EXHIBIT 1.1
Nastech Pharmaceutical Company Inc.
1,725,000 Shares
Common Stock
($0.006 par value)
New York, New York
August 25, 2005
▇▇▇▇▇▇▇ & Company, LLC
SunTrust Capital Markets, Inc.
Delafield ▇▇▇▇▇▇▇▇▇, Inc.
As Representatives of the several Underwriters,
c/o Needham & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Nastech Pharmaceutical Company Inc., a corporation organized under
the laws 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, 1,725,000 shares of Common
Stock, $0.006 par value ("Common Stock") of the Company (said shares to be
issued and sold by the Company being hereinafter called the "Securities"). To
the extent there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 that were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 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 meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (file number 333-119429) on Form S-3, including a related basic
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 Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one
or more of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in
Underwriting Agreement - Page 2
accordance with Rules 430A and 424(b), (2) prior to the Effective Date of
such registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), 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 Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, 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 Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) No order suspending the effectiveness of the Registration
Statement (including any related registration statement filed pursuant to
Rule 462(b) under the Act) or any post-effective amendment thereto has
been issued, and no proceeding for that purpose has been initiated or
threatened by the Commission. On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein), if such date is not the Closing Date (a "settlement
date"), the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act and the
Exchange Act and the respective 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; the Preliminary Final Prospectus
does 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 Final 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 Final 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 Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) Atossa HealthCare, Inc. is the only subsidiary of the Company
and the Company does not own or control, directly or indirectly, any other
corporation, association or other entity.
(d) Each of the Company and its subsidiary 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 Final Prospectus. Each of the Company and its subsidiary 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 where the failure to be so qualified in any such jurisdiction could
not reasonably be
Underwriting Agreement - Page 3
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties, whether or not
arising from transactions in the ordinary course of business, of the
Company and its subsidiary taken as a whole (a "Material Adverse Effect").
The Company and its subsidiary are not, and at the Closing Date, will not
be, engaged in any discussions or a party to any agreement or
understanding, written or oral, regarding the acquisition of an interest
in any corporation, firm, partnership, joint venture, association or other
entity where such discussions, agreements or understandings would require
amendment to the Registration Statement pursuant to applicable securities
laws.
(e) All the outstanding shares of capital stock of the subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable and were issued in compliance with all applicable state and
federal securities laws, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the subsidiary are
owned by the Company free and clear of any perfected security interest or
any other security interests, claims, liens or encumbrances.
(f) The Company's authorized equity capitalization is as set forth
in the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized and, when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will be fully paid and non assessable; the certificates for the Securities
are in valid and sufficient form; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set forth in the
Final 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 are outstanding. No further
approval or authority of the stockholders of the Company or the Company's
board of directors is required for the issuance of the Securities
contemplated herein.
(g) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described
or filed as required; and the statements in the Final Prospectus under the
headings "Summary -- Business," "Risk Factors -- We are dependent on our
collaborative arrangements with third parties for a substantial portion of
our revenue, and our development and commercialization activities may be
delayed or reduced if we fail to negotiate or maintain successful
collaborative arrangements," "-- Clinical trials of our product candidates
are expensive and time-consuming, and the results of these trials are
uncertain," "-- We are subject to extensive government regulation
including the requirement of approval before our products may be
marketed," "-- If we are unable to adequately protect our proprietary
technology from legal challenges, infringement or alternative
technologies, this inability will hurt our competitive position and
negatively impact our operating results," "Business -- Merck Partnership",
"-- Independent Product Development", "-- Par Pharmaceutical Partnership",
"-- Product Portfolio Expansion Strategy", "-- Strategic Collaborations,"
"-- Licenses, Patents and Proprietary Rights," "-- Government Regulations"
and "Material United States Federal Tax Considerations for Non-U.S.
Holders of Common Stock," insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries in all material aspects of such legal matters,
agreements, documents or proceedings.
(h) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company
Underwriting Agreement - Page 4
and constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(i) 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 Final Prospectus, will not be, an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with 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 Final Prospectus.
