8,800,000 Units1 BIOPURE CORPORATION UNDERWRITING AGREEMENT December 20, 2005
Exhibit 1.1
8,800,000 Units1
BIOPURE CORPORATION
December 20, 2005
▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc., and
Noble International Investments, Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Noble International Investments, Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
Biopure Corporation, a Delaware corporation (the “Company”), proposes, subject to the
terms and conditions contained herein, to sell to you and the other underwriters named on Schedule
I to this Agreement (the “Underwriters”) for whom you are acting as Representatives (the
“Representatives”), the number of securities of the Company identified on Schedule I to
this Agreement of the Company.
The Underwriters, severally and not jointly, agree to purchase from the Company the number of
Firm Units set forth opposite their respective names on Schedule I attached hereto and made a part
hereof at a purchase price (net of discounts and commissions) of $0.6392 per Firm Unit. The Firm
Units are to be offered to the public (the “Offering”) at the offering price of $0.68 per
Firm Unit. Each Firm Unit consists of one share of the Company’s Class A common stock, par value
$0.01 per share (the “Common Stock”), and one warrant (the “Warrant”). Each
Warrant entitles its holder to exercise it to purchase one share of Common Stock for $0.85 and
shall be exercisable immediately for a period of five (5) years commencing on the Effective Date
(as defined hereinbelow). The shares of Common Stock and warrants are separate securities and are
referred to collectively as Units for convenience only.
The Company has prepared and filed in conformity with the requirements of the Securities Act
of 1933, as amended (the “Securities Act”), and the published rules and regulations
thereunder (the “Rules”) adopted by the Securities and Exchange Commission (the
“SEC”) Registration Statements (as hereinafter defined) on Form S-3 (Nos. 333-114559 and
333-106288). The Registration Statements and any post-effective amendments have become effective;
and no stop order suspending the effectiveness of either Registration Statement has been issued and
no proceeding for that purpose has been initiated or, to the Company’s knowledge after reasonable
investigation, threatened by the SEC (the various parts of the Registration Statement on Form S-3
including all exhibits thereto and including the documents incorporated by reference in the
prospectus contained in such Registration Statement at the time such part of each Registration
Statement became effective, as amended at the time such part of such Registration Statement became
effective are hereinafter collectively called the “Registration Statement”; and the
prospectus, as supplemented by the prospectus supplement filed with the SEC on December 21, 2005
included in the Registration Statement, and including the documents incorporated by reference
therein as of the date of such prospectus supplement, is hereinafter called the
“Prospectus”); any reference to any amendment or supplement to the Prospectus shall be
deemed to refer to and include any documents filed after the date of such Prospectus under the
Securities Exchange of 1934, as amended (the “Exchange
| 1 | Plus an option to purchase up to 1,320,000 additional Units to cover over-allotments. |
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Act”), and incorporated by reference in such Prospectus; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference in the Registration Statement.
Copies of such Registration Statement and of the related Prospectus have heretofore been delivered
by the Company to you.
The Company understands that the Underwriters propose to make a public offering of the shares
and warrants, as set forth in and pursuant to the Prospectus, as soon after the Effective Date and
the date of this Agreement as the Representatives deem advisable. The Company hereby confirms that
the Underwriters and dealers have been authorized to distribute or cause to be distributed the
Prospectus (as from time to time amended or supplemented if the Company furnishes amendments or
supplements thereto to the Underwriters).
1. Sale, Purchase, Delivery and Payment for the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price
of $0.6392 per Unit (net of discounts and commissions) (the “Initial Price”), the number of
Firm Units set forth opposite the name of such Underwriter under the column “Number of Firm Units
to be Purchased” on Schedule I to this Agreement, subject to adjustment in accordance with Section
6 hereof.
(b) For the purposes of covering any over-allotments in connection with the distribution and
sale of the Firm Units, the Company hereby grants to the Underwriters, severally and not jointly,
an option to purchase up to an additional 1,320,000 Units (the “Over-allotment Option”).
Such additional Units are hereinafter referred to as “Option Units.” The Firm Units and the
Option Units are hereinafter collectively referred to as the “Units,” and the Units, the
shares of Common Stock and the Warrants included in the Units and the shares of Common Stock
issuable upon exercise of the Warrants are hereinafter referred to collectively as the “Public
Securities.” The purchase price to be paid for the Option Units will be the same price per
Option Unit as the Initial Price set forth in Section 1(a) hereof.
