UNDERWRITING AGREEMENT Among GENTIUM, S.p.A., MAXIM GROUP LLC And I-BANKERS SECURITIES INCORPORATED Dated: June 16, 2005
Among
GENTIUM,
S.p.A.,
MAXIM
GROUP LLC
And
I-BANKERS
SECURITIES INCORPORATED
Dated:
June 16, 2005
GENTIUM,
S.p.A.
2,400,000
AMERICAN DEPOSITORY SHARES,
REPRESENTING
2,400,000 ORDINARY SHARES
June
16,
2005
Maxim
Group LLC
I-Bankers
Securities Incorporated
As
Representatives of the Several Underwriters
c/o
Maxim
Group LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned, Gentium, S.p.A., a Republic of Italy joint stock corporation (the
“Company”), hereby confirms its agreement with Maxim Group LLC (“Maxim”) and
I-Bankers Securities Incorporated (“IBS” and, together with Maxim, the
“Representatives”) as Representatives of the several underwriters named on
Schedule I to this Agreement (the “Underwriters”) as follows:
1. Purchase
and Sale of Shares.
1.1. Firm
ADSs.
1.1.1. Purchase
of Firm ADSs.
On the
basis of the representations and warranties herein contained, but subject to
the
terms and conditions herein set forth, the Company agrees to issue and sell
to
the Underwriters 2,400,000 American Depository Shares (the “Firm ADSs”), each
American Depository Share (“ADS”) representing one of the Company’s ordinary
shares (“Ordinary Shares”) at a purchase price (net of discounts and
commissions) of $8.325 per ADS. The sale of the Firm ADSs together with any
of
the Optional ADSs (as hereinafter defined) is sometimes hereinafter referred
to
as the “Offering” and the Firm ADSs and the Optional ADSs are collectively
referred to as the Offered Securities. The Underwriters, severally and not
jointly, agree to purchase from the Company the number of Firm ADSs set forth
opposite their respective names on Schedule I attached hereto and made a part
hereof at such purchase price.
The
Firm
ADSs and the Optional ADSs will be evidenced by American Depositary Receipts
("ADRs") to be issued pursuant to the Deposit Agreement dated as of June 15,
2005 (the "Deposit Agreement"), among the Company, The Bank of New York, as
depositary (the "Depositary"), and the holders and beneficial holders from
time
to time of the ADRs.
1.1.2. Delivery
and Payment.
Delivery and payment for the Firm ADSs shall be made at 10:00 a.m., New York
time, on or before the third business day following the date that the Firm
ADSs
commence trading or at such earlier time as the Representatives shall determine,
or at such other time as shall be agreed upon by the Representatives and the
Company, at the offices of counsel to the Representatives or at such other
place
as shall be agreed upon by the Representatives and the Company. The hour and
date of delivery and payment for the Firm ADSs are called the “Closing Date.”
The Firm ADSs to be purchased by the Underwriters hereunder and the ADRs
evidencing such Firm ADSs, in definitive form, and in such authorized
denominations and registered in such names as the Underwriters request shall
be
delivered by or on behalf of the Company to the Representatives on the Closing
Date through the facilities of DTC, for the accounts of the several Underwriters
or as such Underwriters may direct against payment of the purchase price
therefor in Federal (same day) funds by wire transfers to the account designated
by the Company at a bank acceptable to the Representatives on the Closing Date.
The ADRs representing the Firm ADSs will be made available for checking at
the
office of DTC or its designated custodian at least 24 hours prior to the Closing
Date.
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1.2. Over-Allotment
Option.
1.2.1. Optional
ADSs.
For the
purposes of covering any over-allotments in connection with the distribution
and
sale of the Firm ADSs, the Representatives are hereby granted an option to
purchase up to an additional 360,000 ADSs from the Company (“Over-allotment
Option”). Such additional 360,000 ADSs are hereinafter referred to as the
“Optional ADSs.” The purchase price to be paid for the Optional ADSs will be the
same price per Option Share as the price per Firm Share set forth in Section
1.1.1 hereof.
1.2.2. Exercise
of Option.
The
Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised
by the Representatives as to all or any part of the Optional ADSs at any time,
from time to time, within forty-five (45) days after the effective date
(“Effective Date”) of the Registration Statement (as hereinafter defined). The
Underwriters will not be under any obligation to purchase any Optional ADSs
prior to the exercise of the Over-allotment Option. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company
from
the Representatives, which must be confirmed within one (1) business day by
a
letter or telecopy setting forth the number of Optional ADSs to be purchased,
the date and time for delivery of and payment for the Optional ADSs and stating
that the Optional ADSs referred to therein are to be used for the purpose of
covering over-allotments in connection with the distribution and sale of the
Firm ADSs. If such notice is given at least two full business days prior to
the
Closing Date, the date set forth therein for such delivery and payment will
be
the Closing Date. If such notice is given thereafter, the date set forth therein
for such delivery and payment will not be earlier than three full business
days
after the date of the notice, unless the Representatives and the Company agree
upon an earlier date. If such delivery and payment for the Optional ADSs does
not occur on the Closing Date, the date and time of the closing for such
Optional ADSs will be as set forth in the notice (hereinafter the “Option
Closing Date”). Upon exercise of the Over-allotment Option, the Company will
become obligated to convey to the Underwriters, and, subject to the terms and
conditions set forth herein, the Underwriters will become obligated to purchase,
the number of Optional ADSs specified in such notice.
1.2.3. Payment
and Delivery.
The
Optional ADSs to be purchased by the Underwriters hereunder and the ADRs
evidencing such Optional ADSs, in definitive form, and in such authorized
denominations and registered in such names as the Underwriters request shall
be
delivered by or on behalf of the Company to the Representatives on each Optional
Closing Date through the facilities of DTC, for the accounts of the several
Underwriters or as such Underwriters may direct against payment of the purchase
price therefor in Federal (same day) funds by wire transfers to the account
designated by the Company at a bank acceptable to the Representatives on each
Optional Closing Date. The ADRs representing the Optional ADSs will be made
available for checking at the office of DTC or its designated custodian at
least
24 hours prior to each Optional Closing Date.
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1.3. Underwriters’
Purchase Option.
1.3.1. Purchase
Option.
The
Company hereby agrees to issue and sell to the Underwriters (and/or their
designees) on the Closing Date for an aggregate purchase price of $100, an
option (“Underwriters’ Purchase Option”) for the purchase of an aggregate of
151,200 Ordinary Shares (“Underwriters’ ADSs”) at an initial exercise price of
125% of the initial offering price of an ADS (i.e, $11.25 per ADS). The
Underwriters’ ADSs are identical to the Firm ADSs. The Underwriters’ Purchase
Option shall be exercisable for a period of four years commencing one year
from
the Effective Date. The Offered Securities and the Underwriters’ ADSs are
hereinafter referred to collectively as the “Shares.”
1.3.2. Payment
and Delivery.
Delivery and payment for the Underwriters’ Purchase Option shall be made on the
Closing Date. The Company shall deliver to the Representatives, upon payment
therefor, certificates for the Underwriters’ Purchase Option in the name or
names and in such authorized denominations as the Representatives may
request.
2. Representations
and Warranties of the Company.
The
Company represents and warrants to each Underwriter as of the date hereof,
as of
the Firm ADSs Closing Date and as of each Optional ADSs Closing Date (if any),
as follows:
2.1. Filing
of Registration Statement.
2.1.1. Pursuant
to the Securities Act.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form F-1 (No. 333-122233), and amendments thereto,
and related preliminary prospectuses for the registration under the Securities
Act of 1933, as amended, and together with the rules and regulations promulgated
thereunder (the “Securities Act”), of the Ordinary Shares and Underwriters ADSs,
which registration statement, as so amended (including post-effective
amendments, if any), has been declared effective by the Commission and copies
of
which have heretofore been delivered to the Underwriters. The registration
statement, as amended at the time it became effective, including the prospectus,
financial statements, schedules, exhibits and other information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A under the Securities Act, is hereinafter referred to as the
“Registration Statement.” If the Company has filed or is required pursuant to
the terms hereof to file a registration statement pursuant to Rule 462(b) under
the Securities Act registering additional Ordinary Shares and Underwriters
ADSs
(a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any
reference herein to the term “Registration Statement” shall be deemed to include
such Rule 462(b) Registration Statement and the term “Ordinary Shares” shall
include the additional Ordinary Shares underlying the additional Firm ADSs
and
underlying the Underwriter’s ADSs included therein. Other than a Rule 462(b)
Registration Statement, which, if filed, becomes effective upon filing, no
other
document with respect to the Registration Statement has heretofore been filed
with the Commission. All of the Ordinary Shares and Underwriters ADSs have
been
registered under the Securities Act pursuant to the Registration Statement
or,
if any Rule 462(b) Registration Statement is filed, will be duly registered
under the Securities Act with the filing of such Rule 462(b) Registration
Statement. Based on communications from the Commission, no stop order suspending
effectiveness of either the Registration Statement or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. The Company, if
required by the Securities Act, proposes to file the Prospectus with the
Commission pursuant to Rule 424(b) under the Securities Act (“Rule 424(b)”). The
prospectus, in the form in which it is to be filed with the Commission pursuant
to Rule 424(b), or, if the prospectus is not to be filed with the Commission
pursuant to Rule 424(b), the prospectus in the form included as part of the
Registration Statement at the time the Registration Statement became effective,
is hereinafter referred to as the “Prospectus,” except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by
the
Company for use in connection with the Offering which differs from the
Prospectus (whether or not such revised prospectus or prospectus supplement
is
required to be filed by the Company pursuant to Rule 424(b)), the term
“Prospectus” shall also refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided
to
the Underwriters for such use. Any preliminary prospectus or prospectus subject
to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424(a) under the Securities Act which in either
case
was printed by the Company and made available to the Representatives for use
in
connection with the Offering is hereafter called a “Preliminary Prospectus.” Any
reference herein to the Registration Statement shall be deemed to refer to
and
include the exhibits incorporated by reference therein pursuant to the
Securities Act on or before the effective date of the Registration Statement.
All references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing shall be deemed to include
any
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“▇▇▇▇▇”).
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2.1.2.
Pursuant
to the Exchange Act.
The
Company has filed with the Commission a registration statement on Form 8-A
providing for the registration of the Ordinary Shares and the Offered Securities
under the Exchange Act, which registration statement complies in all material
respects with the Exchange Act. Such registration statement has been declared
effective by the Commission on the date hereof.