(k) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment 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 its subsidiary pursuant to, (i) the
charter or by-laws of the Company or its subsidiary, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiary is a party or bound or
to which its or its subsidiary's property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
the Company or its subsidiary of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or its subsidiary or any of its or
its subsidiary's properties, except in the case of clauses (ii) and (iii),
any breaches or violations, which singly or in aggregate, could not
reasonably be expected to have (1) a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (2) a Material Adverse Effect.
(l) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(m) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiary incorporated by reference
in the Final Prospectus and the Registration Statement present fairly in
all material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated,
comply as to form 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). No other financial statements or
schedules of the Company are required by the Act, the Exchange Act and the
applicable rules and regulations promulgated under each of the foregoing.
The selected financial data set forth under the caption "Summary
Consolidated Financial Data" in the Final Prospectus and Registration
Statement fairly present, on the basis stated in the Final Prospectus and
the Registration Statement, the information included therein, and have
been compiled on a basis consistent with the audited financial statements
presented in the Registration Statement.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its subsidiary or the Company's or its subsidiary's property is
pending or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this
Underwriting Agreement - Page 5
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 incorporated by reference into the Final
Prospectus (exclusive of any supplement thereto).
(o) Each of the Company and its subsidiary has good and marketable
title to all properties and assets described in the Final Prospectus as
owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Final Prospectus and
except where the failure to be so free and clear of such liens, charges,
encumbrances or restrictions would not, singly or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Each of the
Company and its subsidiary have valid, subsisting and enforceable leases
for the properties described in the Final Prospectus as leased by them.
Each of the Company and its subsidiary owns or leases all such properties
as are necessary to the conduct of their respective operations as
presently conducted or as proposed to be conducted.
(p) Neither the Company nor its subsidiary is in violation or
default of (i) any provision of its charter or by laws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or 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 its subsidiary or any of their respective properties, as applicable,
except in the case of clauses (ii) and (iii), any breaches or violations,
which, singly or in the aggregate, could not reasonably be expected to
have Material Adverse Effect.
(q) KPMG LLP, who have certified certain financial statements of the
Company and its consolidated subsidiary and delivered its report with
respect to the audited consolidated financial statements and schedules
incorporated by reference in the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder (including,
without limitation, Rule 3600T of the Public Company Accounting Oversight
Board).
(r) 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.
(s) Each of the Company and its subsidiary has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof, except in any case in which the failure so
to file would not have a Material Adverse Effect, 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 would not have a Material Adverse Effect.
(t) No labor problem or dispute with the employees of the Company or
its subsidiary exists or to the knowledge of the Company is threatened or
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of its or its subsidiary's principal
suppliers, contractors or customers, that could have a Material Adverse
Effect.
(u) The Company and its subsidiary are each insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and
Underwriting Agreement - Page 6
customary in the businesses in which they are engaged; all policies of
insurance insuring the Company or its subsidiary or their respective
businesses, assets, employees, officers and directors are in full force
and effect, except where any failure to be in full force and effect could
not reasonably be expected to have a Material Adverse Effect; the Company
and its subsidiary are each in compliance with the terms of such policies
and instruments in all material respects; and there are no claims by the
Company or its subsidiary under any such policy or instrument as to which
any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor its subsidiary has
been refused any insurance coverage sought or applied for; and neither the
Company nor its subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
Material Adverse Effect.
(v) The subsidiary is not prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on
its 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.
(w) The Company and its subsidiary possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor its subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(x) The Company and its subsidiary each maintain (1) a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (2)
disclosure controls and procedures (as defined in Rule 13a-14(c)) under
the Exchange Act.
(y) The Company has not distributed and will not distribute prior to
the later of (i) the Closing Date and (ii) completion of the distribution
of the Securities, any offering material in connection with the offering
and sale of the Securities other than any preliminary prospectuses, the
Final Prospectus, the Registration Statement and other materials, if any,
permitted by the Act and the rules and regulations promulgated thereunder.
Neither the Company nor any of its directors, officers or controlling
persons has 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 Act, 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.