The Over-allotment Option granted pursuant to Section 1(b) hereof may be exercised by the
Representatives as to all (at any time) or any part (from time to time) of the Option Units within
forty-five (45) days after the Effective Date. The Underwriters will not be under any obligation
to purchase any Option Units prior to the exercise of the Over-allotment Option. The
Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company
by the Representatives, which must be confirmed in writing by overnight mail or facsimile
transmission setting forth the number of Option Units to be purchased and the date and time for
delivery of and payment for the Option Units (the “Option Closing Date”), which will not be
later than five (5) full business days nor earlier than two (2) full business days after the date
of the notice or such other time as shall be agreed upon by the Company and the Representatives, at
the offices of the Representatives or at such other place as shall be agreed upon by the Company
and the Representatives. Upon exercise of the Over-allotment Option, the Company will become
obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein,
the Underwriters will become obligated to purchase, the number of Option Units specified in such
notice.
(c) Payment of the purchase price for, and delivery of the certificates for, the Firm Units
shall be made at 10:00 A.M., New York time, on December 27, 2005, or such other date, not later
than the fifth (5th) business day thereafter, or at such earlier time as shall be agreed
upon by the Representatives and the Company at the offices of the Representatives or at such other
place as shall be agreed upon by the Representatives and the Company. The hour and date of delivery
and payment for the Firm Units are called “Closing Date.” Payment for the Firm Units shall
be made on the Closing Date by
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wire transfer in Federal (same day) funds to the Company upon delivery to you of certificates (in
form and substance satisfactory to the Underwriters) representing components of the Firm Units (or
through the facilities of the Depository Trust Company (“DTC”)) for the account of the
Underwriters. The Firm Units shall be registered in such name or names and in such authorized
denominations as the Representatives may request in writing at least two (2) full business days
prior to the Closing Date. The Company will permit the Representatives to examine and package the
Firm Units for delivery, at least one (1) full business day prior to the Closing Date. The Company
shall not be obligated to sell or deliver the Firm Units except upon tender of payment by the
Representatives for all the Firm Units.
In addition, in the event that any or all of the Option Units are purchased by the
Underwriters, payment of the purchase price, and delivery of the certificates for, the Option Units
shall be made on the Option Closing Date at the Representatives’ election by wire transfer in
Federal (same day) funds to the Company upon delivery to you of certificates representing such
securities (or through the facilities of DTC) for the account of the Underwriters. The
certificates representing the Option Units to be delivered will be in such denominations and
registered in such names as the Representatives request not less than five (5) full business days
prior to the Closing Date or the Option Closing Date, as the case may be, and will be made
available to the Representatives for inspection, checking and packaging at the aforesaid office of
the Company’s transfer agent or correspondent not less than one (1) full business day prior to such
Closing Date.
(d) The Company hereby agrees to issue to the Representatives (and/or their designees) on the
Effective Date two warrants (the “Representatives’ Warrants”), each for the purchase of an
aggregate of 528,000 shares of Common Stock (“Representatives’ Shares”) The Representatives’
Warrants shall be exercisable, in whole or in part, for the period of four (4) years commencing on
the first anniversary of the Effective Date, one at an initial exercise price per Representatives’
Share of $0.816, which is equal to one hundred twenty percent (120%) of the Initial Price, and the
other an initial exercise price per Representatives’ Share of $0.85, which is equal to one hundred
twenty-five percent (125%) of the Initial Price . The Representatives’ Warrants and the shares of
Common Stock issuable upon exercise of the Representatives’ Warrants are hereinafter referred to
collectively as the “Representatives’ Securities.” The Public Securities and the
Representatives’ Securities are hereinafter referred to collectively as the “Securities.”
The Representatives understand and agree that there are significant restrictions against
transferring the Representatives’ Warrants during the first one hundred eighty (180) days after the
Effective Date, as set forth in Section 3 of the Representatives’ Warrants.
Payment of the purchase price of, and delivery of the certificates for, the Representatives’
Warrants shall be made on the Closing Date. The Company shall deliver to the Representatives, upon
payment therefor, certificates for the Representatives’ Warrants in the name or names and in such
authorized denominations as the Representatives may request.
