Exhibit 1.1
_______________ SHARES
BIOVEX GROUP, INC.
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
__________, 2006
_____________, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
As Representatives of the Several Underwriters
c/o Janney ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BIOVEX GROUP, INC., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated as representatives (together, the "REPRESENTATIVES") of the several
Underwriters named in Schedule I hereto (the "UNDERWRITERS") _______________
shares of its common stock, par value $0.0001 per share (the "FIRM SHARES"). The
Company also proposes to issue and sell to the several Underwriters not more
than an additional _________ shares of common stock, par value $0.0001 per
share, of the Company (the "ADDITIONAL SHARES") if and to the extent that you,
as managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The shares of common
stock, par value $0.0001 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-135148),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first filed with the Commission pursuant to Rule
424(b) under the Securities Act is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement.
For purposes of this Agreement, "FREE WRITING PROSPECTUS" has the meaning
set forth in Rule 405 under the Securities Act, "PRELIMINARY PROSPECTUS" means
any preliminary prospectus included in the Registration Statement or filed with
the Commission pursuant to Rule 424(a) under the Securities Act, "TIME OF SALE
PROSPECTUS" means the Preliminary Prospectus identified on Schedule II hereto;
"ISSUER FREE WRITING PROSPECTUS" has the meaning set forth in Rule 433 relating
to the Shares in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the Company's records
pursuant to Rule 433(g) under the Securities Act; "DISCLOSURE PACKAGE" means the
Time of Sale Prospectus together with the Issuer Free Writing Prospectus and
other documents, if any, each identified in Schedule II hereto.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) Each Time of Sale Prospectus, at the time of filing thereof,
complied in all material respects with the requirements of the Securities
Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
except that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by or on behalf of an Underwriter through you expressly for use
therein.
(c) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, on each
effective date of such amendment or supplement, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the requirements of the Securities Act and the
rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the Registration
Statement, or the Prospectus in reliance on and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(d) For the purposes of this Agreement, the "APPLICABLE TIME" is
_____ (Eastern time) on the date of this Agreement; the Disclosure
Package, as of the Applicable Time, did not include any untrue statement
of a material fact or
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omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus identified on Schedule
II hereto does not conflict with the information contained in the
Registration Statement, the Time of Sale Prospectus or the Prospectus and
each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the other materials comprising the Disclosure Package as of
the Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the representations and warranties
set forth in this paragraph shall not apply to any statements or omissions
made in the Disclosure Package or an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to
the Company on behalf of an Underwriter through you expressly for use
therein;
(e) At the time of the initial filing of the Registration Statement
and as of the date hereof, the Company was and is not an "ineligible
issuer" as defined in Rule 405 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each Issuer
Free Writing Prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies
or will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. [Except for the free writing prospectuses, if any, identified
in Schedule II hereto, and electronic road shows, if any, furnished to you
before first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any free
writing prospectus.]
(f) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(g) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except
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to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock
of each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly by
the Company, free and clear of all liens, encumbrances, equities or
claims.
(h) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(j) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(k) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(l) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of (i) applicable law, (ii) the certificate
of incorporation or by-laws of the Company, (iii) any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or (iv)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states or the rules and
regulations of the National Association of Securities Dealers, Inc. in
connection with the offer and sale of the Shares.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement, the Time of Sale Prospectus
or the Prospectus.
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject that are required to be described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus and are not so
described and there are no statutes,
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regulations, contracts or other documents that are required to be
described in the Registration Statement, the Time of Sale Prospectus or
the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required. The Time of Sale Prospectus
contains in all material respects the same description of the foregoing
matters contained in the Prospectus.
(o) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(p) The Company and its subsidiaries (i) are, to the Company's
knowledge, in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(q) To the Company's knowledge, there are no costs or liabilities
associated with Environmental Laws (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) which would, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(r) Except as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require
the Company to include such securities with the Shares registered pursuant
to the Registration Statement except for contracts, agreements or
understandings under which such rights have been waived in connection with
the offering of the Shares.
(s) Subsequent to the respective dates as of which information is
given in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (i) the Company and its subsidiaries, taken as a
whole, have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction, (ii) the Company
has not purchased any of its outstanding capital stock, other than from
its employees or other service providers in connection with the
termination of their service to the Company, nor declared,
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paid or otherwise made any dividend or distribution of any kind on its
capital stock, other than ordinary and customary dividends and (iii) there
has not been any material change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, except in each case as
described in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, respectively.
