Exhibit 1.1
ActivBiotics, Inc.
[_____] Shares
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
, 2006
HSBC Securities (USA) Inc.,
▇▇▇▇▇▇▇ & Company, LLC,
BMO Capital Markets Corp.,
Susquehanna Financial Group, LLLP
As Representatives of the several Underwriters
c/o HSBC Securities (USA) Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ActivBiotics, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, shares of Common Stock, par value $0.01 per share
("Common Stock"), of the Company (the shares to be issued and sold by the
Company collectively being hereinafter called the "Underwritten Securities").
The Company also proposes to grant to the Underwriters an option to purchase up
to additional shares of Common Stock to cover over-allotments (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities"). The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 18 hereof.
1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 333-136593) on Form S-1, including a related
preliminary prospectus, for registration under the Act of the offering and sale
of the Securities. The Company may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission, after the
Effective Date of such registration statement, a final prospectus in accordance
with Rules 430A and 424(b). The Company has included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such registration statement and the Prospectus. As filed, such final prospectus
shall contain all Rule 430A Information that may be required, together with all
other such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto has become
effective under the Act; no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement or any
post-effective amendment thereto has been issued under the Act; no proceedings
for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission; and any request on the part of the
Commission for additional information has been complied with.
(c) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a "Settlement Date"), the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any Settlement Date, the
Prospectus (together with any supplement thereto) will not, include any 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; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in the Registration Statement or the Prospectus (or any
supplement thereto), it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) As of the Initial Sale Time, the Disclosure Package does not
contain 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. The preceding sentence
does not apply to statements in or omissions from the Disclosure Package in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof. The
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Company has made available a "bona fide electronic road show," as defined in
Rule 433, in compliance with Rule 433(d)(8)(ii) (the "Bona Fide Electronic Road
Show") such that no filing of any "road show" (as defined in Rule 433(h)) is
required in connection with the offering of the Securities.
(e) (i) At the time of filing the Registration Statement and
(ii) as of the date of the execution and delivery of this Agreement (with such
date being used as the determination date for purposes of this clause (ii)), the
Company was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission pursuant to Rule
405 that it is not necessary that the Company be considered an Ineligible
Issuer.
(f) No Issuer Free Writing Prospectus includes any information
that conflicts with the information contained in the Registration Statement,
including any document incorporated by reference therein that has not been
superseded or modified. If at any time following the issuance of an Issuer Free
Writing Prospectus there occurred or occurs a development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at the subsequent time, not misleading, the Company
has promptly notified or will promptly notify the Representatives and has
promptly amended or will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to statements in
or omissions from any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in
Section 8 hereof.
(g) Each of the Company and Metaphore Pharmaceuticals, Inc. and
ActivBiotics (Canada) Inc., the Company's only subsidiaries (the
"Subsidiaries"), has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to own or lease,
as the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Prospectus and, with respect to the
Company, to enter into and perform its obligations under this Agreement, and is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification, except in
each case to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business (a "Material Adverse Effect").
(h) All the issued and outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable. All outstanding shares of capital stock of Metaphore
Pharmaceuticals, Inc. are owned by the Company free and clear of any perfected
security interest or any other security
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interests, claims, liens or encumbrances. As of the Effective Date, fifty
percent (50%) of the outstanding shares of capital stock of ActivBiotics
(Canada) Inc. is owned by the Company free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances, other
than the security interest of Horizon Technology Funding Company LLC pursuant to
the Venture Loan and Security Agreement dated as of June 16, 2006, and fifty
percent (50%) of the outstanding shares of capital stock of ActivBiotics
(Canada) Inc. is owned of record by Canadian Medical Discoveries Fund Inc. and
The Vengrowth Advance Life Sciences Fund Inc. together. As of the Effective
Date, the Canadian Medical Discoveries Fund Inc. and The Vengrowth Advance Life
Sciences Fund Inc. have provided written notice to the Company that Canadian
Medical Discoveries Fund Inc. and The Vengrowth Advance Life Sciences Fund Inc.,
respectively, will, immediately prior to the Closing Date and contingent upon
the closing of the purchase of the Underwritten Securities, exercise their Put
Rights, as described in that certain Put and Support Agreement, dated March 22,
2005, among the Company, ActivBiotics (Canada) Inc., Canadian Medical
Discoveries Fund Inc. and The Vengrowth Advance Life Sciences Fund Inc.,
pursuant to which Put Rights, the Company will issue 1,945,524 shares of series
C-1 redeemable convertible preferred stock of the Company in exchange for all of
their shares of capital stock in ActivBiotics (Canada) Inc. None of the
outstanding shares of capital stock of the Subsidiaries was issued in violation
of the preemptive or similar rights of any securityholder of such Subsidiary.