2.1.3 A
registration statement on Form F-6 (No. 333-125663) relating to the ADSs has
been filed with the Commission (such registration statement, including all
exhibits thereto, as amended at the time such registration statement becomes
effective, being hereinafter called the "ADS Registration Statement"); the
ADS
Registration Statement, as of its effective date, complied or will comply,
and
each amendment or supplement thereto, when it is filed with the Commission
or
becomes effective, as the case may be, will comply, in all respects, with the
applicable requirements of the Act and the Rules and Regulations, and did not
or
will not, as of its effective date, include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
2.2 No
Stop Orders, Etc.
Neither
the Commission nor, to the Company’s knowledge, any state regulatory authority
has issued any order preventing or suspending the use of any Preliminary
Prospectus or has instituted or, to the Company’s knowledge, threatened to
institute any proceedings with respect to such an order.
2.3. Disclosures
in Registration Statement.
2.3.1. Securities
Act Representation.
At the
time the Registration Statement became effective and at all times subsequent
thereto up to and including the Closing Date and the Option Closing Date, if
any, the Registration Statement, and at the time the Prospectus was filed,
the
Prospectus, contained, and any amendment or supplement thereto contained and
will contain as of the applicable effective or filing date, as the case may
be,
all material statements that are required to be stated therein in accordance
with the Securities Act, and conformed and will conform in all material respects
to the requirements of the Securities Act; neither the Registration Statement
nor any amendment or supplement thereto, on such effective dates, contained
or
will contain any untrue statement of a material fact or omitted or will omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein not misleading. When any Preliminary Prospectus was first
filed with the Commission (whether filed as part of the Registration Statement
or any amendment thereto or pursuant to Rule 424(a) of the Securities Act),
when
the Prospectus was filed with the Commission pursuant to Rule 424(b), and when
any amendment thereof or supplement thereto was first filed with the Commission,
such Preliminary Prospectus, Prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Securities Act and did not contain any untrue statement of
a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under
which they were made, not misleading. The representations and warranties made
in
this Section 2.3.1 do not apply to statements made or statements omitted in
reliance upon and in conformity with written information furnished to the
Company with respect to the Underwriters by the Representatives expressly for
use in the Registration Statement or Prospectus or any amendment thereof or
supplement thereto.
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2.3.2. Disclosure
of Contracts.
The
description in the Registration Statement and the Prospectus of contracts and
other documents is accurate in all material respects and presents fairly the
information required to be disclosed and there are no contracts or other
documents required to be described in the Registration Statement or the
Prospectus or to be filed with the Commission as exhibits to the Registration
Statement that have not been so described or filed. Each contract or other
instrument (however characterized or described) to which the Company is a party
or by which its property or business is or may be bound or affected and that
is
(i) referred to in the Prospectus, or (ii) material to the Company’s business,
has been duly and validly executed, is in full force and effect in all material
respects in accordance with its terms and is enforceable against the Company
and, to the Company’s knowledge, the other parties thereto in accordance with
its terms, and none of such contracts or instruments has been assigned by the
Company, and neither the Company nor, to the Company’s knowledge, any other
party is in default thereunder and, to the Company’s knowledge, no event has
occurred that, with the lapse of time or the giving of notice, or both, would
constitute a default thereunder except those events which individually or in
the
aggregate would have an Material Adverse Effect. None of the material provisions
of such contracts or instruments violates or will result in a violation of
any
existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court having jurisdiction over the Company or any of
its
assets or businesses, including, without limitation, those relating to
environmental laws and regulations.
2.3.3. Prior
Securities Transactions.
No
securities of the Company have been sold by the Company or by or on behalf
of,
or for the benefit of, any person or persons controlling, controlled by, or
under common control with the Company within the three years prior to the date
hereof, except as disclosed in the Registration Statement.
2.4. No
Material Adverse Change.
Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise specifically stated therein,
(i) there has been no material adverse change in the condition, financial or
otherwise, or in the results of operations, business or business prospects
of
the Company, including, but not limited to, a material loss or interference
with
its business from fire, storm, explosion, flood or other casualty, whether
or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, whether or not arising in the ordinary course of
business; (ii) the Company has not (A) issued any securities or incurred
any liability or obligation, direct or contingent, for borrowed money, except
such liabilities or obligations incurred in the ordinary course of business,
(B) entered into any transaction not in the ordinary course of business or
(C) declared or paid any dividend or made any distribution on any shares of
its stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its capital stock other than as
described in the Registration Statement and Prospectus.
2.5. Financial
Statements.
The
financial statements of the Company (including all notes and schedules thereto)
included or incorporated by reference in the Registration Statement and
Prospectus present fairly the financial position of the Company at the dates
indicated and the statements of operations, stockholders’ equity (deficit) and
cash flows of the Company for the periods specified; and such financial
statements and related schedules and notes thereto, have been prepared in
conformity with generally accepted accounting principles in the United States,
consistently applied throughout the periods involved.
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2.6. Off-Balance
Sheet Transactions.
There
are no material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), or any other relationships with
unconsolidated entities or other persons, that may have a material current
or,
to the Company’s knowledge, a material future effect on the Company’s financial
condition, changes in financial condition, results of operations, liquidity,
capital expenditures, capital resources, or significant components of revenues
or expenses.
2.7. Due
Incorporation.
The
Company has been duly established and is validly existing as a joint stock
company (società
per azionì)
in good
standing under the laws of the Republic of Italy with registered office at
Comune di ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, Fiscal Code and number of
registration in the Companies Register of Como No. 02098100130, with a fully
paid corporate capital of Euro 5,000,000. The Company is duly qualified to
do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted by it or location of the assets
or
properties owned, leased or licensed by it requires such qualification, except
for such jurisdictions where the failure to so qualify individually or in the
aggregate would not have a material adverse effect on the assets, properties,
condition, financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company (a “Material Adverse Effect”); and
to the Company’s knowledge, no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or
curtail, such power and authority or qualification. The Company does not own
an
interest in any corporation, partnership, joint venture, limited liability
company, trust or other business entity.
2.8. Authorized
Capital; Options; Etc.
The
Company had, at the date or dates indicated in the Prospectus, duly authorized,
issued and outstanding capitalization as set forth in the Registration Statement
and the Prospectus. Based on the assumptions and adjustments stated in the
Registration Statement and the Prospectus, the Company will have on the Closing
Date the adjusted stock capitalization set forth therein. Except
as
set forth in the Registration Statement and the Prospectus, on the Effective
Date and on the Closing Date there will be no outstanding or authorized
subscriptions, options, warrants or other rights to purchase or otherwise
acquire, or preemptive rights with respect to the issuance or sale of any
Ordinary Shares of the Company, including any obligations to issue any shares
pursuant to anti-dilution provisions, or any security convertible into Ordinary
Shares of the Company, or any contracts or commitments to issue or sell Ordinary
Shares or any such options, warrants, rights or convertible
securities.
2.9 Valid
Issuance of Securities; Etc.
2.9.1. Outstanding
Securities.
All
issued and outstanding securities of the Company have been duly authorized
and
validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission with respect thereto, and are not subject to personal
liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any holders of any security
of
the Company or similar contractual rights granted by the Company. The
outstanding options and warrants to purchase Ordinary Shares constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms. The authorized Ordinary Shares and outstanding options and warrants
to
purchase Ordinary Shares conform to all statements relating thereto contained
in
the Registration Statement and the Prospectus. The offers and sales by the
Company of the outstanding Ordinary Shares, options and warrants to purchase
Ordinary Shares, and securities convertible into Ordinary Shares, were at all
relevant times registered under the Securities Act and registered or qualified
under the applicable state securities or Blue Sky laws or exempt from such
registration or qualification requirements in each jurisdiction in which offers
and sales were made.
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2.9.2. Securities
Sold Pursuant to this Agreement.
The
Shares have been duly authorized and, when issued and paid for pursuant to
this
Agreement, will be validly issued, fully paid and non-assessable; the holders
thereof have no rights of rescission with respect thereto, and are not subject
to personal liability by reason of being such holders; the Shares are not and
will not be subject to the preemptive rights of any holders of any security
of
the Company or similar contractual rights granted by the Company; and all
corporate action required to be taken for the authorization, issuance and sale
of the Shares has been duly and validly taken. The Shares conform in all
material respects to all statements in relation thereto contained in the
Registration Statement and the Prospectus. When issued, the Underwriters’
Purchase Option will constitute a valid and binding obligation of the Company
to
issue and sell, upon exercise thereof and payment therefor, the number and
type
of securities of the Company called for thereby and will be enforceable against
the Company in accordance with its terms, except (i) as such enforceability
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (ii) as enforceability of any indemnification or
contribution provision may be limited under the United States federal and state
securities laws (“U.S. Laws”) or Italian laws, and (iii) that the remedy of
specific performance and injunctive and other forms of equitable relief may
be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
2.10. Performance
of Agreements; Consents.
2.10.1 Underwriting
Agreement.
This
Agreement has been duly authorized, executed and delivered by the Company.
The
execution, delivery and performance by the Company of this Agreement does not
violate its Articles of Association (i.e.,
atto costitutivo),
its
By-laws (i.e.,
statuto)
or any
law, rule, regulation, judgment, decree or order of any court applicable to
it.
No consents or approvals and no licenses or orders from, or any registration
or
filings with, any Republic of Italy court, government department or other
regulatory body (with the exception of all filing requirements with the
Companies Register of Como which, to our knowledge, have been fully complied
with other than filings which are required to and will be made post-closing
in
connection with the transactions contemplated herein) are required for the
due
authorization, execution, delivery or performance by the Company of this
Agreement or the consummation of the transactions contemplated by this
Agreement, the Underwriters’ Purchase Option and Prospectus, except such as have
been obtained under the Securities Act and such as may be required by the NASD
and under state securities, Blue Sky or foreign laws in connection with the
purchase and distribution of the Shares by the several
Underwriters.
2.10.2 Deposit
Agreement.
The
Deposit Agreement has been duly authorized, and when executed and delivered
by
the Company, and, assuming due authorization, execution and delivery by the
Depositary, will constitute a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles and (B) the effect of judicial application
of
foreign laws or foreign government actions affecting creditors' rights; upon
due
issuance by the Depositary of the ADRs evidencing the Offered Securities against
the deposit of the underlying Shares in respect thereof in accordance with
the
provisions of the Deposit Agreement, such ADRs will be duly and validly issued
and the persons in whose names the ADRs are registered will be entitled to
the
rights specified therein and in the Deposit Agreement; and the Deposit Agreement
and the ADRs conform in all material respects to the descriptions thereof
contained in the Prospectus.
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2.11. Registration
Rights of Third Parties.