2. Representations and Warranties of the Company. For your own independent business
reasons, you have required the Company to make the following representations and warranties as a
condition to agreeing to execute this Agreement. You understand, and anyone reviewing this
Agreement should understand, that disclosure regarding the Company and its business is contained in
the Prospectus or Registration Statement, and that no representation, warranty, covenant or
agreement contained in this Agreement is intended, or should be construed, to modify the disclosure
about the Company and its business contained in the Prospectus or Registration Statement. The
Company represents and warrants to each Underwriter, as of the date hereof, as of the Closing Date
and as of each Option Closing Date (if any), as follows:
(a) The Registration Statement in respect of the Securities has been filed with the SEC; the
Registration Statement and any post-effective amendment has become effective; and no stop order
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suspending the effectiveness of the Registration Statement has been issued and no proceeding for
that purpose has been initiated or, to the Company’s knowledge after reasonable investigation,
threatened by the SEC. Any required filing of the Prospectus and any supplement thereto pursuant to
Rule 424(b) of the Rules has been or will be made in the manner and within the time period required
by such Rule 424(b).
(b)(i) The documents incorporated by reference in the Prospectus, when they were filed with
the SEC, conformed in and complied in all material respects with the requirements of the Exchange
Act, as applicable, and the Rules thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the SEC, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
the Rules thereunder and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. Notwithstanding the foregoing, none of the representations and warranties in this
paragraph shall apply to statements in, or omissions from, the Prospectus made in reliance upon,
and in conformity with, information herein or otherwise furnished in writing by the Representatives
on behalf of the several Underwriters for use in the Prospectus. With respect to the preceding
sentence, the Company acknowledges that the only information furnished in writing by the
Representatives on behalf of the several Underwriters for use in the Prospectus is the statements
contained under the caption “Underwriting” in the Prospectus.
(c) The agreements and documents described in the Registration Statement and the Prospectus
conform to the descriptions thereof contained therein and there are no agreements or other
documents required to be described in the Registration Statement or the Prospectus or to be filed
with the SEC as exhibits to the Registration Statement that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a
party or by which its property or business is or may be bound or affected and (i) that is referred
to in the Prospectus, or (ii) is material to the Company’s business, has been duly and validly
executed by the Company, is in full force and effect and is enforceable against the Company and, to
the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as
such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (z) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any proceeding therefor may be
brought, and none of such agreements or instruments has been assigned by the Company, and neither
the Company nor, to the Company’s knowledge, any other party is in breach or default thereunder and
no event has occurred that, with the lapse of time or the giving of notice, or both, would
constitute a breach or default thereunder. Performance by the Company of the material provisions
of such agreements or instruments will not result in a violation of any existing applicable law,
rule, regulation, judgment, order or decree of any governmental agency or court, domestic or
foreign, having jurisdiction over the Company or any of its assets or businesses, including,
without limitation, those relating to environmental laws and regulations.
(d) Intentionally deleted.
(e) The disclosures in the Registration Statement summarizing the effects of Federal, State
and local regulation on the Company’s business as currently contemplated are correct summaries in
all material respects and do not omit to state a material fact.
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(f) The statistical and related data included in the Registration Statement are based on or
derived from sources that the Company believes to be reliable and accurate.
(g) Since the respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise specifically stated therein, (i) the Company has not
incurred any liabilities or obligations, direct or contingent, which are material, individually or
in the aggregate, to the Company, taken as a whole, nor entered into any material transaction not
in the ordinary course of business (other than additional draws made under existing credit
facilities), (ii) except as contemplated by the Prospectus, there has not been any change in the
Company’s capital stock or increase in long-term debt (other than additional draws made under
existing credit facilities) or any payment of or declaration to pay any dividends or other
distribution with respect to the capital stock (or other) of the Company, (iii) the Company has not
sustained since the date of the latest audited financial statements included in the Prospectus any
material loss or interference with its business, whether or not covered by insurance, otherwise
than as contemplated by the Prospectus, (iv) since the date of the latest audited financial
statements included in the Prospectus and except as contemplated by the Prospectus, there has not
been any material adverse change, or any development that could reasonably be expected to result in
a material adverse change, in or affecting the general affairs, management, business, properties,
prospects or condition (financial or otherwise), stockholders’ equity, or results of operations of
the Company, taken as a whole, nor have any events occurred which, singly or in the aggregate, have
a material adverse effect on the sale of the Securities or the consummation of the transactions
contemplated hereby (any change or event described in (iv) of this clause (g), a “Material
Adverse Effect”); and (v) the Company have good and marketable title in fee simple to all
material real property and good and marketable title to all material personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such property by the Company;
and any real property and buildings held under lease by the Company are held by it under valid,
subsisting and enforceable leases with such exceptions as are described in the Prospectus or are
not material and do not interfere materially with the use made and proposed to be made of such
property and buildings by the Company.