(i) The Company's and the Subsidiaries' authorized equity
capitalization is as set forth in the Disclosure Package and the Prospectus; the
capital stock of the Company and the Subsidiaries conforms in all material
respects to the description thereof contained in the Disclosure Package and the
Prospectus; the issued and outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and validly
authorized, and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be validly issued and fully paid and
nonassessable; the certificates for the Securities are in valid and sufficient
form; the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other similar rights to subscribe for the Securities;
and, except as set forth in the Disclosure Package and the Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company or any
Subsidiary are outstanding. The description of the Company's and the
Subsidiaries' stock option, stock bonus and other stock plans or arrangements,
and the options or other rights granted thereunder, set forth in the Disclosure
Package and the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and
rights.
(j) The Securities have been approved for quotation on the
NASDAQ Global Market of the Nasdaq Stock Market, Inc. (the "Nasdaq Global
Market"). The Company has taken all necessary actions to ensure that, at such
time as the Securities are quoted on the Nasdaq Global Market, the Company will
be in compliance with all applicable corporate governance requirements set forth
in the Nasdaq Marketplace Rules that are then in effect and applicable to the
Company and is taking steps to ensure that it will be in compliance in a timely
fashion with other applicable corporate governance requirements set forth in the
Nasdaq Marketplace Rules which are in effect but not yet applicable to the
Company.
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(k) Except as disclosed in writing to the Representatives,
neither the Company nor, to the Company's knowledge, and in the case of
securityholders of the Company who are not officers or directors of the Company
or any of their affiliates, to the Company's knowledge based solely on
questionnaires sent to and received from such securityholders of the Company,
the Company's officers, directors, securityholders or any of its affiliates
(within the meaning of the National Association of Securities Dealers, Inc. (the
"NASD") Conduct Rule 2720(b)(1)(a)), directly or indirectly controls, is
controlled by, or is under common control with, or is an associated person
(within the meaning of Article I, Section 1(dd) of the By-laws of the NASD) of,
any member firm of the NASD.
(l) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or the
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements in the Prospectus under the heading
"Description of Capital Stock" insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or proceedings.
(m) This Agreement has been duly authorized, executed and
delivered by the Company.
(n) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(o) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required for the performance by the
Company of the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectus.
(p) Neither the issue and sale of the Securities nor the
consummation by the Company of any other of the transactions herein contemplated
nor the fulfillment by the Company of the terms hereof will conflict with,
result in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to, (i) the charter or bylaws of the Company or any of the
Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument, in each case that is material and to which
the Company or any of the Subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the Subsidiaries
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of the
Subsidiaries or any of its or their properties.
(q) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
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(r) The historical consolidated financial statements, together
with the related notes, of the Company and its consolidated subsidiaries
included in the Disclosure Package, the Prospectus and the Registration
Statement present fairly the financial condition, results of operations and cash
flows of the Company and its consolidated subsidiaries as of the dates and for
the periods indicated, comply as to form in all material respects with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein).