(t) The Company and its subsidiaries do not own any real property.
The Company and its subsidiaries have good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, respectively, in each case free and clear of
all liens, encumbrances and defects except such as: (i) are described in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, (ii) do not materially affect the value of such property or
(iii) do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(u) Except as provided in the Registration Statement, Time of Sale
Prospectus and the Prospectus, the Company and its subsidiaries own,
possess or have the right to use, or can acquire ownership or the right to
use on reasonable terms, all material patents, patent applications, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names and other intellectual property (collectively
"INTELLECTUAL PROPERTY") necessary for the conduct of the Company's
business substantially as conducted and for the manufacture, use or sale
of the Company's previously proposed products as described in the Time of
Sale Prospectus and, except as provided in the Registration Statement,
Time of Sale Prospectus and the Prospectus the Company has not received
any notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries as a whole.
(v) To the Company's knowledge, there are no valid and enforceable
rights of third parties to such Intellectual Property that are or would be
infringed by the business currently conducted by the Company and its
subsidiaries or in the manufacture, use, sale or offer for sale of its
presently proposed products, except as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, or except where
such infringement would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
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(w) Except as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, the Company and its subsidiaries are
not subject to any judgment, order, writ, injunction or decree of any
court or any federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, or any arbitrator, nor have they entered into or are a party
to any contract, which restricts or impairs its use of any Intellectual
Property that is material to the business currently, or proposed, to be
conducted by the Company and its subsidiaries.
(x) To the Company's knowledge, there are no ongoing infringements
by others of any Intellectual Property owned by the Company or its
subsidiaries in connection with the business currently conducted by the
Company or its subsidiaries or the Company's presently proposed products,
except as described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
(y) No material labor dispute with the employees of the Company or
any of its subsidiaries exists, except as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus or, to the
knowledge of the Company or any subsidiary, is imminent; and the Company
has not received any actual notice of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(z) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as the Company and its subsidiaries believe are prudent and
customary in the businesses in which they are engaged; neither the Company
nor any of its subsidiaries have been refused any insurance coverage
sought or applied for; and neither the Company nor any of its subsidiaries
have any 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 at a cost that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, except as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus.
(aa) To the Company's knowledge, the Company and its subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, including without limitation, all
U.S. Food and Drug Administration (the "FDA") and applicable foreign
regulatory agency approvals, except where the failure to obtain any such
certificates, authorizations, permits or regulatory approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the Company and
its
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subsidiaries, taken as a whole, except as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(bb) The Company and its subsidiaries have operated their businesses
and currently are in compliance in all material respects with all
applicable rules, regulations of the FDA and any applicable foreign
regulatory organization exercising comparable authority, except where
noncompliance would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(cc) The clinical trials and the animal studies conducted by or, to
the Company's knowledge, on behalf of the Company and its subsidiaries
that are described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus were and, if still pending, are being
conducted in accordance in all material respects with, if applicable,
standard medical and scientific research procedures and all applicable
rules, regulations and policies of the FDA, including current Good
Clinical Practices and Good Laboratory Practices, and all applicable
foreign regulatory requirements and standards.
(dd) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as
described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, since the end of the Company's most recent audited fiscal
year, there has been (i) no material weakness in the Company's internal
control over financial reporting (whether or not remediated) and (ii) no
change in the Company's internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Company's internal control over financial reporting.
(ee) The Company has established and maintains disclosure controls
and procedures (as defined in Rule 13a-15 under the Securities Exchange
Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"). Such disclosure controls and procedures
are designed to ensure that information required to be disclosed by the
Company is recorded, processed, summarized and reported, within the time
periods specified in the Commission's rules and forms and that such
information is accumulated and communicated to the Company's principal
executive officer and its principal financial officer. Such disclosure
controls and procedures are effective to provide reasonable assurance that
the information required to be disclosed by the Company in reports filed
under the Exchange Act is (i) recorded, processed, summarized and reported
within the time periods specified in the Commission's rules and forms and
(ii) accumulated and communicated to the Company's
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management, including its Chief Executive Office and Chief Financial
Officer, as appropriate to allow timely decisions regarding disclosure.