Except
as disclosed in the Prospectus, no holder of any security of the Company has
any
right, which has not been waived, to have any security owned by such holder
included in the Registration Statement or to demand registration of any security
owned by such holder for a period of 180 days after the date of this
Agreement.
2.12. No
Conflicts, Etc.
Except
as disclosed in the Prospectus and the Registration Statement, neither the
execution, delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the Shares) will give rise
to a right to terminate or accelerate the due date of any payment due under,
or
result in the breach of any term or provision of, or constitute a default (or
an
event which with notice or lapse of time or both would constitute a default)
in
any material respect under, or require any consent or waiver under, or result
in
the execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or its subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust or other agreement or instrument
to
which the Company is a party or by which the Company is bound, except for such
consents or waivers which have already been obtained and are in full force
and
effect.
2.13. No
Violations.
Except
as described in the Prospectus, the Company is not in violation of any term
or
provision of its Articles of Association or By-Laws or in violation of any
material franchise, license, permit, applicable law, rule, regulation, judgment
or decree of any governmental agency or court, domestic or foreign, applicable
to it.
2.14. Corporate
Power; Licenses; Consents.
2.14.1. Conduct
of Business.
The
Company has all requisite corporate power and authority, and has all necessary
and material authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies to own
or
lease its properties and conduct its business as described in the Prospectus,
and the Company is and has been doing business in substantial compliance with
all such material authorizations, approvals, orders, licenses, certificates
and
permits except that applications for a change of name are pending with respect
to certain permits and all European Union (“EU”), Italian national and local
laws, rules and regulations applicable to the Company except as would not have
a
Material Adverse Effect. The disclosures in the Registration Statement and
Prospectus concerning the effects of U.S. Laws, EU, Italian national and local
regulations on the Company’s business as currently contemplated are correct in
all material respects and do not omit to state a material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading.
2.14.2. Transactions
Contemplated Herein.
The
Company has all corporate power and authority to enter into this Agreement
and
to carry out the provisions and conditions hereof.
2.15. Title
to Property.
Except
as otherwise described in the Prospectus, the Company has good title to all
real
property, and good title to all other property owned by it, in each case free
and clear of all liens, encumbrances, claims, security interests and defects,
except such as do not materially affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property
by the Company. Except as otherwise described in the Prospectus, all property
held under lease by the Company is held by it under valid, existing and
enforceable leases, free and clear of
all
liens, encumbrances, claims, security interests and defects, except such as
are
not material and do not materially interfere with the use made or proposed
to be
made of such property by the Company.
8
2.16. Litigation;
Governmental Proceedings.
Except
as set forth in the Prospectus, there is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental proceeding pending or,
to
the Company’s knowledge, threatened against, or involving the properties or
business of, the Company that might, if determined adversely to the Company,
result in a Material Adverse Effect, or that questions the validity of the
capital stock of the Company or this Agreement or of any action taken or to
be
taken by the Company pursuant to, or in connection with, this Agreement. There
are no outstanding orders, judgments or decrees of any court, governmental
agency or other tribunal, domestic or foreign, naming the Company and enjoining
the Company from taking, or requiring the Company to take, any action, or to
which the Company, its properties or business is bound or subject.
2.17. Taxes.
The
Company has filed all returns (as hereinafter defined) required to be filed
with
taxing authorities prior to the date hereof or has duly obtained extensions
of
time for the filing thereof. The Company has paid all taxes (as hereinafter
defined) shown as due on such returns that were filed and has paid all taxes
assessed against the Company. The provisions for taxes payable, if any, shown
on
the financial statements filed with or as part of the Registration Statement
are
sufficient for all accrued and unpaid taxes, whether or not disputed, for all
periods to and including the dates of such consolidated financial statements.
Except as disclosed in writing to the Representatives, (i) no claims for
assessment or collection of taxes have been asserted against the Company, and
(ii) no waivers of statutes of limitation with respect to the returns or
collection of taxes have been given by or requested from the Company. The term
“taxes” mean all net income, gross income, gross receipts, sales, use, ad
valorem, transfer, franchise, profits, license, lease, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall
profits, customs, duties or other taxes, fees, assessments, or charges of any
kind whatever imposed by the U.S., the EU, Italy or any Italian subdivision
or
local authority, together with any interest and any penalties, additions to
tax,
or additional amounts with respect thereto. The term “returns” means all
returns, declarations, reports, statements, and other documents required to
be
filed in respect to taxes. To the Company’s knowledge, there are no tax audits
or investigations pending, which if adversely determined would have a Material
Adverse Effect; nor, to the Company’s knowledge, are there any material proposed
additional tax assessments against the Company.
2.18. Conduct
re Sale of Shares.
The
Company has not taken, nor will it take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in, or
which has constituted, or which might reasonably be expected to constitute,
the
stabilization or manipulation of the price of the Shares or any security of
the
Company to facilitate the sale or resale of any of the Shares.
2.20. Transactions
Affecting Disclosure to NASD.
2.20.1. Finder’s
Fees.
Except
as described in the Prospectus and this Underwriting Agreement, there are no
claims, payments, issuances, arrangements or understandings for services in
the
nature of a finder’s, consulting or origination fee with respect to the
introduction of the Company to the Underwriters or the sale of the Shares
hereunder or any other arrangements, agreements, understandings, payments or
issuances with respect to the Company that may affect the Underwriters’
compensation, as determined by the NASD, except any arrangements that the
Underwriters may have made with the Company or others.
2.20.2. Payments
Within Twelve Months.
Except
as disclosed in the Prospectus, other than payments to the Representatives,
the
Company has not made any direct or indirect payments (in cash, securities or
otherwise) to any person, whether an NASD member, or person or entity that
has
any direct or indirect affiliation or association with any NASD member, as
a
finder’s fee, investing fee or otherwise, in consideration of such person
raising capital for the Company or introducing to the Company persons who
provided capital to the Company within the 12-month period prior to the date
on
which the Registration Statement was filed with the Commission (“Filing Date”)
or thereafter.
9
2.20.3. Insiders’
NASD Affiliation.
To the
Company’s knowledge, no (i) officer or director of the Company or (ii)
beneficial owner of 5% or more of the Company’s ordinary shares, has any direct
or indirect affiliation or association with any NASD member except those persons
previously identified to the Representatives as such. The Company will advise
the Representatives and the NASD if any officer, director or stockholder of
the
Company is or becomes an affiliate or associated person of an NASD member
participating in the Offering.
2.20.4. Distribution
of Offering Materials.
Each of
the Company, its directors and officers has not distributed and will not
distribute prior to the later of (i) the Firm ADSs Closing Date or the Optional
ADSs Closing Date, and (ii) completion of the distribution of the Shares, any
offering material in connection with the offering and sale of the Shares other
than any Preliminary Prospectus, the Prospectus, the Registration Statement
and
other materials, if any, permitted by the Securities Act.
2.21. Compliance
with Certain Laws re Foreign Operations.
2.21.1. Foreign
Corrupt Practices Act.
Neither
the Company, nor, to the Company’s knowledge, any person acting on behalf of the
Company or associated with the Company, including, without limitation, any
director, officer, agent or employee of the Company, has not, directly or
indirectly, while acting on behalf of the Company (i) used any corporate
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or
(iv) made any other unlawful payment.
2.21.2. Currency
and Foreign Transactions.
The
operations of the Company are and have been conducted at all times in material
compliance with financial recordkeeping and reporting requirements applicable
to
it. No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator
involving the Company with respect to the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency is pending, or to the best knowledge of the Company,
threatened.
2.21.3. Foreign
Assets Control.
Neither
the Company nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not knowingly, directly or indirectly,
use the proceeds of the Offering, or lend, contribute or otherwise make
available such proceeds to any affiliate, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by the OFAC.
2.22. American
Stock Exchange Eligibility.
The
Shares have been duly authorized for listing on the American Stock Exchange
(“AMEX”), subject to official Notice of Issuance.
2.22.1. Continued
Exchange Act and AMEX Registration.
The
Company has taken no action designed to, or, to its knowledge, likely to have
the effect of, terminating the registration of the Shares under the Exchange
Act
or listing on the AMEX, nor has the Company received any notification that
the
Commission or the AMEX is contemplating terminating such registration or
listing.
10
2.23. Intangibles.
The
Company owns or possesses legally enforceable rights to use all patents, patent
rights and applications, inventions, trademarks, trademark applications, trade
names, service marks, service names, copyrights, copyright applications,
licenses, know-how and other similar rights and proprietary knowledge
(collectively, “Intangibles”) necessary for the conduct of its business as
currently conducted and described in the Prospectus and are accurately described
as being licensed to or owned by it in the Registration Statement and
Prospectus. The Company’s Intangibles that have been registered in the United
States Patent and Trademark Office and otherwise as disclosed in the
Registration Statement and Prospectus, have been fully maintained and are in
full force and effect. Except as described in the Prospectus, there is no claim
or action by any person pertaining to, or proceeding pending or, to the
Company’s knowledge, threatened relating to, and the Company has not received
any notice of conflict with the asserted rights of others, that challenges
the
right of the Company with respect to, any Intangibles used in the conduct of
the
Company’s business. To the Company’s knowledge, the Company has not infringed on
and is not infringing on the Intangibles of others. To the Company’s knowledge,
no others have infringed upon the Intangibles of the Company.
2.24. Relations
With Employees.
The
Company has generally enjoyed a satisfactory employer-employee relationship
with
its employees and is in compliance in all material respects with all collective
and individual contracts with or involving its employees and with all EU laws
applicable to Italian companies and Italian national, and local laws and
regulations respecting the employment of its employees and employment practices,
terms and conditions of employment and wages and hours relating thereto and,
to
the knowledge of the Company, there is no dispute with any employee existing
or
threatened, which dispute would have a Material Adverse Effect. There are no
pending investigations involving the Company, its employees or any collective
bargaining organization by any other governmental agency responsible for the
enforcement of EU, Italian national, and local laws and regulations or
collective bargaining agreements. There is no unfair labor practice charge
or
complaint against the Company or any officer of the Company, pending before
any
regulatory authority, or any strike, picketing, boycott, dispute, slowdown
or
stoppage pending or threatened against or involving the Company or any officer
of the Company, or any predecessor entity, and none has ever occurred. No
question concerning representation exists respecting the employees of the
Company and no collective bargaining agreement or modification thereof is
currently being negotiated by the Company. No grievance or arbitration
proceeding is pending under any expired or existing collective bargaining
agreements of the Company, if any.
2.25. Officers’
Certificate.
Any
certificate signed by any duly authorized officer of the Company and delivered
to the Underwriters or to their counsel in connection with this Offering shall
be deemed a representation and warranty by the Company to the Underwriters
as to
the matters covered thereby.