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of the Subsidiaries or its or their property is pending or, to the best
knowledge of the Company and the Subsidiaries, threatened that (i) could
reasonably be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(t) Since the respective dates as of which information is given
in the Registration Statement, the Disclosure Package or the Prospectus, except
as otherwise set forth therein, (i) there has been no Material Adverse Effect,
(ii) there have been no transactions entered into by the Company or any of the
Subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and the Subsidiaries, taken as a whole, and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(u) Each of the Company and the Subsidiaries owns or leases all
such properties as are necessary and material to the conduct of its operations
as presently conducted. The Company and the Subsidiaries have good and
marketable title to all real property owned by the Company and the Subsidiaries
and good title to all other properties owned by them that are material to the
business of the Company, in each case, free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances except
such as (i) are described in the Prospectus (including the financial statements
and the footnotes thereto) or (ii) do not, singly or in the aggregate,
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company or any
of the Subsidiaries. All of the leases and subleases material to the business of
the Company and the Subsidiaries, taken as a whole, and under which the Company
or any of the Subsidiaries holds properties described in the Disclosure Package
and Prospectus, are in full force and effect, and neither the Company nor any
Subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any Subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(v) Neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation,
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condition, covenant or instrument, in each case that is material and to which it
is a party or bound or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such Subsidiary or any of its properties, as
applicable.
(w) KPMG LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules filed
with the Commission as part of the Registration Statement and included in the
Disclosure Package and the Prospectus, are independent public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(x) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance by the Company or sale by the Company of the
Securities.
(y) Each of the Company and the Subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be filed by
it or has requested extensions thereof (except in any case in which the failure
so to file would not have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Prospectus) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or that, individually or in the aggregate, would not have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus.
(z) No labor problem or dispute with the employees of the
Company or any of the Subsidiaries exists or is, to the knowledge of the
Company, threatened or imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or the Subsidiaries'
principal suppliers, contractors or customers, that could have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus.
(aa) The Company and each of the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance insuring the Company or any of the
Subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company and the Subsidiaries are in
compliance with the terms of such policies in all material respects; and there
are no claims by the Company or any of the Subsidiaries under any such policy as
to which any insurance company is denying liability or defending under a
reservation of rights clause that would reasonably be expected to have a
Material Adverse Effect; neither the Company nor any such Subsidiary has been
refused any insurance coverage sought or applied for that would reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance
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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, except as set forth in or contemplated
in the Disclosure Package and the Prospectus.
(bb) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or any
other Subsidiary of the Company, except as described in or contemplated by the
Disclosure Package and the Prospectus and except for ActivBiotics (Canada) Inc.
pursuant to that certain Shareholders Agreement, dated March 22, 2005, by and
among Canadian Medical Discoveries Fund Inc., The Vengrowth Advance Life
Sciences Fund Inc., the Company and ActivBiotics (Canada) Inc., and except for
Metaphore Pharmaceuticals, Inc. pursuant to that certain Guaranty and Security
Agreement, dated June 16, 2006, by and between Metaphore Pharmaceuticals, Inc.,
and Horizon Technology Funding Company LLC.
(cc) The Company and the Subsidiaries possess all registrations,
licenses, certificates, permits, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct their
respective businesses as described in the Disclosure Package and Prospectus,
including without limitation, all such registrations, licenses, certificates,
permits, approvals, consents and other authorizations required by the U.S. Food
and Drug Administration (the "FDA") or any other federal, state, local or
foreign agencies or bodies engaged in the regulation of clinical trials and
pharmaceuticals. With respect to Government Licenses other than FDA-related
Government Licenses (the "Non-FDA Related Licenses"), neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the
revocation, withdrawal, suspension or modification of any such Non-FDA Related
License which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect, except as
described in the Disclosure Package and Prospectus. With respect to FDA related
Government Licenses, neither the Company nor any such Subsidiary has received
any notice of proceedings relating to the revocation, withdrawal, suspension or
modification of any such Government License. The Company and the Subsidiaries
are in compliance in all material respects with the requirements of all such
Governmental Licenses. To the knowledge of the Company, all of the Non-FDA
Related Governmental Licenses are valid and in full force and effect. All of the
FDA related Governmental Licenses are valid and in full force and effect. The
Company has no reason to believe that any party granting any such Governmental
Licenses is considering modifying, suspending, withdrawing or revoking the same
in any material respect. Neither the Company nor any Subsidiary has failed to
submit to the FDA an Investigational New Drug Application for a clinical trial
it is conducting or sponsoring; all such submissions were in compliance in all
material respects with applicable laws when submitted, and no material
deficiencies have been asserted by the FDA with respect to any such submissions.
(dd) The Company and each of the 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
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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.
(ee) The Company has not taken, directly or indirectly, any
action designed to or that would constitute 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 Securities.