(ff) There are no outstanding loans made by the Company to any
executive officer (as defined in Rule 3b-7 under the Exchange Act) or
director of the Company which are prohibited by Section 13(k) of the
Exchange Act. The Company has not, since the initial filing of the
Registration Statement with the Commission, taken any action prohibited by
any applicable provisions of Section 13(k) of the Exchange Act.
(gg) Except as described in the Time of Sale Prospectus, the Company
has not sold, issued or distributed any shares of Common Stock during the
six-month period preceding the date hereof, including any sales pursuant
to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $______ per share; provided however, that firm shares
purchased from the Underwriters by existing stockholders of the Company or their
affiliated entities, up to _______________ initial Firm Shares, will be at
$______ per share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters and the Underwriters shall have the right to purchase,
severally and not jointly, up to _______________ Additional Shares at the
Purchase Price. You may exercise this right on behalf of the Underwriters in
whole or from time to time in part by giving written notice not later than 30
days after the date of this Agreement. Any exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and the date on
which such shares are to be purchased. Each purchase date must be at least two
business days after the written notice is given and may not be earlier than the
closing date for the Firm Shares nor later than ten business days after the date
of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On the time and date of each such payment
for Additional Shares (each an "OPTION CLOSING DATE"), each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased on such Option Closing Date as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
the Representatives, on behalf of the Underwriters, it will not, directly or
indirectly, during the period commencing on the date of this Agreement and
ending 180 days after the date
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of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) the sale of any Shares to the Underwriters to be
sold hereunder or (b) the exercise of options or warrants to purchase shares of
Common Stock; provided, that, the shares of Common Stock acquired upon exercise
of such options or warrants remain subject to the "lock-up" agreement,
substantially in the form of Exhibit A hereto. Notwithstanding the foregoing, if
(i) during the last 17 days of the 180-day restricted period the Company issues
an earnings release or material news or a material event relating to the Company
occurs or (ii) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day restricted period, the restrictions
imposed in this clause shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. The Company will provide the
Representatives and each individual subject to the restricted period pursuant to
the "lock-up" agreement described above with prior notice of any such
announcement that gives rise to an extension of the restricted period.
3. Terms of Public Offering. You have advised the Company that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. You have further advised the
Company that the Shares are to be offered to the public initially at
$_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of $______
a share under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Shares shall be made
to the Company in federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ____________, 2006, or at
such other time on the same or such other date, not later than _________, 2006,
as shall be designated in writing by you, and shall occur at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The time and date of such payment are hereinafter referred
to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 2 or at such other time on the same or
on such other date, in any event not later than _______, 2006, as shall be
agreed in writing by you and the Company.
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The Firm Shares and Additional Shares shall be registered in such
names and in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date or the applicable Option
Closing Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or an Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriters
duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date and
(with respect to any Additional Shares) on each Option Closing Date, are subject
to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date or, with respect to Additional Shares, on the
applicable Option Closing Date, there shall not have occurred any change,
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement, the Time of Sale Prospectus and the Prospectus
that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date or,
with respect to any Additional Shares, on the applicable Option Closing
Date, a certificate, dated the Closing Date or the Option Closing Date, as
the case may be, and signed by an executive officer of the Company, to the
effect set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date or the Option Closing Date, as
the case may be, and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date or the Option Closing
Date, as the case may be.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date or,
with respect to any Additional Shares, on the applicable Option Closing
Date, an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, outside
counsel for the Company, dated the Closing Date or the Option Closing
Date, as the case may be, in the form of Exhibit B hereto:
(d) The Underwriters shall have received on the Closing Date or,
with respect to any Additional Shares, on the applicable Option Closing
Date, an opinion of each of Fulbright Jaworski LLP, ▇.▇. ▇▇▇▇ & Co.,
Pepovich & ▇▇▇▇▇, P.A., and ▇▇▇▇▇ & Vanderhye P.C., intellectual property
counsel for the
11
Company, dated the Closing Date or the Option Closing Date, as the case
may be, in the form of Exhibits C-1, C-2, C-3 and C-4, respectively,
hereto:
(e) The Underwriters shall have received on the Closing Date or,
with respect to any Additional Shares, on the applicable Option Closing
Date, an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the
Underwriters, dated the Closing Date or the Option Closing Date, as the
case may be, with respect to the issuance of the Shares, the Registration
Statement, the Prospectus, and such other related matters as you may
reasonably request, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose of enabling
them to pass on such matters.