2.26 No
Integration.
Neither
the Company nor any of its affiliates has, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Securities Act with the offer and sale of the Shares pursuant to the
Registration Statement. Except as disclosed in the Registration Statement,
the
Prospectus or in any public filings relating to the Company filed with the
Commission, neither Company nor any of its affiliates has sold or issued any
ordinary shares, options and warrants to purchase ordinary shares, or securities
convertible into ordinary shares during the six-month period preceding the
date
of the Prospectus, including but not limited to any sales pursuant to Rule
144A
or Regulation D or S under the Securities Act, other than ordinary shares issued
pursuant to employee benefit plans, qualified stock option plans or employee
compensation plans or pursuant to outstanding options, rights or warrants as
described in the Registration Statement and the Prospectus.
11
2.27. Insurance.
The
Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are customary in Italy in the
businesses in which it is engaged or proposes to engage after giving effect
to
the transactions described in the Prospectus; all policies of insurance and
fidelity or surety bonds insuring the Company or the Company’s businesses,
assets, employees, officers and directors are in full force and effect; the
Company is in compliance with the terms of such policies and instruments in
all
material respects; and the Company has no reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business in Italy. The Company has not been denied any insurance
coverage which it has sought or for which it has applied.
2.28 Environmental
Matters.
Except
as disclosed in the Prospectus, the Company is in substantial compliance in
all
material respects with all rules, laws and regulations relating to the use,
treatment, storage and disposal of toxic and/or hazardous substances and
protection of health (but not including rules, laws and regulations addressed
by
Section 2.34 of this Agreement) or the environment (“Environmental Laws”) which
are applicable to its business; (ii) the Company has not received any notice
from any governmental authority or third party of an asserted claim under
Environmental Laws; (iii) the Company has received all material permits,
licenses or other approvals required of it under applicable Environmental Laws
to conduct its business and is in compliance with all terms and conditions
of
any such permit, license or approval except that applications for a change
of
name are pending with respect to certain permits; (iv) to the Company’s
knowledge, no facts currently exist that will require the Company to make future
material capital expenditures to comply with existing Environmental Laws (laws
which could be subject to future change); and (v) no property which is or has
been owned, leased or occupied by the Company has been designated or identified
by any government, regulatory agency, organization or investigation as a site
reasonably suggested to contain the presence of contaminants, chemicals,
pollutants or other substances that would give rise to a material obligation
or
liability by the Company for the clean-up or remediation of any property, on
site or off site or any facility otherwise designated as a contaminated site
under applicable law.
2.28.1. Effect
on Business.
In
connection with its upgrade to its manufacturing facility in 2004, the Company
reviewed the effect of Environmental Laws on the business, operations and
properties of the Company, in the course of which the Company identified and
evaluated associated costs and liabilities (including, without limitation,
any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or approval,
any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in
the
aggregate,
have a
Material Adverse Effect.
2.29. Product
Liability Insurance.
To its
knowledge, the Company maintains product liability insurance of the type and
in
the amounts typically maintained by similar companies in Italy operating in
the
industry in which the Company operates.
2.30. Conversion
and Repayment of Bridge Notes.
As of
the date hereof, the Company has received notice from holders of its Series
A
Senior Convertible Promissory Notes (“Bridge Notes”) that (i) holders of the
aggregate principal amount of Bridge Notes of $2,912,000 intend to convert
their
Bridge Notes into Ordinary Shares at $8.10 per share and accrued interest
thereon will be repaid in cash and (ii) holders of Bridge Notes in the aggregate
principal amount of not more than $5,098,000 plus accrued interest intend to
be
repaid in cash.
2.31. Relationships
with Insiders.
No
transaction has occurred between the Company, on the one hand, and any director,
officer, shareholder, customer or supplier of the Company or any affiliate
of
the Company, on the other hand, which is required by the Securities Act to
be
described in the Prospectus which is not so described and described as required.
There are no outstanding loans, advances (except normal advances for business
expenses 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 or any of their respective family members, except as disclosed in the
Registration Statement and the Prospectus. The Company has not, in violation
of
the Sarb-Ox, directly or indirectly, including through a subsidiary or affiliate
(other than as permitted under the Sarb-Ox for depositary institutions),
extended or maintained credit, arranged for the extension of credit, or renewed
an extension of credit, in the form of a personal loan to or for any director
or
executive
officer of the Company.
12
2.32. Compliance
with Sarb-Ox.
The
Company is in material compliance with the provisions of Sarb-Ox and the rules
and regulations promulgated thereunder and related or similar rules and
regulations promulgated by AMEX or any other governmental or self regulatory
entity or agency, to the extent applicable to the Company, except for such
violations which, singly or in the aggregate, would not have a Material Adverse
Effect. Without limiting the generality of the foregoing: (i) all members of
the
Company’s board of directors who are required to be “independent” (as that term
is defined under applicable laws, rules and regulations), including, without
limitation, all members of the audit committee of the Company’s board of
directors, meet the qualifications of independence as set forth under applicable
laws, rules and regulations and (ii) the audit committee of the Company’s board
of directors has at least one member who is an “audit committee financial
expert” (as that term is defined under applicable laws, rules and
regulations).
2.32.1. Internal
Controls.
The
books, records and accounts of the Company accurately and fairly reflect, in
reasonable detail, the transactions in, and dispositions of, the assets of,
and
the results of operations of, the Company. Other than as described in the
Prospectus, the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles and
to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorizations. The Company is
actively taking steps to comply with the provisions of the Sarb-Ox that are
applicable to the Company.
2.32.2. Audit
Committee; Amex Compliance.
Except
as described in the Prospectus, the Company’s board of directors has validly
appointed an audit committee whose composition satisfies the requirements of
Section 121B(2) of the AMEX Company Guide. The Company’s board of directors
and/or the audit committee has adopted a charter that satisfies the requirements
of Section 121B(1) of the AMEX Company Guide. Neither the Company’s board of
directors nor the audit committee has been informed, nor is any director of
the
Company aware, of (i) except as described in the Prospectus, any significant
deficiencies in the design or operation of the Company’s internal controls which
could adversely affect the Company’s ability to record, process, summarize and
report financial data or any material weakness in the Company’s internal
controls; or (ii) any fraud, whether or not material, that involves management
or other employees of the Company who have a significant role in the Company’s
internal controls.
2.33. Investment
Company Act Compliance.
The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of proceeds thereof as described in the Prospectus, will
not
be an “investment company” within the meaning of the Investment Company Act of
1940, as amended.
13
2.34. Compliance
with Statutes, Rules & Regulations.
Except
as disclosed in the Prospectus, the Company has materially complied with, is
not
in material violation of, and has not received any written notices of violation
from a Governmental Authority with respect to, any foreign, U.S. Laws, EU,
Italian national or local statute, law or regulation applicable to it, including
without limitation all statutes, rules, or regulations relating to the
ownership, testing, development, manufacture, packaging, processing,
use, distribution, marketing, labeling, promotion, sale, offer for sale,
storage, import, export or disposal of any product or product candidate
manufactured or distributed by the Company (“Applicable Laws”), or any license,
certificate, approval, clearance, authorization, permit, supplement or amendment
required by any Applicable Laws (“Authorizations”). The Company possesses all
material Authorizations necessary for its existing products and such material
Authorizations are in full force and effect. Except as disclosed in the
Prospectus, the Company is, and its existing products are, in compliance in
all
material respects with all existing Authorizations and Applicable Laws,
including, but not limited to, all laws, statutes, rules, regulations, or orders
administered, issued or enforced by the Federal Food and Drug Administration
(the “FDA”) or any other federal or foreign governmental authority having
authority over the Company or any of its products (“Governmental Authority”).
Except as disclosed in the Prospectus, the Company has not received from the
FDA
or any other Governmental Authority any notice of adverse findings, regulatory
letters, notices of violations, Warning Letters, criminal proceeding notices
under Section 305 of the Federal Food, Drug, and Cosmetic Act, or other
similar communication from the FDA or other Governmental Authority alleging
or
asserting material noncompliance with Applicable Laws or any Authorizations,
and
there have been no seizures conducted or threatened by the FDA or other
Governmental Authority, and no recalls, market withdrawals, field notifications,
notifications of misbranding or adulteration, safety alerts or similar actions
relating to the safety or efficacy of the Company’s products conducted,
requested or threatened by the FDA or other Governmental Authority relating
to
the products sold by the Company. Except as disclosed in the Prospectus, the
Company has not, either voluntarily or involuntarily, initiated, conducted,
or
issued or caused to be initiated, conducted or issued, any recall, market
withdrawal, safety alert, “dear doctor” letter, or other similar notice or
action relating to the alleged lack of safety or efficacy of any of the
Company’s products or any alleged product defect or violation, and the Company
has no knowledge that any Governmental Authority has initiated, conducted or
intends to initiate any such notice or action. The Company has not received
notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other similar action from any Governmental
Authority alleging that any product operation or activity is in material
violation of any Applicable Laws or Authorizations and has no knowledge that
any
such Governmental Authority is considering any such claim, litigation,
arbitration, action, suit, investigation or proceeding. Each regulatory
submission by the Company for the Company’s existing products has been filed,
cleared and maintained in compliance in all material respects with all
Applicable Laws and Authorizations, including without limitation applicable
federal statutes, rules, regulations or orders administered or promulgated
by
the FDA or other Governmental Authority, and all laboratory and clinical
studies, and tests that the Company has conducted and is conducting to
demonstrate the safety and efficacy of its products are in all material respects
in compliance with accepted professional scientific standards and all Applicable
Laws and Authorizations in all material respects. No filing or submission by
the
Company to the FDA or any other Governmental Authority, intended to be the
basis
for any Authorization, contains any material omission or material false
information or presents data and results from the studies in any manner other
than fair, accurate, and complete presentation. The Company is not aware,
directly or indirectly of any other studies, tests, trials, presentations,
publications or other information that could reasonably call into question
the
validity, completeness, or accuracy of any study, test, trial, results or data
relating to the Company’s products or product candidates. Except as described in
the Prospectus, the Company has not nor to its knowledge has any sponsor
received any notices or correspondence from any Governmental Authority
(including, but not limited to, the FDA) requiring suspension of any studies,
tests, or clinical trials conducted by or on behalf of the Company. Except
as
disclosed in the Prospectus, the Company is not aware of any facts which are
reasonably likely to cause (A) the nonapproval
or non-clearance, withdrawal, or recall of any products sold by the Company,
or
(B) a suspension or revocation of any of the Company’s Authorizations. The
Company has not received notice (whether complete or pending) of any proceeding
seeking recall, suspension or seizure of any products or product candidates
provided to sponsors of or used in clinical studies, sold or proposed to be
sold
by the Company.