(ff) The Company and the Subsidiaries (i) are 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 and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability under any Environmental
Laws, except in each case where non-compliance with Environmental Laws, or
failure to receive required permits, licenses or approvals, would not, singly or
in the aggregate, have a Material Adverse Effect. Except as set forth in the
Disclosure Package and the Prospectus, neither the Company nor any of the
Subsidiaries has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended.
(gg) There are no 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), which would, singly or in the aggregate, have a
Material Adverse Effect.
(hh) Except as set forth in the Disclosure Package and the
Prospectus, neither the Company nor any of the Subsidiaries is subject to any
pending or, to the knowledge of the Company, threatened proceeding associated
with any Environmental Laws to which the government is a party and which is
reasonably likely to result in monetary sanctions of $100,000 or more.
(ii) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the regulations and published interpretations thereunder with
respect to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and the
Subsidiaries are eligible to participate and each such plan is in compliance in
all material respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. The Company and the Subsidiaries have
not incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any such
plan under Title IV of ERISA.
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(jj) There is and has been no failure on the part of the Company
and any of the Company's directors or officers, in their capacities as such, to
comply in all material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 and the rules and regulations promulgated in connection therewith (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(kk) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of the Subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the
FCPA, including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, the Subsidiaries
and, to the knowledge of the Company, their affiliates have conducted their
businesses in compliance in all material respects with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance therewith.
(ll) The operations of the Company and the Subsidiaries are and
have been conducted at all times in compliance in all material respects with
applicable financial record-keeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the "Money Laundering Laws")
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of the
Subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(mm) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of the Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(nn) Except as disclosed in the Disclosure Package and the
Prospectus, neither the Company nor any Subsidiary (i) has any material lending
or other relationship with any bank or lending affiliate of any Representative
and (ii) intends to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of any
Representative.
(oo) Any statistical and market-related data included in the
Disclosure Package or the Prospectus are based on or derived from sources that
the Company believes to be
10
reliable and accurate, and the Company has obtained the written consent to the
use of such data from such sources to the extent required.
(pp) The Company and the Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent applications,
trade and service marks, trade and service ▇▇▇▇ registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the "Intellectual Property") that is
material to the Company's and the Subsidiaries' businesses as now conducted or
as proposed in the Disclosure Package and the Prospectus to be conducted. Except
as set forth in the Preliminary Prospectus and the Prospectus under the captions
"Risk Factors -- If we fail to comply with our obligations in our intellectual
property license agreements, or if we fail to meet any development milestones
specified in such licenses, we could lose license rights that are important to
our business." and "Business -- Intellectual Property," (i) no third party,
including without limitation any academic or governmental organization,
possesses rights to any such Intellectual Property; (ii) neither the Company nor
any Subsidiary is obligated to pay a royalty, grant a license, or provide other
consideration to any third party in connection with any such Intellectual
Property; (iii) to the knowledge of the Company, there is no infringement by
third parties of any such Intellectual Property; (iv) there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding or claim by
others challenging the Company's or any Subsidiary's rights in or to any such
Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; (v) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such
claim; (vi) there is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others, and the Company is unaware of any other
fact which would form a reasonable basis for any such claim; (vii) there is no
U.S. patent that contains claims that dominate or may dominate any Intellectual
Property described in the Disclosure Package and the Prospectus as being owned
by or licensed to the Company or any Subsidiary or that interferes with the
issued or pending claims of any such Intellectual Property; and (viii) there is
no prior art of which the Company is aware that may render any of the material
U.S. patent rights owned by or licensed to the Company or a Subsidiary invalid
or any U.S. patent application held by the Company or a Subsidiary unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office (the
"PTO"). The statements contained in the Preliminary Prospectus and the
Prospectus under the captions "Risk Factors -- Risks Related to Our Intellectual
Property" and "Business -- Intellectual Property," insofar as such statements
summarize legal matters, agreements, documents, or proceedings discussed
therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(qq) The Company and the Subsidiaries have duly and properly
filed or caused to be filed with the PTO and applicable foreign and
international patent authorities all patent applications owned by the Company or
any of the Subsidiaries (the "Company Patent Applications"). To the knowledge of
the Company, the Company and the Subsidiaries have complied with the PTO's duty
of candor and good faith for the Company Patent Applications and have made no
misrepresentation in the Company Patent Applications. Neither the Company nor
any Subsidiary is aware of any information material to a determination of
patentability
11
regarding the Company Patent Applications not called to the attention of the PTO
or any similar foreign authority requiring such disclosure. The Company has no
knowledge of any information which would preclude the Company or a Subsidiary
from having clear title to the Company Patent Applications.