(z) The Company and its subsidiary are (i) 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
Underwriting Agreement - Page 7
under any Environmental Law, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, have
a Material Adverse Effect. Except as set forth in the Final Prospectus,
neither the Company nor its subsidiary has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(aa) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiary, in the course
of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a Material Adverse Effect.
(bb) The minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder ("ERISA"), has been satisfied by
each "pension plan" (as defined in Section 3(2) of ERISA) which has been
established or maintained by the Company and/or its subsidiary, and the
trust forming part of each such plan which is intended to be qualified
under Section 401 of the Code is so qualified; each of the Company and its
subsidiary has fulfilled its obligations, if any, under Section 515 of
ERISA; neither the Company nor its subsidiary maintains or is required to
contribute to a "welfare plan" (as defined in Section 3(1) of ERISA) that
provides retiree or other post-employment welfare benefits or insurance
coverage (except as may be required by the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, or other similar applicable
statute); each pension plan and welfare plan established or maintained by
the Company and/or its subsidiary is in compliance in all material
respects with the currently applicable provisions of ERISA; and neither
the Company nor its subsidiary has incurred or could reasonably be
expected to incur any withdrawal liability under Section 4201 of ERISA,
any liability under Section 4062, 4063, or 4064 of ERISA, or any other
liability under Title IV of ERISA.
(cc) There is and has been no failure on the part of the Company and
to the knowledge of the Company, on the part of any of the Company's
directors or officers, in their capacities as such, to comply in all
material respects with any provision of the Sarbanes Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
"Sarbanes Oxley Act"), including, without limitation, Section 402 thereof
(related to loans) and Sections 302 and 906 thereof (related to
certifications).
(dd) Neither the Company nor its subsidiary nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the
Company or its subsidiary 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 and its subsidiary and, to the knowledge of the Company,
its affiliates have conducted their businesses in compliance with the
FCPA.
Underwriting Agreement - Page 8
(ee) The operations of the Company and its subsidiary are and have
been conducted at all times in compliance with applicable financial
recordkeeping 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"), except where a failure to comply with such
requirements, statutes, rules, regulations or guidelines could not
reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect, and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the
Company or its subsidiary with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(ff) Neither the Company nor its subsidiary nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the
Company or its subsidiary 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.
(gg) The Company and its subsidiary own, possess, license or have
other rights to use, on reasonable terms, all patents, patent rights,
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") necessary for the conduct of the Company's business as now
conducted or as proposed to be conducted in the Final Prospectus, except
where the failure to own, possess, license or have other rights to use
such Intellectual Property could not reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Final Prospectus, the
Company has not received any notice of, and has no knowledge of, any
infringement of or conflict with asserted rights of the Company by others
with respect to any patent, patent rights, inventions, trade secrets,
know-how, trademarks, service marks, trade names or copyrights; and the
Company has not received any notice of, and has no knowledge of, any
infringement of or conflict with asserted rights of others by the Company
in the conduct of its business as now or proposed to be conducted as
described in the Final Prospectus with respect to any patent, patent
rights, inventions, trade secrets, know-how, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, might have a
Material Adverse Effect. There is no claim being made against the Company
regarding patents, patent rights or licenses, inventions, collaborative
research, trade secrets, know-how, trademarks, service marks, trade names
or copyrights other than as disclosed in the Final Prospectus. The Company
does not in the conduct of its business as now or proposed to be conducted
as described in the Final Prospectus infringe or conflict with any right
or patent of any third party, or any discovery, invention, product or
process known to the Company, which such infringement or conflict is
reasonably likely to result in a Material Adverse Effect.
(hh) Except as disclosed in the Registration Statement and the Final
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of ▇▇▇▇▇▇▇ & Company, LLC
or any other Underwriter and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of ▇▇▇▇▇▇▇ & Company, LLC or any
other Underwriter.