14
2.35. Translations
Provided by the Company.
The
Company reasonably believes that all translations of each agreement, document
or
other writing provided by the Company for use of the Underwriters or their
representatives or for use as exhibits to the Registration Statement (i) have
been provided by parties who are reliable in their capacity to fairly and
accurately translate such documents, and (ii) fairly and accurately represent
the provisions of the original versions of the documents which they represent.
To the extent such translations were provided by others, nothing has come to
attention of officers of the Company familiar with such documents that causes
them to believe the translations provided are inaccurate in any material
respect.
2.36. Compliance
with Deposit Agreement.
The
Company agrees to comply in all material respects with the Deposit Agreement
so
that ADRs evidencing ADSs to be delivered to the Underwriters at each Closing
Date are executed by the Depositary (and, if applicable,
counter-signed).
3. Covenants
of the Company.
The
Company covenants and agrees as follows:
3.1. Amendments
to Registration Statement.
The
Company will deliver to the Representatives, prior to filing, any amendment
or
supplement to the Registration Statement or Prospectus proposed to be filed
after the Effective Date and not file any such amendment or supplement to which
the Representatives shall reasonably object.
3.2. Federal
Securities Laws.
3.2.1. Compliance.
During
the time when a Prospectus is required to be delivered under the Securities
Act,
the Company will use all reasonable efforts to comply with all requirements
imposed upon it by the Securities Act and the Exchange Act, as from time to
time
in force, so far as necessary to permit the continuance of sales of or dealings
in the Offered Securities in accordance with the provisions hereof, and the
Prospectus. If at any time when a Prospectus relating to the Offered Securities
is required to be delivered under the Securities Act, any event shall have
occurred as a result of which, in the reasonable opinion of counsel for the
Company or counsel for the Underwriters, the Prospectus, as then amended or
supplemented, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Securities Act, the Company will notify the Representatives
promptly and prepare and file with the Commission, subject to Section 3.1
hereof, an appropriate amendment or supplement in accordance with Section 10
of
the Securities Act.
3.2.2. Filing
of Final Prospectus.
If Rule
430A is used or the filing of the Prospectus is otherwise required under Rule
424(b), the Company will file the Prospectus (in form and substance satisfactory
to the Representatives) with the Commission pursuant to the requirements of
Rule
424(b) under the Securities Act within the prescribed time period and will
provide evidence satisfactory to the Representatives of such timely
filing.
3.2.3. Exchange
Act Registration.
For a
period of three years from the Effective Date, the Company will, unless the
Representatives agree otherwise, use its best efforts to maintain the
registration of the Shares under the provisions of Section 12 of the Exchange
Act.
15
3.3. Blue
Sky Filings.
The
Company will endeavor in good faith, in cooperation with the Representatives,
at
or prior to the time the Registration Statement becomes effective, to qualify
the Offered Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may reasonably designate, provided that
no
such qualification shall be required in any jurisdiction where, as a result
thereof, the Company would be subject to service of general process or to
qualification or taxation as a foreign corporation doing business in such
jurisdiction. In each jurisdiction where such qualification shall be effected,
the Company will, unless the Representatives agree that such action is not
at
the time necessary or advisable, use all reasonable efforts to file and make
such statements or reports at such times as are or may be required by the laws
of such jurisdiction.
3.4. Delivery
to the Underwriters of Prospectuses.
The
Company will deliver to the Underwriters, without charge, from time to time
during the period when the Prospectus is required to be delivered under the
Securities Act or the Exchange Act such number of copies of each Preliminary
Prospectus and the Prospectus as the Underwriters may reasonably request and,
as
soon as the Registration Statement or any amendment or supplement thereto
becomes effective, deliver to the Representatives one original executed
Registration Statement, including exhibits, and all post-effective amendments
thereto and copies of all exhibits filed therewith or incorporated therein
by
reference and all original executed consents of certified experts. The Company
consents to the use and delivery of the Preliminary Prospectus by the
Underwriters in accordance with Rule 430 and Section 5(b) of the Securities
Act.
3.5. Events
Requiring Notice to the Representatives.
The
Company will notify the Representatives immediately and confirm the notice
in
writing (i) of the effectiveness of the Registration Statement and any amendment
thereto, (ii) of the issuance by the Commission of any stop order or of the
initiation, or the threatening, of any proceeding for that purpose, (iii) if
it
becomes aware of the issuance by any state securities commission of any
proceedings for the suspension of the qualification of the Shares for offering
or sale in any jurisdiction or of the initiation, or the threatening, of any
proceeding for that purpose, (iv) of the filing with the Commission of any
amendment or supplement to the Registration Statement or Prospectus, including
but not limited to Rule 462(b) under the Securities Act and (v) of the receipt
of any comments or request for any additional information from the Commission.
If the Commission or any state securities commission shall enter a stop order
or
suspend such qualification at any time, the Company will make every reasonable
effort to obtain promptly the lifting of such order. The Company will not,
prior
to the Effective Date or thereafter during such period as the Prospectus is
required by law to be delivered in connection with the sales of the Shares
by
the Underwriters or a dealer, except as required by applicable law, file any
amendment to the Registration Statement or any amendment of or supplement to
the
Prospectus (including the prospectus required to be filed pursuant to Rule
424(b)) that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement to which the Representatives shall
reasonably object in writing after being timely furnished in advance a copy
thereof. The Company will provide the Representatives with copies of all such
amendments, filings and other documents a sufficient time prior to any filing
or
other publication thereof to permit the Representatives a reasonable opportunity
to review and comment thereon.
3.6. Review
of Financial Statements.
For a
period of three years from the Effective Date, the Company, at its expense,
shall cause its regularly engaged independent registered public accounting
firm
to participate in and to review (“review” is defined in terms of the standard
procedures to be performed on interim financial information as prescribed by
the
PCAOB, and is not meant to be an audit or audit procedures) any interim
financial statements or financial data, including that provided to the
Representatives, prior to the announcement of quarterly financial information,
the filing of such data in the Company’s Form 6-K, quarterly or other reports
containing interim financial information or the mailing of any quarterly or
other interim financial information to stockholders.
16
3.7. Standard
& Poor’s; Secondary Trading.
If the
Company does not maintain the listing of the Offered Securities on the AMEX
during the three-year period following the Effective Date, the Company will,
to
the extent reasonably requested by the Representatives, take all necessary
and
appropriate actions (i) to achieve accelerated publication in Standard and
Poor’s Corporation Records Corporate Descriptions and to maintain such
publication with updated information for a period of three years from the
Effective Date, including the payment of any necessary fees and
expenses
or (ii)
otherwise take such action to obtain a secondary market trading exemption in
such states as may be reasonably requested by the Representatives, including
the
payment of any necessary fee and expenses and the filing of requisite
forms.
3.8. AMEX
Maintenance.
For a
period of three years from the date hereof, the Company will, unless the
Representatives agree otherwise, use its best efforts to maintain the listing
by
the AMEX of the Shares.
3.9. Rule
462(b) Compliance.
If the
Company elects to rely on Rule 462(b) under the Securities Act, the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees under the Securities
Act
by the earlier of: (i) 10:00 p.m., New York City time, on the date of this
Agreement, and (ii) the time that confirmations are given or sent, as specified
by Rule 462(b)(2) as well as any additional fees due the NASD upon such
filing.
3.10. Public
Relations Firm.
The
Company shall, unless the Representatives agree otherwise, retain a public
relations firm reasonably acceptable to the Representatives for a period of
three years from the Effective Date. The Company shall promptly release and
distribute disclosure of all material information, financial or otherwise,
concerning its affairs in accordance with applicable law and the disclosure
policies of the AMEX.
3.11. Reports
to the Representatives and Others.
3.11.1. Periodic
Reports, Etc.
For a
period of three years from the Effective Date, the Company will promptly
furnish, electronically or in hard copy, to the Representatives copies of such
financial statements and other periodic and special reports as the Company
from
time to time files with the Commission, any securities exchange or the NASD
or
furnishes generally to holders of any class of its securities, and promptly
furnish to the Representatives (i) a copy of each periodic report the Company
shall be required to file with the Commission, (ii) a copy of every press
release and every news item and article with respect to the Company or its
affairs that was released by the Company, (iii) a copy of each Form 6-K prepared
by the Company, and (iv) such additional documents and information regarding
the
Company and the affairs of any future subsidiaries of the Company as the
Representatives may from time to time reasonably request and which can be
prepared or obtained by the Company without unreasonable effort or
expense.
3.11.2. Transfer
Sheets and Weekly Position Listings.
For a
period of three years from the Closing Date, the Company will furnish to the
Representatives at the Company’s sole expense such transfer sheets and position
listings of the Company’s securities as the Representatives may reasonably
request, including the daily and monthly consolidated transfer sheets of the
transfer agent of the Company and the weekly position listings of the Depository
Trust Company.
3.12. Underwriters’
Purchase Option.
On the
Closing Date, the Company will execute and deliver the Underwriters’ Purchase
Option to the Representatives or their designees in the form filed as an exhibit
to the Registration Statement or as otherwise reasonably acceptable to the
Representatives in such name or names and in such denominations as requested
by
the Representatives.
3.13. Disqualification
of Form F-1 or Form F-3 (or other appropriate form).
For a
period equal to three (3) years from the date hereof, the Company will not
take
any action or actions that prevents or disqualifies the Company’s use of Form
F-1 or Form F-3 (or other appropriate form) for the registration of the
Underwriters’ ADSs under the Securities Act.
17
3.14. Payment
of Expenses.
3.14.1. General
Expenses.