(rr) With respect to each agreement governing rights in and to
any Intellectual Property licensed by or licensed to the Company or any of the
Subsidiaries and each other agreement material to the business of the Company
and the Subsidiaries, (i) such agreement has been accurately described in the
Prospectus, (ii) such agreement is valid and binding and in full force and
effect against the Company or the Subsidiary that is party to such agreement,
and, to the knowledge of the Company, each other party thereto; (iii) none of
the Company or the Subsidiaries has received any notice of termination or
cancellation under such agreement, which notice has not been withdrawn, received
any notice of breach or default under such agreement, which breach has not been
cured, or granted to any third party any rights, adverse or otherwise, under
such agreement that would constitute a breach of such agreement; and (iv) none
of the Company, any of the Subsidiaries or, to the Company's knowledge, any
other party to such agreement, is in breach or default thereof, and no event has
occurred that, with notice or lapse of time, would constitute such a breach or
default or permit termination, modification or acceleration under such
agreement.
(ss) The Company and the Subsidiaries have operated and currently
are in compliance in all material respects with all applicable rules and
regulations of the FDA or any other federal, state, local or foreign
governmental body exercising comparable authority. The tests and preclinical and
clinical studies conducted by or, to the Company's knowledge, on behalf of the
Company and the Subsidiaries that are described in the Disclosure Package and
the Prospectus were and, if still pending, are being, conducted in accordance
with, (i) if applicable, the protocols submitted to the FDA or any foreign
governmental body exercising comparable authority, (ii) procedures and controls
pursuant to, if applicable, accepted professional and scientific standards, and
(iii) all applicable laws and regulations; the descriptions of the tests and
preclinical and clinical studies, and results thereof, conducted by or, to the
Company's knowledge, on behalf of the Company and the Subsidiaries contained in
the Registration Statement and the Prospectus are accurate and complete; neither
the Company nor any Subsidiary is aware of any other trials, studies or tests,
the results of which reasonably call into question the results described or
referred to in the Registration Statement and the Prospectus; and neither the
Company nor any Subsidiary has received any written notice or correspondence
from the FDA or any foreign, state or local governmental body exercising
comparable authority requiring the termination, suspension, or clinical hold of
any clinical studies, or such written notice or correspondence from any
Institutional Review Board or comparable authority requiring the termination or
suspension of a clinical study, conducted by or on behalf of the Company and the
Subsidiaries.
(tt) The Company, the Subsidiaries and, to the Company's
knowledge, others who perform services on the Company's and the Subsidiaries'
behalf have been and are in compliance with all applicable federal, state, local
and foreign laws, rules, regulations, standards, orders and decrees governing
their respective businesses, including without limitation, all regulations
promulgated by the FDA or any other federal, state, local or foreign agencies or
bodies engaged in the regulation of pharmaceuticals, except where noncompliance
would not,
12
singly or in the aggregate, have a Material Adverse Effect; and neither the
Company nor any Subsidiary has received any notice citing action or inaction by
the Company, a Subsidiary or others who perform services on the Company's and
the Subsidiaries' behalf that would constitute non-compliance with any
applicable federal, state, local or foreign laws, rules, regulations or
standards, except where noncompliance would not, singly or in the aggregate,
have a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $ per share, the amount of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
Option Securities at the same purchase price per share as the Underwriters shall
pay for the Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriters.
Said option may be exercised in whole or in part at any time on or before the
30th day after the date of the Prospectus upon written or telegraphic notice by
the Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the option
and the Settlement Date. The maximum number of Option Securities to be sold by
the Company is [___]. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on , 2006,
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by the Representatives and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Securities being sold by the Company
to or upon the order of the Company by wire transfer payable in same-day funds
to the accounts specified by the Company. Delivery of the Underwritten
Securities and the
13
Option Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on
the date specified by the Representatives (which shall be within three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to the accounts specified by the Company. If
settlement for the Option Securities occurs after the Closing Date, the Company
will deliver to the Representatives on the Settlement Date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. AGREEMENTS.