Underwriting Agreement - Page 9
(ii) Except as set forth in the Final Prospectus, the studies, tests
and preclinical and clinical trials conducted by or on behalf of the
Company that are described in the Final Prospectus were and, if still
pending, are being conducted in all material respects in accordance with
experimental protocols, procedures and controls pursuant to accepted
professional scientific standards and all applicable local, state and
federal and foreign laws, rules, regulations and guidances, including, but
not limited to, the Federal Food, Drug and Cosmetic Act and implementing
regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 312; the Company is not
aware of any studies, tests or trials the results of which reasonably call
into question the clinical trial results described or referred to in the
Prospectus when viewed in the context in which such results are described
and the clinical state of development; and the Company has not received
any notices or correspondence from the U.S. Food and Drug Administration
(the "FDA") or any foreign, state or local governmental body exercising
comparable authority requiring the termination, suspension or material
modification of any studies, tests or preclinical or clinical trials
conducted by or on behalf of the Company.
(jj) Each of the Exclusive Development, Commercialization and
License Agreement ("Merck License Agreement") by and between Merck & Co.,
Inc. ("Merck") and the Company, effective as of September 24, 2004, the
Supply Agreement ("Merck Supply Agreement") by and between Merck and the
Company, effective as of September 24, 2004 and the License and Supply
Agreement (the "Par License Agreement") by and between Par Pharmaceutical,
Inc. and the Company, effective as of October 22, 2004 has been duly
authorized by all necessary corporate action of the Company, has been duly
executed and delivered by the Company and, to the Company's knowledge,
assuming the due authorization, execution and delivery by the other party
to such agreement, is a valid, binding and enforceable obligation of the
Company.
(kk) There are no business relationships or related-party
transactions involving the Company or any other person required to be
described in the Final Prospectus that have not been described as
required.
(ll) Neither the Company nor its subsidiary nor, to the Company's
knowledge, any employee or agent of the Company or its subsidiary has made
any contribution or other payment to (i) any official of or candidate for,
any federal, state or foreign office in violation of any law or of the
character required to be disclosed in the Final Prospectus or (ii) any
clinical researcher in violation of any federal, state or foreign law or
any rule of the FDA.
(mm) The Company satisfies the eligibility requirements in existence
prior to October 21, 1992 for the use of a registration statement on Form
S-3 for the offering of the Securities.
(nn) The Company is subject to and in compliance with the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act. The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act
and is listed on the Nasdaq National Market ("NNM"), and the Company has
taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or delisting
the Common Stock from the NNM, nor has the Company received any
notification that the Commission or the NNM is contemplating terminating
such registration or listing. The Company has filed an application to list
the Securities on the NNM, and has received notification that the listing
has been approved, subject to notice of issuance of the Securities.
(oo) The documents that are incorporated by reference in the Final
Prospectus or from which information is so incorporated by reference, when
they became or become effective or were or are filed with the Commission,
as the case may be, complied or will comply in all
Underwriting Agreement - Page 10
material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations promulgated under each of the
foregoing, as applicable; and any documents so filed and incorporated by
reference subsequent to the Effective Date shall, when they are filed with
the Commission, comply in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
promulgated under each of the foregoing, as applicable.
(pp) There is no document, contract, permit or instrument, affiliate
transaction or off-balance sheet transaction (including, without
limitation, any "variable interests" in "variable interest entities," as
such terms are defined in Financial Accounting Standards Board
Interpretation No. 46) of a character required to be described in the
Registration Statement or the Final Prospectus or to be filed as an
exhibit to the Registration Statement that is not described or filed as
required. All such contracts to which the Company or its subsidiary is a
party have been duly authorized, executed and delivered by the Company or
such subsidiary, constitute valid and binding agreements of the Company or
such subsidiary and are enforceable against and by the Company or such
subsidiary in accordance with the terms thereof.
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. 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 $12.75 per
share, the amount of the Securities set forth opposite such Underwriter's name
in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on August 30, 2005 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 agreement between 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 purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
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 Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic 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
Underwriting Agreement - Page 11
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 Final Prospectus
is otherwise required under Rule 424(b), the Company will cause the Final
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
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final 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, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) 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
Final Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) 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. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final 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 under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement that will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final 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 its subsidiary that will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, 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 by
the Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(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, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in
Underwriting Agreement - Page 12
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
▇▇▇▇▇▇▇ & Company, LLC, offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any 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 affiliate of the Company)
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, any other shares of Common Stock or any securities convertible into,
or exercisable, or exchangeable for, shares of Common Stock; or publicly
announce an intention to effect any such transaction, until the expiration
of the Lock-Up Period as set forth in Section 17, provided, however, that
(i) the Company may issue and sell Common Stock pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan of
the Company in effect at the Execution Time and (ii) the Company may issue
Common Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time.