The
Company hereby agrees to pay on the Closing Date and, to the extent not paid
on
the Closing Date, on the Option Closing Date, all expenses incident to the
performance of the obligations of the Company under this Agreement, including
but not limited to (i) registration and other fees and expenses related to
compliance with the Securities Act; (ii) the preparation, printing, filing,
delivery and mailing (including the payment of postage with respect to such
mailing) of the Registration Statement, the Prospectus and the Preliminary
Prospectuses, including the cost of all copies thereof and any amendments
thereof or supplements thereto supplied to the Underwriters in quantities as
may
be required by the Underwriters, (iii) the issuance and delivery of the Ordinary
Shares and the printing, issuance and delivery of the Underwriters’ Purchase
Option, including any transfer or other taxes payable thereon, (iv) the
qualification of the Offered Securities under state or foreign securities or
Blue Sky laws, including the filing fees under such Blue Sky laws, the costs
of
preparing, printing and mailing the Final Blue Sky Memorandum, and all
amendments and supplements thereto, which shall not exceed $2,500 in the
aggregate, (v) the fees and disbursements of the Company’s U.S. counsel and fees
and disbursements of local counsel, if any, retained for such purpose and
reasonable fees and disbursements of the Company’s independent accountants; (vi)
filing fees, costs and expenses, payable to the Commission, the NASD, or other
regulators in connection with the Offering, (vii) costs of placing “tombstone”
advertisements in The
Wall Street Journal,
The
New York Times
and a
third publication to be selected by the Representatives, the total costs of
such
advertisements not to exceed $25,000, (viii) fees and disbursements of the
transfer agent and costs to DTC, (ix) the Company’s expenses associated with
“due diligence” meetings arranged by the Representatives, (x) the preparation,
binding and delivery of velobound transaction “bibles” in quantity, form and
style satisfactory to the Representatives; (xi) any listing of the Offered
Securities on any securities exchange and any listing in Standard & Poor’s;
and (xii) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for in this
Section 3.14.1. The Representatives may deduct from the net proceeds of the
Offering payable to the Company on the Closing Date, or the Option Closing
Date,
if any, the expenses set forth in this Agreement to be paid by the Company
to
reimburse the Representatives. For the avoidance of doubt, except as set forth
in Section 3.14.2 and 3.14.3, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
any
resale of the Shares by them and all advertising (other than the tombstone
advertisements referenced in Section 3.14.1(vii)), mailing, telephone, travel,
clerical or other office costs incurred.
3.14.2. Non-Accountable
Expenses.
The
Company further agrees that, in addition to the expenses payable pursuant to
Section 3.14.1, if the purchase and sale of the Offered Securities occurs,
it
will pay to the Underwriters a non-accountable expense allowance equal to two
percent (2%) of the gross proceeds received by the Company from the sale of
the
Firm ADSs, $4,950 of which has been paid to date, and the Company will pay
the
balance on the Closing Date by certified or bank cashier’s check or, at the
election of the Representatives, by deduction from the proceeds of the Offering
contemplated herein. For the avoidance of doubt, the Underwriters shall not
be
entitled to receive such non-accountable allowance from the sale of any Optional
ADSs.
3.14.3. Expenses
if Closing Does Not Occur.
In the
event that the Underwriters are willing to proceed with the purchase and sale
of
the Offered Securities as set forth in Section 1 and the Company elects not
to
proceed with the purchase and sale of the Offered Securities other than for
cause relating to the negligence or misconduct of the Underwriters, then the
Underwriters will be entitled, upon presentation of a written accounting in
reasonable detail, to prompt reimbursement of the excess, over unused
non-accountable retainers advanced, of all actual out-of-pocket expenses,
including reasonable fees and expenses of the Underwriters’ counsel, related to
the purchase and sale of the Offered Securities. If the purchase and sale of
the
Offered Securities is not consummated for any reason other than the reason
set
forth in the preceding sentence, then the Underwriters will be entitled, upon
presentation of a written accounting in reasonable detail, to prompt
reimbursement of the excess, over unused non-accountable retainers advanced,
of
all actual out-of-pocket expenses, related to the purchase and sale of the
Offered Securities, not to exceed $75,000.
18
3.15.
Application
of Net Proceeds.
The
Company will apply the net proceeds from the Offering received by it in a manner
consistent with the application described under the caption “Use of Proceeds” in
the Prospectus. The Company applied the net proceeds from the sale of its Series
A senior convertible promissory notes received by it in a manner consistent
with
the application described under the caption “Operating and Financial Review and
Prospects—Liquidity and Capital Resources.” The Company applied the proceeds of
the April 2005 capital contribution by FinSirton to working
capital.
3.16. Delivery
of Earnings Statements Etc. to Security Holders.
The
Company will make generally available to its security holders as soon as
practicable, but not later than the first day of the fifteenth full calendar
month following the Effective Date, an earnings statement (which need not be
certified by independent certified public accountants unless required by the
Exchange Act, but which shall satisfy the provisions of Rule 158(a) under
Section 11(a) of the Exchange Act) covering a period of at least twelve
consecutive months beginning after the Effective Date.
For a
period of at least three years after the Effective Date, the Company will mail
written notice of all shareholders’ meetings to all shareholders at least 10
days prior to each ordinary or extraordinary meeting and, to the extent required
by law or the AMEX rules and regulations, provide information to shareholders
in
connection therewith substantially equivalent to information required to be
provided under Regulation 14A under the Exchange Act.
3.17. Stabilization.
The
Company will not take, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result in,
under the Exchange Act, or otherwise, stabilization or manipulation of the
price
of any security of the Company to facilitate the sale or resale of the Offered
Securities.
3.18. Internal
Controls.
The
Company will develop a system of internal accounting controls to be compliant
with the requirements of Sarb-Ox (and the rules promulgated thereunder) and
which the Company will develop to be sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management’s general or
specific authorization, (ii) transactions are recorded as necessary in order
to
permit preparation of financial statements in accordance with generally accepted
accounting principles and to maintain accountability for assets, (iii) access
to
assets is permitted only in accordance with management’s general or specific
authorization, (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
and (v)
the material weakness issues raised by the Company’s independent registered
auditors including those described in the Prospectus as material weaknesses
are
rectified as soon as practicable.
3.19. Accountants.
For a
period of three years from the Effective Date, the Company shall retain an
independent registered accounting firm reasonably acceptable to the
Representatives,
provide
that the Representatives shall not delay in approving any independent registered
accounting firm such that the Company’s ability to comply with applicable law is
hindered. Reconta Ernst & Young is acceptable to the
Representatives.
19
3.20. Transfer
Agent.
For a
period of three years from the Effective Date, the Company shall retain a
transfer agent (“Transfer Agent”) for the Ordinary Shares reasonably acceptable
to the Representatives. The Bank of New York is acceptable to the
Representatives.
3.21. Sale
of Shares.
The
Company agrees not to effect a private or public sale or private or public
offering of any of its equity securities for a period of six months from the
Effective Date provided, however nothing herein shall prohibit or restrict
the
Company from granting options or selling shares pursuant to the Company's
existing employee benefit plans and may, without the consent of the
Representatives, issue up to a number of shares equal to five percent of its
existing outstanding share capital in connection with the acquisition of, or
merger with, another company or its assets, provided the recipient of such
shares enters into a look-up agreement substantially similar to those signed
by
our other shareholders providing for a minimum lock up period of six months
from
the Effective Date.
4. Conditions
of the Underwriters’ Obligations.
The
obligations of the Underwriters to purchase and pay for the Shares, as provided
herein, shall be subject to the continuing accuracy of the representations
and
warranties of the Company as of the date hereof and as of each of the Closing
Date and the Option Closing Date, if any, to the accuracy of the statements
of
officers of the Company made pursuant to the provisions hereof and to the
performance by the Company of its obligations hereunder and to the following
conditions.
4.1. Regulatory
Matters.
4.1.1. Effectiveness
of Registration Statement.
The
Registration Statement has been declared effective on the date of this
Agreement, the Prospectus has been timely filed with the Commission, and, at
each of the Closing Date and the Option Closing Date, no stop order suspending
the effectiveness of the Registration Statement or suspending the use of the
Prospectus shall have been issued and no proceedings for such purpose shall
have
been instituted or shall be pending or threatened by the Commission and any
request on the part of the Commission for additional information shall have
been
complied with to the reasonable satisfaction of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel
to
the Underwriters.
4.1.2. NASD
Clearance.
By the
Effective Date, the Representatives shall have received clearance from the
NASD
as to the amount of compensation allowable or payable to the Underwriters as
described in the Registration Statement.
4.1.3. No
Blue Sky Stop Orders.
No
order suspending the sale of the Shares in any jurisdiction designated by the
Representatives pursuant to Section 3.3 hereof shall have been issued on or
before either the Closing Date or the Option Closing Date, and no proceedings
for that purpose shall have been instituted or shall be
contemplated.
4.2. Company
Counsel Matters.
4.2.1. Opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe, LLP.
On the
Effective Date, on the Closing Date and each Option Closing Date, if any, the
Representatives shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, special United States securities law counsel for the Company,
dated on such date, addressed to the Underwriters and in form and substance
reasonably satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Underwriters,
regarding the matters set forth on Exhibit A hereto.
4.2.2. Opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇.
On the
Effective Date, on the Closing Date and each Option Closing Date, if any, the
Representatives shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ &
Sutcliffe, Italian counsel for the Company, dated on such date, addressed to
the
Underwriters and in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLP, counsel to the Underwriters, regarding the matters set forth on
Exhibit B hereto.
20
4.2.3. Opinion
of Kleinfeld, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, LLP.
On the
Effective Date, on the Closing Date and each Option Closing Date, if any, the
Representatives shall have received the opinion of Kleinfeld, ▇▇▇▇▇▇ and ▇▇▇▇▇▇,
LLP, FDA regulatory counsel for the Company, dated on such date, addressed
to
the Underwriters and in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLP, counsel to the Underwriters, regarding the matters set forth on
Exhibit C hereto.
4.2.4. Opinion
of European Regulatory Counsel.
On the
Effective Date, on the Closing Date and each Option Closing Date, if any, the
Representatives shall have received the opinion of the Company’s European
Regulatory Counsel dated on such date, addressed to the Underwriters and in
form
and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the
Underwriters, regarding the matters set forth on Exhibit D hereto.
4.2.5. Opinion
of Dragotti and Associati.
On the
Effective Date, on the Closing Date and each Option Closing Date, if any, the
Representatives shall have received the opinion of Dragotti and Associati,
patent counsel for the Company, dated on such date, addressed to the
Underwriters and in form and substance satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP,
counsel to the Underwriters, regarding the matters set forth on Exhibit E
hereto.
4.2.6 Opinion
of Counsel for the Depository.
The
Representatives shall have received an opinion, dated such Closing Date, of
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Depositary, to the effect set
forth in Exhibit F hereto.
4.2.7. Reliance.
In
rendering such opinions, each such counsel may rely (i) as to matters involving
the application of laws other than the laws of the jurisdictions in which they
are admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form
and
substance reasonably satisfactory to the Underwriters’ counsel) of other counsel
reasonably acceptable to the Underwriters’ counsel, familiar with the applicable
laws, and (ii) as to matters of fact, to the extent they deem proper, on
certificates or other written statements of officers of departments of various
jurisdiction having custody of documents respecting the corporate existence
or
good standing of the Company, provided that copies of any such statements or
certificates shall be delivered to the Underwriters’ counsel if
requested.