(f) With respect to the disclosure contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, above, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP and ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP may
state that their opinions and beliefs are based upon their participation
in the preparation of the Registration Statement, the Time of Sale
Prospectus and the Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
(g) The Underwriters shall have received, on each of the date
hereof, the Closing Date, and each Option Closing Date a letter dated the
date of the Time of Sale Prospectus, the date hereof, the Closing Date or
the Option Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters from PricewaterhouseCoopers LLP, the
Company's independent registered public accounting firm, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement,
the Time of Sale Prospectus and the Prospectus; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
(h) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to you on
or before the date hereof, shall be in full force and effect on the
Closing Date.
(i) On or before the Closing Date and any Option Closing Date, the
Representatives and counsel for the Underwriters shall have received such
information, documents and opinions as they may reasonably request for the
purpose of enabling them to pass upon the issuance and sale of the Shares
as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties or agreements contained herein.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the
12
Company at any time on or prior to the Closing Date and, with respect to the
Additional Shares at any time prior to the applicable Option Closing Date, which
termination shall be without liability of any party to any other party, except
that Sections 6(i) and 8 and the last paragraph of Section 10 shall at all times
be effective and shall survive such termination.
6. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of the
Registration Statement and all amendments thereto (including exhibits
thereto) and such number of additional copies of the Registration
Statement (without exhibits) and of all amendments thereto as you shall
reasonably request.
(b) To deliver to, or upon the order of, the Representatives, from
time to time, (i) as many copies of the Time of Sale Prospectus and any
Issuer Free Writing Prospectus as the Representatives may reasonably
request and (ii) during the period when delivery of a Prospectus (or, in
lieu thereof, the notice referred to under Rule 173(a) under the
Securities Act) is required under the Securities Act, as many copies of
the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request.
(c) Before amending or supplementing the Registration Statement, the
Time of Sale Prospectus or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object, and to
file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(d) To (i) not make any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a "free writing prospectus" (as defined in Rule 405 under the
Securities Act) required to be filed by the Company with the Commission
under Rule 433 under the Securities Act unless the Representatives
consents to its use in writing prior to first use (each, a "PERMITTED FREE
WRITING PROSPECTUS"); provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in respect of
the Issuer Free Writing Prospectus(es) included in Schedule II hereto,
(ii) treat each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, (iii) comply with the requirements of Rules 164 and
433 under the Securities Act applicable to any Issuer Free Writing
Prospectus, including the requirements relating to timely filing with the
Commission, legending and record keeping and (iv) not take any action that
would result in an Underwriter or the Company being required to file with
the Commission pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of such Underwriter that such
Underwriter otherwise would not have been required to file thereunder. The
Company will satisfy the conditions in Rule 433 under the Securities Act
to avoid a requirement to file with the Commission any electronic road
show.
13
(e) If the Disclosure Package is being used to solicit offers to buy
the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in light of the
circumstances under which they were made or then prevailing, as the case
may be, not misleading, or if any event shall occur or condition exist as
a result of which the Disclosure Package conflicts with the information
contained in the Registration Statement then on file, or if, in the
opinion of counsel for the Underwriters, after consultation with outside
U.S. counsel to the Company, it is necessary to amend or supplement the
Disclosure Package to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters and to any dealer upon request, either amendments or
supplements to the Disclosure Package so that the statements in the
Disclosure Package as so amended or supplemented, in light of the
circumstances under which they were made or then prevailing, as the case
may be, will not be misleading or so that the Disclosure Package, as
amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Disclosure Package, as amended or supplemented,
will comply with applicable law.
(f) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters,
after consultation with outside U.S. counsel to the Company, the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under
the Securities Act) is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances under which they were made or then prevailing, as the case
may be, not misleading, or if, in the opinion of counsel for the
Underwriters, after consultation with outside U.S. counsel to the Company,
it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Shares may
have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus, as so amended or supplemented,
in light of the circumstances under which they were made or then
prevailing, as the case may be, will not be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(g) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided, however, that nothing contained herein shall require
the Company to qualify to do business in any jurisdiction, to execute a
general consent to service of process in any state or to subject itself to
taxation in any jurisdiction in which it is otherwise not so subject.