(g) The Company will comply with all applicable securities and other
laws, rules and regulations, including, without limitation, the Sarbanes
Oxley Act, and use its best efforts to cause the Company's directors and
officers, in their capacities as such, to comply with such laws, rules and
regulations, including, without limitation, the provisions of the Sarbanes
Oxley Act.
(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 cause each of its officers, directors and
certain stockholders designated by the Representatives to furnish to the
Representatives a letter substantially in the form of Exhibit A hereto.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities 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) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of
Underwriting Agreement - Page 13
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and its only subsidiary, Atossa
HealthCare, Inc., 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 Final
Prospectus, and to the knowledge of such counsel 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.
(ii) all the outstanding shares of capital stock of its
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of its
subsidiary are owned by the Company free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, of any other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Final Prospectus; the Securities have been duly and
validly authorized, and, when issued and delivered to and paid for
by the Underwriters pursuant to this Agreement, will be fully paid
and nonassessable; the certificates for the Securities are in valid
and sufficient form; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set forth in
the Final 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 are
outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or its subsidiary or its or its subsidiary's property of
a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a character required
to be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements included or incorporated by
reference in the Final Prospectus under the headings "Material
United States Federal Tax Considerations for Non-U.S. Holders of
Common Stock" and " Description of Common Stock" insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries in
all material respects of such legal matters, agreements, documents
or proceedings;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the
Underwriting Agreement - Page 14
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and
the Registration Statement and the Final Prospectus (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective
rules thereunder; and such counsel has no reason to believe that on
the Effective Date or the date the Registration Statement was last
deemed amended the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of its date
and on the Closing Date included or includes any untrue statement of
a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion);
(vi) the Company has full corporate power and authority to
enter into this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company;
(vii) 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 Final Prospectus, will not be
an "investment company" or an "affiliated person" or, or "promoter"
or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or
order of any U.S. court or governmental agency or body is required
in connection with 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 U.S. jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters
in the manner contemplated in this Agreement and in the Final
Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment 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 its
subsidiary pursuant to, (i) the charter or by-laws of the Company or
its subsidiary, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument known to
such counsel to which the Company or its subsidiary is a party or
bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, or, to the knowledge of such
counsel, any judgment, order or decree applicable to the Company or
its subsidiary of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or its subsidiary or any of its or the subsidiary's
properties;
Underwriting Agreement - Page 15
(x) to the knowledge of such counsel, no holders of securities
of the Company have rights to the registration of such securities
under the Registration Statement; and
(xi) each of Merck License Agreement, Merck Supply Agreement
and Par License Agreement has been duly authorized by all necessary
corporate action of the Company and is a valid, binding and
enforceable obligation of the Company.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the General Corporation Law of the State of Delaware or the
Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Final Prospectus in this paragraph
(b) shall also include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇,
intellectual property counsel for the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that, to the knowledge of such counsel,
there is no pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or its property of a character required to be
disclosed in the Registration Statement, which is not adequately disclosed
in the Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required; and the statements included or
incorporated by reference in the Final Prospectus under the headings "Risk
Factors," "Business -- Merck Partnership", "-- Independent Product
Development", " -- Par Pharmaceutical Partnership", "-- Product Portfolio
Expansion Strategy", "-- Strategic Collaboration" and "Business --
Licenses, Patents and Proprietary Rights," insofar as such statements
summarize intellectual property legal matters, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
documents or proceedings.
