Placement Agents shall also be for the benefit of the Company Indemnified
Parties. It is understood that the Placement Agents' responsibilities to the
Company are solely contractual in nature and the Placement Agents do not owe the
Company, or any other party, any fiduciary duty as a result of this Agreement.
11. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the Placement Agents, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Placement Agents, the Company, the Purchasers or any person controlling
any of them and shall survive delivery of and payment for the Stock.
12. NOTICES. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Placement Agents, 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: Veronica Iuliano
(Fax: 212-278-7995), with a copy to: Brown Raysman Millstein Felder &
Steiner LLP, 900 Third Avenue, New York, New York 10022, Attention:
Stuart Bressman, Esq. (Fax: 212-895-2900).
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to Santarus, Inc., 10590 West Ocean Drive, Suite
200, San Diego, CA 92130, Attention: Carey J. Fox, Esq., Vice
President, Legal Affairs (Fax: (848) 314-5702), with a copy to: Latham
& Watkins LLP, 12636 High Bluff Drive, Suite 300, San Diego, CA 92130,
Attention: Scott N. Wolfe, Esq. (Fax: (858) 523-5450).
13. DEFINITIONS OF CERTAIN TERMS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday, a legal holiday, a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City
or any day on which the Nasdaq National Market is not open for trading.
"EFFECTIVE DATE" shall mean each date and time that the
Registration Statement (and any post-effective amendment or amendments
thereto) became or becomes effective.
"EXECUTION TIME" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"TO THE COMPANY'S KNOWLEDGE" and words of similar import shall
mean that which the Company knows or should have known using the
exercise of reasonable due diligence.
26
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. PLACEMENT AGENT'S INFORMATION. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Placement Agent's Information
consists solely of the statements concerning the Placement Agent contained in
the third paragraph under the heading "Plan of Distribution" in the Prospectus
Supplement.
16. 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.
17. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Placement Agent.
18. 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.
19. CONSENT TO ACT AS REPRESENTATIVE. RBC Capital Markets Corporation ("RBC")
consents and agrees that SG Cowen & Co., LLC ("SG COWEN") will act as
Representative of the Placement Agents under this Agreement and with respect to
the sale of the Stock. Accordingly, RBC authorizes SG Cowen to manage the
Offering and the sale of the Stock and to take such action in connection
therewith as SG Cowen in its sole discretion deems appropriate or desirable,
consistent with the provisions of the Agreement Among Underwriters previously
entered into between SG Cowen and RBC, taking into account that the Offering of
the Stock will be in the form of a best efforts placement and not a firm
commitment underwriting.
27
If the foregoing is in accordance with your understanding of the
agreement between the Company and the Placement Agents, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
SANTARUS, INC.
By: /s/ Gerald T. Proehl
Name: Gerald T. Proehl
Title: President and
Chief Executive Officer
Accepted as of
the date first above written:
SG COWEN & CO., LLC
By: /s/ Richard E. Gormley
Name: Richard E. Gormley
Title: Managing Director
RBC CAPITAL MARKETS CORPORATION
By: /s/ Michael J. Rosso
Name: Michael J. Rosso
Title: Managing Director
28
SCHEDULE I
Placement Agents
SG COWEN & CO., LLC
RBC CAPITAL MARKETS CORPORATION
29
EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
30
EXHIBIT B
FORM OF LOCK-UP AGREEMENT
31
EXHIBIT C-1
LEGAL OPINION OF LATHAM & WATKINS LLP
32
EXHIBIT C-2
NEGATIVE ASSURANCES STATEMENT OF COUNSEL TO THE COMPANY
33
EXHIBIT C-3
LEGAL OPINION OF WILSON SONSINI GOODRICH & ROSATI
34