(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause any amendment
of the Registration Statement to become effective as promptly as practicable.
Prior to the termination of the offering of the Securities, the Company will not
file any amendment to the Registration Statement or supplement to the Prospectus
or any Rule 462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the Commission,
(2) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, (3) of
any request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Prospectus or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice that would prevent its use or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose.
14
The Company will use its best efforts to prevent the issuance of any such stop
order or notice or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time, including any time when a prospectus
relating to the Securities is required to be delivered under the Act (including
in circumstances where such requirement may be satisfied pursuant to Rule 172),
any event or development occurs as a result of which either the Disclosure
Package or the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances then prevailing or
under which they were made, as the case may be, not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Prospectus to
comply with the Act or the rules thereunder, the Company promptly will (1)
notify the Representatives of any such event or development; (2) prepare and, if
required, file with the Commission, subject to the second sentence of Section
5(i)(a) or Section 5(iii), as applicable, an amendment or supplement or Issuer
Free Writing Prospectus which will correct such statement or omission or effect
such compliance; and (3) supply any amended or supplemented Prospectus or any
such Issuer Free Writing Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and the Subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required (including in circumstances where such
requirement may be satisfied pursuant to Rule 172) by the Act, as many copies of
each Preliminary Prospectus, the Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may reasonably
request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; PROVIDED that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of
the Representatives, offer, sell, contract to sell, pledge, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, make any short sale or otherwise dispose of
(or enter into any swap, hedging or other transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any
15
affiliate of the Company) or make any demand for, require any notice of or
exercise any right with respect to the registration of, directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act with respect to, any shares of
capital stock of the Company or any securities convertible into, or exercisable
or exchangeable for such capital stock, or publicly announce an intention to
effect any such transaction, for a period of 180 days after the date of this
Agreement. The foregoing sentence shall not apply to (i) the Securities to be
sold hereunder, (ii) any shares of Common Stock issued pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time or to be in effect on the Closing Date
as described in the Disclosure Package and the Prospectus and (iii) any shares
of Common Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time. Notwithstanding the foregoing, if
(1) during the last 17 days of the 180-day lock-up period, the Company issues an
earning release or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the 180-day period, the Company
announces an intention to release earnings information or becomes aware that
material news or a material event will occur during the 16-day period beginning
on the last day of the 180-day lock-up period, then in each case the initial
180-day lock-up period shall end on and include the 18th day following the date
of such release or the occurrence of the material news or material event, as
applicable. The Company will promptly notify the Representatives of any such
earnings information, news or event that may give rise to an extension of the
180-day lock-up period.
(g) The Company will comply in all material respects with all
applicable securities and other laws, rules and regulations, including, without
limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and use its best efforts to cause the
Company's directors and officers, in their capacities as such, to comply in all
material respects with such laws, rules and regulations, including, without
limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(h) The Company will not take, directly or indirectly, any
action designed to or that would constitute 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 Securities.
(i) The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq Global Market.
(j) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus under "Use
of Proceeds."
(ii) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing with
the Commission of the Registration Statement (including financial statements and
exhibits thereto), each Issuer Free Writing Prospectus, each Preliminary
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Issuer Free Writing Prospectus, each Preliminary
Prospectus, the Prospectus,
16
and all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the inclusion of the
Securities on the Nasdaq Global Market; (vi) any registration or qualification
of the Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the NASD (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses incident
to the performance by the Company of its obligations hereunder.