(d) The Company shall have requested and caused Buc & ▇▇▇▇▇▇▇▇▇, FDA
regulatory counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the statements included in the Final Prospectus under the
headings "Risk Factors -- We are subject to extensive government
regulation including the requirement of approval before our products
may be marketed" and "Business -- Government Regulation," insofar as
such statements summarize applicable provisions of the FDCA, and
Public Health Service Act ("PHSA") and implementing regulations, are
correct in all material respects and do not omit to summarize
applicable provisions of the FDCA and the PHSA or the implementing
regulation necessary to make those statements not misleading; and
(ii) nothing has come to such counsel's attention that leads
such counsel to believe that the statements included in the Final
Prospectus under the headings "Risk Factors -- We are subject to
extensive government regulation including the requirement of
approval before our products may be marketed," "Business --
Government Regulation" and "Business -- Legal Proceedings" contain
any untrue statement of a material fact
Underwriting Agreement - Page 16
relating to FDA regulatory matters ("FDA Matters") or omit to state
any material fact relating to FDA Matters which is necessary to make
the statements therein not misleading in light of the circumstances
in which they were made.
(e) The Representatives shall have received from ▇▇▇▇▇▇▇ Procter
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 Final
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.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President 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 Final
Prospectus, any supplements to the Final Prospectus 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 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 or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiary,
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 Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters (which may refer to letters previously delivered to one or
more of the Representatives), dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the unaudited interim financial information of
the Company for the six-month period ended June 30, 2005, and as at June
30, 2005, in accordance with Statement on Auditing Standards No. 100, and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference
in the Registration Statement and the Final Prospectus and reported
on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related rules and regulations adopted by the Commission;
Underwriting Agreement - Page 170
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiary; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the six-month period
ended June 30, 2005, and as at June 30, 2005, incorporated by
reference in the Registration Statement and the Final Prospectus;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and audit committee of the
Company and its subsidiary; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiary as to transactions and
events subsequent to June 30, 2005, nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act
and with the related rules and regulations adopted by the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to June 30,
2005, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt or note payable of the Company and its
subsidiary or capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the
amounts shown on the June 30, 2005 consolidated balance sheet
included or incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period from
July 1, 2005 to such specified date there were any increases,
as compared with the corresponding period in 2004, in net loss
from operations or in total or per share amounts of net loss
of the Company and its subsidiary, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation
is not deemed necessary by the Representatives;
(3) the information included or incorporated by
reference in the Registration Statement and Final Prospectus
in response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiary) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration
Underwriting Agreement - Page 18
Statement, including the information set forth under the captions
"Summary Consolidated Financial Data" in the Final Prospectus, the
information included or incorporated by reference in Items 1, 2, 6,
7 and 11 of the Company's Annual Report on Form 10-K, incorporated
by reference in the Registration Statement and the Final Prospectus,
the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included
or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q, incorporated by reference in the Registration Statement
and the Final Prospectus and the information included in the
"Results of Operations and Financial Condition" included or
incorporated by reference in each of the Company's Current Reports
on Form 8-K dated March 2, 2005, May 9, 2005 and August 1, 2005,
incorporated by reference in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the Company
and its subsidiary, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) 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 Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or increase specified
in the letter or letters referred to in paragraph (g) 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 its subsidiary, 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 Final 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) and the Final
Prospectus (exclusive of any supplement thereto).
(i) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall have been
no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or its
subsidiary or its or its subsidiary's property is pending or, to the
knowledge of the Company, threatened that (1) 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 (2)
could reasonably be expected to have a Material Adverse Effect, except as
set forth in or incorporated by reference into the Final 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) The Securities shall have been listed and admitted and
authorized for trading on the NNM, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto
from each executive officer and director of the Company addressed to the
Representatives.