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and has been duly qualified to
do business as a foreign corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and to the Company’s knowledge, no proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
(i) Ernst & Young LLP (“E&Y”), whose report is filed with the SEC as part of the
Registration Statement, are independent accountants as required by the Act and the Rules. E&Y has
not, during the periods covered by the financial statements included in the Prospectus, provided to
the Company any non-audit services as prohibited in Section 10A(g) of the Exchange Act. There are
no material off-balance sheet transactions, arrangements, obligations (including contingent
obligations) or any other relationships with unconsolidated entities or other persons, that may
have a material current or a material future effect on the Company’s financial condition, changes
in financial condition, results of operations, liquidity, capital expenditures, capital resources,
or significant components of revenues or expenses.
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(j) The financial statements, including the notes thereto and supporting schedules included in
the Registration Statement and Prospectus fairly present in all material respects the financial
position, the results of operations and the cash flows of the Company at the dates and for the
periods to which they apply; and such financial statements have been prepared in conformity with
generally accepted accounting principles, consistently applied throughout the periods involved; and
the supporting schedules included in the Registration Statement present fairly in all material
respects the information required to be stated therein.
(k) The Company had at the date or dates indicated in the Prospectus duly authorized, issued
and outstanding capitalization as set forth in the Registration Statement and the Prospectus. Based
on the assumptions stated in the Registration Statement and the Prospectus, the Company will have
on the Closing Date the adjusted stock capitalization set forth therein. Except as described in the
Prospectus or in the documents incorporated by reference into the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to outstanding options, rights or
warrants.
(l) All issued and outstanding securities of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; except as described in or expressly contemplated by
the Registration Statement, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the Company, or, other
than agreements with a Representative, any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the Company, any such
convertible or exchangeable securities or any such rights, warrants or options. The authorized
Common Stock conforms in all material respects to all statements relating thereto contained in the
Registration Statement and the Prospectus. The offers and sales of the outstanding Common Stock
were at all relevant times either registered under the Act and the applicable state securities or
Blue Sky laws or, based in part on the representations and warranties of the purchasers of such
shares of Common Stock, exempt from such registration requirements. The certificates evidencing the
Securities are in due and proper legal form and have been duly authorized for issuance by the
Company.
(m) The Securities have been duly authorized and, when issued and paid for, will be validly
issued, fully paid and non-assessable; the holders thereof are not and will not be subject to
personal liability by reason of being such holders; the Securities are not and will not be subject
to the preemptive rights of any holders of any security of the Company or similar contractual
rights granted by the Company; and all corporate action required to be taken for the authorization,
issuance and sale of the Securities has been duly and validly taken. The Securities conform in all
material respects to all statements with respect thereto contained in the Registration Statement.
When issued, the Representatives’ Purchase Option, the Representatives’ Warrants and the Warrants
will constitute valid and binding obligations of the Company to issue and sell, upon exercise
thereof and payment of the respective exercise prices therefor, the number and type of securities
of the Company called for thereby in accordance with the terms thereof and such Representatives’
Purchase Option, the Representatives’ Warrants and the Warrants are enforceable against the Company
in accordance with their respective terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (ii)
as enforceability of any indemnification or contribution provision may be limited under the federal
and state securities laws, and (iii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to the equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
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(n) Except as disclosed in the Prospectus and shares of Common Stock underlying warrants
previously issued to placement agents and entitling such placement agents to purchase an aggregate
of less than 20,000 shares of Common Stock at exercise prices in excess of $15.00 per share, no
holders of any securities of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to require the Company to register any
such securities of the Company under the Securities Act or to include any such securities in a
registration statement to be filed by the Company.