4.3. Cold
Comfort Letter.
At the
time this Agreement is executed, and at each of the Closing Date and the Option
Closing Date, if any, you shall have received a letter, in accordance with
the
requirements of the Public Company Accounting Oversight Board (United States)
(“PCAOB”) AU 634k-“Letters for Underwriters and Certain Other Requesting
Parties,” addressed to the Underwriters and in form and substance satisfactory
in all respects to you and to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Underwriters,
from Reconta Ernst & Young, S.p.A. dated, respectively, as of the date of
this Agreement and as of the Closing Date and the Option Closing
Date,
if
any:
(i)
confirming
that they are independent registered public accounting firm with respect to
the
Company within the applicable rules and regulations thereunder adopted by the
Securities and Exchange Commission (“SEC”) and the PCAOB;
(ii) stating
that in their opinion the financial statements of the Company audited by them
and included in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and
the related rules and regulations adopted by the SEC;
21
(iii) stating
that, with respect to the three-month periods ended March 31, 2005, they have
performed the procedures specified by the PCAOB for a review of interim
financial information as described in ▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Financial Information,
on
the unaudited condensed balance sheet at March 31, 2005, and the unaudited
condensed statement of operations and shareholders’ equity for the three month
period ended March 31, 2005.
(iv)
based
on
the performance of procedures specified by the PCAOB, nothing has come to their
attention that would lead them to believe that (a) any material modifications
should be made to the unaudited condensed financial information described in
(iii) above for them to be in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements of the Company included in the Registration Statement
(except that the unaudited interim financial statements do not include an
unaudited cash flow statement for the three month period ended March 31, 2005,
nor do they contain explanatory footnotes), and (b) at March 31, 2005, there
was
any change in the capital stock, increase in long-term debt of the Company,
or
any decrease in net current assets (working capital) or stockholders’ equity of
the Company as compared with amounts shown in the December 31, 2004 balance
sheet included in the Registration Statement, other than as set forth in or
contemplated by the Registration Statement, or, if there was any decrease,
setting forth the amount of such decrease;
(iv) stating
that they have compared specific currency amounts, numbers of shares,
percentages of revenues and earnings, statements and other financial information
pertaining to the Company set forth in the Prospectus in each case to the extent
that such amounts, numbers, percentages, statements and information may be
derived from the general accounting records, and work sheets, of the Company
with the results obtained from the application of specified readings, inquiries
and other appropriate procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing standards) set forth
in the letter and found them to be in agreement; and
(v) statements
as to such other matters incident to the transaction contemplated hereby as
you
may reasonably request.
4.4 Representations
and Warranties and Performance of Covenants.
The
representations and warranties of the Company contained in this Agreement and
in
the certificates delivered pursuant to Section 4.5 shall be true and correct
when made and on and as of the Closing Date and each Option Closing Date as
if
made on such date. The Company shall have performed all covenants and agreements
and satisfied all the conditions contained in this Agreement required to be
performed or satisfied by them at or before such Closing Date.
4.5. Officers’
Certificates.
4.5.1. Officers’
Certificate.
The
Representatives shall have received on each Closing Date a certificate,
addressed to the Representatives and dated such Closing Date, of the chief
executive officer and the chief financial officer of the Company to the effect
that: (i) the representations, warranties and agreements of the Company in
this
Agreement were true and correct when made and are true and correct as of such
Closing Date; (ii) the Company has performed all covenants and agreements and
satisfied all conditions contained herein; (iii) they have carefully examined
the Registration Statement and Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus 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,
in
light of the circumstances under which they were made, not misleading, and
(B)
since the Effective Date no event has occurred which should have been set forth
in a supplement or otherwise required an amendment to the Registration statement
or the Prospectus; and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued, and to their knowledge, no proceedings
for that purpose have been instituted or are pending under the Securities Act.
22
4.5.2. Secretary’s
Certificate.
At each
of the Closing Date and the Option Closing Date, if any, the Underwriters shall
have received a certificate of the Company signed by the Secretary of the
Company, dated the Closing Date or the Option Date, as the case may be,
respectively, certifying (i) that the By-Laws and Articles of Association,
as
amended, of the Company are true and complete, have not been modified and are
in
full force and effect, (ii) that the resolutions relating to the public offering
contemplated by this Agreement are in full force and effect and have not been
modified, (iii) all correspondence between the Company or its counsel and the
Commission, (iv) all correspondence between the Company or its counsel and
AMEX
concerning listing of the Shares on AMEX and (vi) as to the incumbency of the
officers of the Company. The documents referred to in such certificate shall
be
attached to such certificate.
4.5.3 Further
Certificates.
The
Company shall have furnished or caused to be furnished to the Representatives
such further certificates or documents as the Representatives shall have
reasonably requested.
4.6. No
Material Changes.
Prior to
and on each of the Closing Date and the Option Closing Date, if any, (i) there
shall have been no material adverse change or development involving a
prospective material change in the condition or prospects or the business
activities, financial or otherwise, of the Company from the latest dates as
of
which such condition is set forth in the Registration Statement and Prospectus,
(ii) there shall have been no transaction, not in the ordinary course of
business, entered into by the Company from the latest date as of which the
financial condition of the Company is set forth in the Registration Statement
and Prospectus which is materially adverse to the Company, taken as a whole,
(iii) the Company shall not be in default under any provision of any instrument
relating to any outstanding indebtedness which default would have a material
adverse effect on the Company, (iv) no material amount of the assets of the
Company shall have been pledged or mortgaged, except as set forth in the
Registration Statement and Prospectus, (v) no action suit or proceeding, at
law
or in equity, shall have been pending or threatened against the Company or
affecting any of its property or business before or by any court or federal
or
state commission, board or other administrative agency wherein an unfavorable
decision, ruling or finding may materially adversely affect the business,
operations, prospects or financial condition or income of the Company, except
as
set forth in the Registration Statement and Prospectus, (vi) no stop order
shall
have been issued under the Securities Act and no proceedings therefor shall
have
been initiated or threatened by the Commission, and (vii) the Registration
Statement and the Prospectus and any amendments or supplements thereto contain
all material statements that are required to be stated therein in accordance
with the Securities Act and conform in all material respects to the requirements
of the Securities Act, and neither the Registration Statement nor the Prospectus
nor any amendment or supplement thereto contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under
which they were made, not misleading.
4.7. Delivery
of Underwriters’ Purchase Option.
The
Company has delivered to the Representatives executed copies of the
Underwriters’ Purchase Option.
4.8. Opinion
of Counsel for the Underwriters.
All
proceedings taken in connection with the authorization, issuance or sale of
the
Shares as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the
Underwriters, and the Underwriters shall have received from such counsel a
favorable opinion, dated the Closing Date and the Option Closing Date, if any,
with respect to such of these proceedings as the Underwriters may reasonably
require. On or prior to the Effective Date, the Closing Date and the Option
Closing Date, as the case may be, counsel for the Underwriters shall have been
furnished such documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 4.8, or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or
conditions herein contained.
23
4.10. Lock-up
Agreements.
The
Representatives shall have received the Lock-up Agreements executed by each
entity or person as requested by the Representatives.
4.11. Exchange
Listing.
The
Shares shall have been approved for listing on the American Stock Exchange,
subject only to official notice of issuance.
4.12. Deposit
of Agreement.
The
Company and the Depository shall have executed and delivered the Deposit
Agreement and the Deposit Agreement shall be in full force and
effect.
4.13. Evidence
of Deposit.
The
Depositary shall have delivered to the Company at each Closing Date,
certificates satisfactory to the Underwriters evidencing the deposit with the
Depositary of the Common Shares being so deposited against issuance of ADRs
evidencing the Offered Securities to be delivered by the Company at such Closing
Date, and the execution, countersignature (if applicable), issuance and delivery
of ADRs evidencing such Offered Securities pursuant to the Deposit
Agreement.
5. Indemnification.
5.1. Indemnification
of the Underwriters.
Subject
to the conditions set forth below, the Company agrees to indemnify and hold
harmless each of the Underwriters, their respective directors, officers, agents
and employees and each person, if any, who controls either Underwriter
(“controlling person”) within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, against any and all loss, liability, claim,
damage and expense whatsoever (including but not limited to any and all legal
or
other expenses reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, whether arising out of any
action between either of the Underwriters and the Company or between an
Underwriter and any third-party or otherwise) to which they or any of them
may
become subject under the Securities Act, the Exchange Act or any other statute
or at common law or otherwise or under the laws of foreign countries, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in (i) any Preliminary Prospectus, the Registration
Statement or the Prospectus (as from time to time each may be amended and
supplemented); (ii) in any post-effective amendment or amendments or any new
registration statement and prospectus in which is included securities of the
Company issued or issuable upon exercise of the Underwriters’ Purchase Option;
or (iii) any application or other document or written communication (in this
Section 5 collectively called “application”) executed by the Company or based
upon written information furnished by the Company in any jurisdiction in order
to qualify the Shares under the securities laws thereof or filed with the
Commission, any state securities commission or agency, any securities exchange;
or the omission or alleged omission therefrom of a material fact required to
be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter through either
Representative expressly for use in any Preliminary Prospectus, the Registration
Statement or Prospectus, or any amendment or supplement thereof, or in any
application, as the case may be; provided that the foregoing indemnity with
respect to the Preliminary Prospectus, the Registration Statement and the
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the Preliminary
Prospectus or the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Preliminary Prospectus or the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. The Company agrees promptly to notify the Underwriters of the
commencement of any litigation or proceedings against the Company or any of
its
officers, directors or controlling persons in connection with the issue and
sale
of the Shares or in connection with the Registration Statement or
Prospectus.
24
5.2. Indemnification
of the Company.
Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, against any and all loss, liability, claim,
damage and expense whatsoever (including but not limited to any and all legal
or
other expenses reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, whether arising out of any
action between the Underwriters and the Company or between the Company and
any
third-party or otherwise) described in the foregoing indemnity from the Company
to the several Underwriters, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions directly
relating to the transactions effected by the Underwriters in connection with
this offering made in any Preliminary Prospectus, the Registration Statement
or
Prospectus or any amendment or supplement thereto or in any application in
reliance upon, and in conformity with, written information furnished to the
Company by any Underwriter through either Representative expressly for use
in
such Preliminary Prospectus, the Registration Statement or Prospectus or any
amendment or supplement thereto or in any such application. In case any action
shall be brought against the Company based on any Preliminary Prospectus, the
Registration Statement or Prospectus or any amendment or supplement thereto
or
any application, and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company shall have the rights and duties given to several
Underwriters by the provisions of Section 5.1.2.