14
(h) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering a period
of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of
the Registration Statement, any Preliminary Prospectus, the Time of Sale
Prospectus, the Prospectus, any Issuer Free Writing Prospectus prepared by
or on behalf of, used by, or referred to by the Company and amendments and
supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities hereinabove specified,
(ii) all costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the Shares
under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(g) hereof, including filing fees and the fees
reasonably incurred and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., including any counsel
fees incurred on behalf of or disbursements by the Representatives, (v)
all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to qualification for quotation of the Shares
on the Nasdaq Global Market, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken
in connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the
Representatives and officers of the Company and any such consultants, and,
subject to prior approval of the Company, the cost of any aircraft
chartered in connection with the road show, (ix) the document production
charges and expenses associated with printing this Agreement, (x) [all
expenses incurred
15
in connection with any offer and sale of the Shares outside of the United
States, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with offers and sales of the
Shares outside of the United States] and (xii) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section;
provided, however, that the fees and disbursement of counsel for the
Underwriters provided for in Sections (iii), (iv) and (x) above shall not
exceed in the aggregate $20,000. It is understood, however, that except as
provided in this Section, Section 8 entitled "Indemnity and Contribution,"
and the last paragraph of Section 10 below, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
7. Covenants of the Underwriters. Each Underwriter severally
covenants with the Company not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) a free
writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action
of the Underwriter.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Preliminary Prospectus, the Time
of Sale Prospectus, any Issuer Free Writing Prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company
has filed, or is required to file, pursuant to Rule 433(d) of the
Securities Act or the Prospectus or any amendment or supplement thereto,
or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from
the Company to such Underwriter, but only with reference to information
relating to such
16
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any
Preliminary Prospectus, the Time of Sale Prospectus, or any issuer free
writing prospectus or the Prospectus or any amendment or supplement
thereto. For purposes of this Agreement, the information in the Prospectus
in the __________, __________, _________ and ________ paragraphs under the
heading "Underwriters," is the only information relating to an Underwriter
presented to the Company in writing by such Underwriter expressly for use
in the Registration Statement, any Preliminary Prospectus or the Time of
Sale Prospectus, and no such information has been provided for inclusion
in any Issuer Free Writing Prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel chosen by the indemnifying party and reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel; (ii) the indemnifying party fails
to retain counsel reasonably satisfactory to the indemnified party
promptly after receiving such notice from the indemnified party or (iii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such reasonable
fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by the Representatives, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent
if (i)
17
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 8(a)
or 8(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the indemnifying party
or parties on the one hand and of the indemnifying party or parties on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an
18
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Shares 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 by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter or by or
on behalf of the Company, its officers or directors, or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
9. Termination. The Underwriters may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange or the Nasdaq Global Market, (ii) trading of any securities
of the Company shall have been suspended on Nasdaq (iii) a material disruption
in securities settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial banking activities shall
have been declared by Federal or New York State authorities or (v) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters; Reimbursement. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to
19
purchase is not more than one-tenth of the aggregate number of the Shares to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the number of Firm Shares set forth opposite their
respective names in Schedule I bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Entire Agreement.
(a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded
by this Agreement) that relate to the offering of the Shares, represents
the entire agreement between the Company and the Underwriters with respect
to the preparation of any Preliminary Prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase
and sale of the Shares.
20
(b) The Company acknowledges that in connection with the offering of
the Shares: (i) the Underwriters have acted at arms length, are not agents
of, and owe no fiduciary duties to, the Company or any other person, (ii)
the Underwriters owe the Company only those duties and obligations set
forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the Underwriters may have
interests that differ from those of the Company. The Company waives to the
full extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to its otherwise applicable conflicts of law rules.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
15. Notices. All communications hereunder shall be in writing and
effective only upon receipt and if to the Underwriters shall be delivered,
mailed or sent to you in care of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: __________________, with a copy to
the Legal Department and (ii) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated,
_____________________, Attention: ___________, with a copy to the Legal
Department; and if to the Company shall be delivered, mailed or sent to BioVex
Group, Inc., ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇,
with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇▇▇▇ Castle, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
21
Very truly yours,
BIOVEX GROUP, INC.