Underwriting Agreement - Page 19
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 ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. Whether or not the
transactions contemplated by this Agreement are consummated or this Agreement is
terminated, the Company will reimburse the Underwriters severally through
▇▇▇▇▇▇▇ & Company, LLC 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 shall indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the Act
or the Exchange Act from and 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 untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or
the Final 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, or arise out of or are
based in whole or in part on any inaccuracy in the representations and
warranties of the Company contained herein or any failure of the Company
to perform its obligations hereunder or under law in connection with the
transactions contemplated hereby, 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. The Company acknowledges that the statements set forth
in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" or "Plan of
Distribution", (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
Underwriting Agreement - Page 20
(b) Each Underwriter severally and not jointly shall indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company 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 which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph
of the cover page regarding delivery of the Securities and, under the
heading "Underwriting" or "Plan of Distribution", (i) the list of
Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Final Prospectus and the
Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary
Final Prospectus or the Final 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 the
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. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) 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
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood, however, that the Company
shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons, which firm shall be designated in writing by ▇▇▇▇▇▇▇
& Company, LLC. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such
Underwriting Agreement - Page 21
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company
on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), 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. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) In addition to its other obligations under paragraph (a) of this
Section 8, the Company hereby agrees to reimburse the Underwriters on a
quarterly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any claim, action,
investigation, inquiry or other proceeding arising out of or based upon,
in whole or in part, any statement or omission or alleged statement or
omission, or any inaccuracy in the representations and warranties of the
Company contained herein or failure of the Company to perform its or their
respective obligations hereunder or under law, all as described in
paragraph (a) of this Section 8, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations
under this paragraph (e) and the possibility that such payment might later
be held to be improper; provided, however, that, to the extent any such
payment is ultimately held to be improper, the persons receiving such
payments shall promptly refund them.
Underwriting Agreement - Page 22
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 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 Final 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 the Company's Common Stock shall have been suspended by
the Commission or the NNM or trading in securities generally on the New York
Stock Exchange or the NNM shall have been suspended or limited or minimum prices
shall have been established on either of such Exchange or the NNM, (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities or (iii) there shall have occurred any material adverse change in
the financial or securities markets in the United States or in political,
financial or economic conditions in the United States, any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis, the effect of which 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 Final Prospectus (exclusive of any supplement thereto).
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 or the Company 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.
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 ▇▇▇▇▇▇▇ & Company, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Capital Markets, with a copy to
▇▇▇▇▇▇▇ Procter LLP, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq.; or, if sent to the Company, will be mailed, delivered or telefaxed to
Chief Financial Officer of Nastech Pharmaceutical Company Inc. (fax no.: (425)
▇▇▇-▇▇▇▇) and confirmed to it at Nastech Pharmaceutical Company Inc., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of the Chief Financial Officer, with
a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇).
Underwriting Agreement - Page 23
13. Benefits; Successors. This Agreement will inure to the benefit
of, and be binding upon, the parties hereto and their respective successors and
assigns, 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. 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.
15. 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.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. 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.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"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.
"Commission" shall mean the Securities and Exchange Commission.
"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 become effective.
"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" means Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Lock-Up Period" shall mean the period beginning on the date hereof
and ending on and including the 120th day after the date hereof, except
that if (a) during the 17-day period ending on
Underwriting Agreement - Page 24
and including such 120th day, the Company issues an earnings release or
material news or a material event relating to the Company occurs or (b)
prior to such 120th day, the Company announces an intention to release
earnings information during the 16-day period beginning on such 120th day,
then the Lock-Up Period shall end on and include the 18th day following
the date of such earnings release or the occurrence of such material news
or material event.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 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 415," "Rule 424," "Rule 430A" 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.
18. Required Actions. Any action required or permitted to be made by
the Representatives under this Agreement may be taken by them jointly or by
▇▇▇▇▇▇▇ & Company, LLC.
19. Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
20. Waiver of Jury Trial. THE COMPANY AND THE UNDERWRITERS EACH
HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
21. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public 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 understands and accepts 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 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 (A) an advisory or fiduciary responsibility in favor
of the Company with respect to any of the transactions contemplated hereby or
the process leading thereto
Underwriting Agreement - Page 25
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) or (B) any other obligation to the Company 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 fiduciary or advisory relationship as no such
relationship exists in connection with the transactions contemplated by this
Agreement; 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.
22. Entire Agreement; Waiver. 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 fiduciary duty.
[Remainder of Page Intentionally Left Blank]
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,
NASTECH PHARMACEUTICAL COMPANY INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO & Secretary
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ & Company, LLC
SunTrust Capital Markets, Inc.
Delafield ▇▇▇▇▇▇▇▇▇, Inc.
By: ▇▇▇▇▇▇▇ & COMPANY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman, Managing Director
For themselves and the other
several Underwriters named
in Schedule I to the
foregoing Agreement.