5.3 Procedure.
Any
party that proposes to assert the right to be indemnified under this Section
will, promptly after receipt of notice of commencement of any action, suit
or
proceeding against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided for in
Section 5.1 or 5.2 shall be available to any party who shall fail to give notice
as provided in this Section 5.3 if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice but the omission so to notify
such
indemnifying party of any such action, suit or proceeding shall not relieve
it
from any liability that it may have to any indemnified party for contribution
or
otherwise than under this Section. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate in, and, to the extent that it shall wish, jointly
with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in writing
by the indemnifying parties, (ii) the indemnified party shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the indemnifying party
(in which case the indemnifying parties shall not have the right to direct
the
defense of such action on behalf of the indemnified party) or (iii) the
indemnifying parties shall not have employed counsel to assume the defense
of
such action within a reasonable time after notice of the commencement thereof,
in each of which cases the fees and expenses of counsel shall be at the expense
of the indemnifying parties. An indemnifying party shall not be liable for
any
settlement of any action, suit, and proceeding or claim effected without its
written consent, which consent shall not be unreasonably withheld or delayed.
25
5.4. Contribution.
5.4.1. Contribution
Rights.
In
order to provide for just and equitable contribution under the Securities Act
in
any case in which (i) any person entitled to indemnification under this Section
5 makes claim for indemnification pursuant hereto but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case, or (ii) contribution under the Securities Act, the Exchange Act
or
otherwise may be required on the part of any such person in circumstances for
which indemnification is provided under this Section 5, then, and in each such
case, the Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial offering price appearing
thereon and the Company is responsible for the balance; provided, that, no
person guilty of a 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. Notwithstanding
the provisions of this Section 5.4, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay in respect of such losses, liabilities,
claims, damages and expenses.
For
purposes of this Section, each director, officer and employee of an Underwriter,
and each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act, shall have the same rights to contribution
as
such Underwriter.
5.4.2. Contribution
Procedure.
Within
fifteen days after receipt by any party to this Agreement (or its
representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of
the commencement thereof, but the omission to so notify the contributing party
will not relieve it from any liability that it may have to any other party
other
than for contribution hereunder. In case any such action, suit or proceeding
is
brought against any party, and such party notifies a contributing party or
its
representative of the commencement thereof within the aforesaid fifteen days,
the contributing party will be entitled to participate therein with the
notifying party and any other contributing party similarly notified. Any such
contributing party shall not be liable to any party seeking contribution on
account of any settlement of any claim, action or proceeding that was effected
by the party seeking contribution without the written consent of such
contributing party. The contribution provisions contained in this Section are
intended to supersede, to the extent permitted by law, any right to contribution
under the Securities Act, the Exchange Act or otherwise available.
6. Default
by an Underwriter.
If an
Underwriter shall default in its obligations to purchase Shares hereunder,
each
non-defaulting Underwriter may, in its discretion, arrange for itself or another
party or parties to purchase such Shares on the terms contained herein. In
the
event that within one business day after such default the non-defaulting
Underwriters do not arrange for the purchase of the Shares as to which such
default relates, this Agreement will thereupon terminate automatically (but
only
with respect to the obligations relating to the Optional ADSs if such default
occurs after the Closing Date) without liability on the part of the Company
(except as provided in Sections 3.14 and 5.1 hereof) or the non-defaulting
Underwriter, but nothing herein shall relieve the defaulting Underwriter of
its
liability, if any, to the non-defaulting Underwriter and to the Company for
damages occasioned by its default.
26
7. Additional
Covenants.
7.1. Board
Designee.
The
Company shall use its reasonable best efforts to cause FinSirton S.p.A. to
enter
an agreement with the Representatives whereby FinSirton S.p.A. agrees to vote
its shares in favor of a designee of the Representatives who is reasonably
acceptable to the Company as a member of the Board of Directors of the Company
until the annual shareholders’ meeting in April 2006. The Company further
agrees, if requested by the Representatives, to convene a special meeting of
shareholders for the purpose of electing
such designee. Such
designee
(if elected as a director) shall be entitled to be reimbursed for all reasonable
out-of-pocket expenses incurred in attending such meetings, including but not
limited to food, lodging and transportation and such designee (if elected as
a
director) shall be entitled to receive compensation substantially equivalent
to
that of other non-management directors of the Company for serving on the Board
and for serving on such committees of the board to which he or she is appointed.
The Company will obtain and maintain a liability insurance policy affording
coverage for the acts of its officers and directors in an amount not less than
$5,000,000 and will include the Representatives’ designee (if elected as a
director) as an insured under such policy. Until such designee is elected,
the
Company agrees to permit an observer appointed by the Representatives to attend
all board meetings and to give the Representatives (or their designated observer
once designated) written notice of each such meeting and an agenda and minutes
of the meeting no later than it gives such notice and provides such items to
the
other directors.
7.2. Press
Releases.
The
Company will not issue a press release or engage in any other publicity until
45
days after the Effective Date without the prior written consent of the
Representatives.
8. Representations
and Agreements to Survive Delivery.
Except
as the context otherwise requires, all representations, warranties and
agreements contained in this Agreement shall be deemed to be representations,
warranties and agreements at the Closing Dates and such representations,
warranties and agreements of the Underwriters and Company, including the
indemnity agreements contained in Section 5 hereof, shall remain operative
and
in full force and effect regardless of any investigation made by or on behalf
of
the Underwriters, the Company or any controlling person, and shall survive
termination of this Agreement or the issuance and delivery of the Shares to
the
several Underwriters until the earlier of the expiration of any applicable
statute of limitations and the seventh anniversary of the later of the Closing
Date or the Option Closing Date, if any, at which time the representations,
warranties and agreements shall terminate and be of no further force and
effect.
9. Effective
Date of this Agreement and Termination Thereof.
9.1. Effective
Date. This
Agreement shall become effective on the Effective Date at the time that the
Registration Statement is declared effective.
27
9.2. Termination.
The
Underwriters shall have the right to terminate this Agreement at any time prior
to any Closing Date, (i) if any domestic or international event or act or
occurrence has materially disrupted commercial banking or securities settlement
or clearance services in the United States, or (ii) if trading in securities
generally on the New York Stock Exchange or the AMEX shall have been suspended
or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been fixed, or maximum ranges for
prices for securities shall have been required on the over-the-counter market
by
the NASD or by order of the Commission or any other government authority having
jurisdiction, or (iii) in the event of a material outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war (including without limitation as a result of
an
act of terrorism) if the effect of any such event specified in this clause
(iii)
in the reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Shares being
delivered on the Closing Date on the terms and in the manner contemplated in
the
final prospectus, or (iv) if a banking moratorium has been declared by a New
York State or federal authority, or (v) if a moratorium on foreign exchange
trading has been declared which materially adversely impacts the U.S. securities
markets; (vi) if the Company shall have sustained a material loss by fire,
flood, accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act which, whether or not such loss shall have been insured, will,
in
the reasonable opinion of the Representatives, make it inadvisable to proceed
with the delivery of the Shares, or (vii) if ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ shall no longer
serve the Company in her present capacity, or (ix) if the Company has breached
any of its representations, warranties or obligations hereunder in a material
respect, or (x) if the Underwriters shall have become aware after the date
hereof of such a material adverse change in the financial condition or results
of operations or prospects of the Company or such adverse material change in
general market conditions, including without limitation as a result of terrorism
activities after the date hereof, as in the Representatives’ reasonable judgment
would make it impracticable to proceed with the offering, sale and/or delivery
of the Shares or to enforce contracts made by the Underwriters for the sale
of
the Shares.
9.3. Notice.
If the
Underwriters elect to prevent this Agreement from becoming effective or to
terminate this Agreement as provided in this Section 9, the Company shall be
notified on the same day as such election is made by the Underwriters by
telephone or telecopy, confirmed
by
letter.
9.4. Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall not be
in
any way affected by, such election or termination or failure to carry out the
terms of this Agreement or any part hereof.
10. Miscellaneous.
10.1. Notices.
All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered or telecopied and
confirmed.
If
to the
Underwriters:
|
Maxim
Group LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
|
I-Bankers
Securities Incorporated
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Copy
to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇
▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
28
If
to the
Company:
Gentium,
S.p.A.
▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier:
39-348-4450-313
Copy
to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe, LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
10.2. Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any
of
the terms or provisions of this Agreement.
10.3. Amendment.
This
Agreement may be amended only by a written instrument executed by each of the
parties hereto.
10.4. Entire
Agreement.
This
Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
10.5. Binding
Effect.
This
Agreement shall inure solely to the benefit of and shall be binding upon, the
Underwriters, the Company and the controlling persons, directors and officers
referred to in Section 5 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed
to
have any legal or equitable right, remedy or claim under or in respect of or
by
virtue of this Agreement or any provisions herein contained.
10.6. Governing
Law, Jurisdiction.
This
Agreement shall be governed by and construed and enforced in accordance with
the
law of the State of New York, without giving effect to conflicts of law. The
Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to CT Corporation System, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action,
proceeding or claim. The parties agree that the prevailing party(ies) in any
such action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys’ fees and expenses relating to such action or proceeding
and/or incurred in connection with the preparation therefor.
10.7. Execution
in Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
29
10.8. Waiver,
Etc.
The
failure of any of the parties hereto at any time to enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver
of
any such provision, nor in any way to affect the validity of this Agreement
or
any provision hereof or the right of any of the parties hereto thereafter to
enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement
shall be effective unless set forth in a written instrument executed by the
party or parties against whom or which enforcement of such waiver is sought;
and
no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
30
If
the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
| Very truly yours, | ||
| GENTIUM S.p.A. | ||
| |
|
|
| By: | /s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
| Title: President and Chief Executive Officer | ||
Accepted
on the date first above written.
MAXIM
GROUP, LLC
Acting
severally on behalf of itself and as one
of
the
Representatives of the several Underwriters
named
in
Schedule I annexed hereto
|
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
| Title: Managing Director |
I-BANKERS
SECURITIES INCORPORATED
Acting
severally on behalf of itself and as one
of
the
Representatives of the several Underwriters
named
in
Schedule I annexed hereto
|
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
| Title: Chief Financial Officer |
31
SCHEDULE
I
GENTIUM,
S.p.A.
2,400,000
American Depositary Shares
Representing
2,400,000 Ordinary Shares
|
Underwriter
|
Number
of Firm ADSs to be Purchased
|
|||
|
Maxim
Group, LLC
|
||||
|
I-Bankers
Securities Incorporated
|
||||
|
Total
|
2,400,000
|
|||
32