(iii) The Company represents that it has not made, and agrees that,
unless it obtains the prior written consent of the Representatives, it will not
make, any offer relating to the Securities that constitutes or would constitute
an Issuer Free Writing Prospectus or a Free Writing Prospectus or a portion
thereof required to be filed by the Company with the Commission or retained by
the Company under Rule 433 of the Act; provided that the prior written consent
of the Representatives hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Schedule II hereto and any Bona Fide
Electronic Road Show. Any such free writing prospectus consented to by the
Representatives is hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company represents and agrees that (i) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, and (ii) has complied and will comply, as the case may
be, with the requirements of Rules 164 and 433 of the Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any Settlement Date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the Act. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in the manner and within the time frame required by Rule 424(b) without reliance
on Rule 424(b)(8) or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements of
Rule 430A. Any required filing of each Issuer Free Writing Prospectus pursuant
17
to Rule 433 has been made in the manner and within the time period required by
Rule 433(d). No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) The Company shall have requested and caused each of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇ ▇▇▇▇▇▇ & Harcourt LLP,
Canadian counsel for the Company, to have furnished to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives, to the
effect set forth in Exhibit A-1 and Exhibit A-2, respectively, hereto and to
such further effect as counsel the Underwriters may reasonably request.
(c) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, patent counsel for the Company, to have furnished to the Representatives
its opinion, dated the Closing Date and addressed to the Representatives, to the
effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, patent counsel for the Company, to have furnished to the
Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(e) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇
LLP, regulatory counsel for the Company, to have furnished to the
Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect set forth in Exhibit D hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(f) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration Statement,
the Disclosure Package, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the principal executive officer and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, the Disclosure Package and any
amendment or supplement thereto and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date, and the Company has
complied with all the
18
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto).
(h) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives its letters, at the Execution Time and at the
Closing Date, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, to the effect
set forth in Exhibit E, respectively, hereto and to such further effect as
counsel to the Underwriters may reasonably request.
(i) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change specified in the letter or letters
referred to in paragraph (h) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company and
the Subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(j) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(k) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit F hereto from
each officer and director of the Company and the stockholders listed on Schedule
III hereto addressed to the Representatives.
(l) The Securities shall have been approved for inclusion in the
Nasdaq Global Market, subject only to official notice of issuance.
(m) The NASD has confirmed that it has not raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
19
(n) (i) Canadian Medical Discoveries Fund Inc. and The Vengrowth
Advance Life Sciences Fund Inc. shall have exercised their Put Rights, as
described in that certain Put and Support Agreement, dated March 22, 2005, among
the Company, ActivBiotics (Canada) Inc., Canadian Medical Discoveries Fund Inc.
and The Vengrowth Advance Life Sciences Fund Inc., (ii) immediately prior to the
Closing Date and contingent upon the closing of the purchase of the Underwritten
Securities, the Company shall have issued 1,945,524 shares of series C-1
redeemable convertible preferred stock of the Company to Canadian Medical
Discoveries Fund Inc. and The Vengrowth Advance Life Sciences Fund Inc., and, as
a result of such exercise and issuance, the Company shall own all of the
outstanding shares of capital stock of ActivBiotics (Canada) Inc. free and clear
of any perfected security interest or any other security interests, claims,
liens or encumbrances, other than the security interest of Horizon Technology
Funding Company LLC pursuant to the Venture Loan and Security Agreement dated as
of June 16, 2006, and (iii) concurrently with the closing of the purchase of the
Underwritten Securities, the 1,945,524 shares of series C-1 redeemable
convertible preferred stock shall have converted into 2,159,824 shares of common
stock of the Company.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representatives on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged
20
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Prospectus,
the Prospectus, or any Issuer Free Writing Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person, if any, who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have. The Company acknowledges that (i) the
statements set forth in the last paragraph of the cover page regarding delivery
of the Securities and (ii) under the heading "Underwriters," (A) the list of
underwriters and their respective participation in the sale of the Securities,
(B) the sentences related to concessions and reallowances and (C) the paragraph
related to stabilization and syndicate covering transactions in any Preliminary
Prospectus, the Prospectus and any Issuer Free Writing Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus, the Prospectus and any
Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with
all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a
21
conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may
be legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (other than local counsel), reasonably approved
by the indemnifying party (or by the Representatives in the case of Section
8(b)), representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, which shall not be withheld unreasonably, but if settled with such
consent or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense 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 fees and expenses
of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 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, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (x) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding and (y) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in Section 8 is for any
reason unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the offering of the Securities pursuant to this
22
Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, 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
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, and the total underwriting discount received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus bear to the
aggregate initial public offering price of the Securities as set forth on such
cover. 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 any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact or any such inaccurate or
alleged inaccurate representation or warranty relates to information supplied by
the Company, on the one hand, or the Underwriters, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and the Underwriters agree that it would not be just and
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 this Section 8.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Securities underwritten by
it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 8 are several, and not joint, in proportion to their respective
underwriting commitments as set forth opposite their names in Schedule I. For
purposes of this Section 8, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the Act and the Exchange Act
shall have the same rights to contribution as the Company.