By: ____________________________
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
As Representatives of the Several Underwriters
Named on Schedule I hereto
c/o Janney ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
By: ____________________________________
Name:
Title:
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
By: ____________________________________
Name:
Title:
Schedule I
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC................................
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated...................
[ ].........................
[ ].........................
-------------
Total.................. =============
I-1
Schedule II
Time of Sale Prospectus
1. Preliminary Prospectus dated [September __, 2006].
II-1
Exhibit A
[FORM OF LOCK-UP LETTER]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
As Representative of the Several Underwriters
c/o Janney ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC ("▇▇▇▇▇▇")
proposes to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with BioVex Group, Inc., a Delaware corporation (the "COMPANY"), providing for
the initial public offering (the "PUBLIC OFFERING") by the several underwriters,
including Janney (collectively, the "UNDERWRITERS"), of shares (the "SHARES") of
the Common Stock, $0.0001 par value per share, of the Company (the "COMMON
STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Janney, on behalf of
the Underwriters, the undersigned will not, directly or indirectly, during the
period commencing on the date hereof and ending 180 days (the "LOCK-UP PERIOD")
after the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) the sale of any Shares to the Underwriters
pursuant to the Underwriting Agreement, (b) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering or (c) the exercise of options or warrants to
purchase shares of Common Stock; provided, that, the shares of Common Stock
acquired upon exercise of such options or warrants remain subject to this
Lock-up Agreement.
Furthermore, this Lock-Up Agreement shall not apply to (1) bona fide gifts
of securities, (2) transfers of securities to "affiliates" of the transferor if
the transfers do not involve a public distribution or public offering or (3)
transfers of participation interests in the Company's securities held by the
undersigned to affiliates of the undersigned; provided, that: (a) the recipient
of any gift described in clause (1) or the transferee of any transfer in clause
(2) or (3) agrees in writing as a condition precedent to such transfer to be
bound by the terms hereof; and (b) in the case of any gift or transfer described
in
A-1
clause (1), (2) or (3), no filing by the undersigned or any other party to such
gift or transfer under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such
gift or transfer (other than a filing on a Form 5 made after the expiration of
the Lock-Up Period). The term "affiliate" shall have the meaning given such term
in Rule 144(a) under the Securities Act of 1933, as amended.
In addition, the undersigned agrees that, without the prior written
consent of Janney, on behalf of the Underwriters, it will not, during the
Lock-Up Period, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of the undersigned's share of Common
Stock except in compliance with the foregoing restrictions.
Notwithstanding the foregoing, if
(1) during the last 17 days of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or
(2) prior to the expiration of the Lock-Up Period, the Company announces
that it will release earnings results during the 16-day period beginning on the
last day of the Lock-Up Period,
then the restrictions imposed by this Lock-Up Agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the announcement of the material news or the occurrence of
the material event, unless Janney waives, in writing, such extension.
The undersigned shall not engage in any transaction that may be restricted
by this Lock-Up Agreement during the 34-day period beginning on the last day of
the initial 180-day Lock-Up Period unless the undersigned requests and receives
prior written confirmation from the Company or Janney that the restrictions
imposed by this Lock-Up Agreement have expired.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters. It is understood that, if
the Company notifies the Underwriters that it does not intend to proceed with
the Public Offering, if the Underwriting Agreement does not become effective or
if the Underwriting Agreement (other than provisions thereof that survive
termination) shall terminate or be terminated
A-2
prior to payment for and delivery of the Shares, the undersigned shall have no
further obligations under this Lock-Up Agreement.
The terms of this Lock-Up Agreement shall be construed in accordance with
the laws of the State of New York.
A-3
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof.
Very truly yours,
________________________________________________
(Name of Stockholder - Please Print)
________________________________________________
(Address of Stockholder - Please Print)
________________________________________________
(Signature)
________________________________________________
(Name of Signatory if Stockholder is an Entity
- Please Print)
________________________________________________
(Title of Signatory if Stockholder is an Entity
- Please Print)
Dated: __________________
A-4