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
23
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in any securities of the Company shall have been suspended or
limited by the Commission or the Nasdaq Global Market or trading in securities
generally on the New York Stock Exchange or the Nasdaq Global Market shall have
been suspended or limited or minimum or maximum prices shall have been
established on any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, (ii) a general banking
moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities, terrorist attack, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto) or to enforce contracts for the sale of securities or (iv) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus or Disclosure Package,
any material adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter, the Company, any Subsidiary or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
24
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel
and confirmed to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; or, if sent to
the Company, will be mailed, delivered or telefaxed to ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and confirmed to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and Meerie ▇. ▇▇▇▇▇.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. NO ADVISORY OR FIDUCIARY DUTY. The Company acknowledges and agrees
that: (i) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the offering price of the Securities and any
related discounts and commissions, is an arm's-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other
hand, and the Company is capable of evaluating and understanding and understand
and accept the terms, risks and conditions of the transactions contemplated by
this Agreement; (ii) in connection with each transaction contemplated hereby and
the process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary of
the Company or its affiliates, stockholders, creditors or employees or any other
party; (iii) no Underwriter has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Company with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company on
other matters) and no Underwriter has any obligation to the Company with respect
to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Company and that the several Underwriters have no
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the several Underwriters, or any of
them, with respect to the subject matter hereof. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the several Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
15. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
25
16. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
18. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Bona Fide Electronic Road Show" has the meaning set forth in Section
1(d).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Closing Date" has the meaning set forth in Section 3.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Preliminary Prospectus, if
any, as amended and supplemented, (ii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule II hereto, (iii) any other
free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package, and (iv) the
information included on Schedule IV hereto.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Environmental Laws" has the meaning set forth in Section 1(ff).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"FCPA" shall mean the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations promulgated thereunder.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405.
26
"Initial Sale Time" shall mean ___:00 [a/p]m (Eastern time) on the
date of this Agreement.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Material Adverse Effect" has the meaning set forth in Section 1(s).
"Nasdaq Global Market" has the meaning set forth in Section 1(j).
"NASD" has the meaning set forth in Section 1(k).
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 158," "Rule 164," "Rule 172," "Rule 405," "Rule 424," "Rule
430A," "Rule 433" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" has the meaning set forth in Section 1(jj).
"Settlement Date" has the meaning set forth in Section 1(c).
"Subsidiary" has the meaning set forth in Section 1(g).
27
The terms "Disclosure Package," "Preliminary Prospectus," "Prospectus"
and "Registration Statement" shall include the documents, if any,
incorporated by reference therein.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
ACTIVBIOTICS, INC.
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
By: HSBC SECURITIES (USA) INC.
By:
----------------------------
Name:
Title:
By: ▇▇▇▇▇▇▇ & COMPANY, LLC
By:
----------------------------
Name:
Title:
By: BMO CAPITAL MARKETS CORP.
By:
----------------------------
Name:
Title:
By: SUSQUEHANNA FINANCIAL GROUP, LLLP
By:
----------------------------
Name:
Title:
For themselves and the other several Underwriters
named in Schedule I to the foregoing Agreement.
30
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
HSBC Securities (USA) Inc.
▇▇▇▇▇▇▇ & Company, LLC ............................
BMO Capital Markets Corp. .........................
Susquehanna Financial Group, LLLP .................
------------
Total ........................................
============
1
SCHEDULE II
Schedule of Issuer Free Writing Prospectuses included in the Disclosure Package
1
SCHEDULE III
Stockholders Signing Lock-up Agreements
1
SCHEDULE IV
Price per share: $
Offering size: [__] shares or [___] shares if the Underwriters exercise their
over-allotment option in full
1