(o) This Agreement, the Warrant Agreement (as hereinafter defined), the Representatives’
Purchase Option (collectively, the “Operative Agreements”) have been duly and validly
authorized by the Company and, when executed and delivered, will constitute, the valid and binding
agreements of the Company, enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally, (ii) as enforceability of any
indemnification or contribution provision may be limited under the federal and state securities
laws, and (iii) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(p) The execution, delivery, and performance by the Company of the Operative Agreements, the
consummation by the Company of the transactions herein and therein contemplated and the compliance
by the Company with the terms hereof and thereof do not and will not, with or without the giving of
notice or the lapse of time or both (i) result in a breach of, or conflict with any of the terms
and provisions of, or constitute a default under, or result in the creation, modification,
termination or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to the terms of any agreement or instrument to which the Company is a party, (ii)
result in any violation of the provisions of the certificate of incorporation or the by-laws of the
Company; or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree
of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or
any of its properties or business.
(q) No material default exists in the due performance and observance of any term, covenant or
condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or
credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money,
or any other material agreement or instrument to which the Company is a party or by which the
Company may be bound or to which any of the properties or assets of the Company is subject. The
Company is not in violation of any term or provision of its certificate of incorporation or by-laws
or in violation of any material franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its properties or businesses.
(r) Except as disclosed in the Prospectus, the Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies that it needs as of the date
hereof to conduct its business as described in the Prospectus. The disclosures in the Registration
Statement concerning the effects of federal, state and local regulation on this offering and the
Company’s business purpose as currently contemplated are correct in all material respects and do
not omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The
Company has fulfilled and performed in all material respects all of its material obligations with
respect to such permits and no event has occurred that allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other material impairment of the
rights of the Company thereunder. Except as may be required under the
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Securities Act and state and foreign Blue Sky laws, no other permits are required to enter into,
deliver and perform this Agreement and to issue and sell the Securities.
(s) The Company has all corporate power and authority to enter into this Agreement and to
carry out the provisions and conditions hereof, and all consents, authorizations, approvals and
orders required in connection therewith have been obtained. No consent, authorization or order of,
and no filing with, any court, government agency or other body is required for the valid issuance,
sale and delivery, of the Securities and the consummation of the transactions and agreements
contemplated by the Operative Agreements and as contemplated by the Prospectus, except with respect
to applicable federal and state securities laws.
(t) To the Company’s knowledge, all information contained in the questionnaires
(“Questionnaires”) completed by each of the Company’s officers, directors, and stockholders
and provided to the Underwriters is true and correct in all material respects and the Company has
not become aware of any information which would cause the information disclosed in such
Questionnaires to become inaccurate and incorrect in all material respects.
(u) There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving
the Company or any officer, director and stockholder which has not been disclosed in the
Registration Statement, the Prospectus or the Questionnaires or any part thereof.
(v) The Company has not taken, nor will it take, directly or indirectly, any action designed
to or which might reasonably be expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of the price of the
Common Stock or any security of the Company to facilitate the sale or resale of any of the
Securities.
(w) The Company has not issued any order preventing or suspending the use of any Preliminary
Prospectus, Prospectus, Registration Statement or any part thereof.
(x) Except as described in the Prospectus or agreements with a Representatives, there are no
claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s,
consulting or origination fee by the Company with respect to the sale of the Securities hereunder
or any other arrangements, agreements or understandings of the Company that may affect the
Underwriters’ compensation, as determined by the National Association of Securities Dealers, Inc.
(“NASD”).
(y) The Company has not made any direct or indirect payments (in cash, securities or
otherwise) (i) to any person, as a finder’s fee, consulting fee or otherwise, in consideration of
such person raising capital for the Company or introducing to the Company persons who raised or
provided capital to the Company, (ii) to any NASD member or (iii) to any person or entity that has
any direct or indirect affiliation or association with any NASD member, within the twelve (12)
months prior to the date of the Prospectus Supplement, other than payments to the Representatives
or as disclosed in the filings with the SEC.
(z) Intentionally omitted.
(aa) Based on the Questionnaires, except as set forth on Schedule 2(aa), no officer, director
or any beneficial owner of the Company’s unregistered securities has any direct or indirect
affiliation or association with any NASD member. The Company will advise the Representatives and
their counsel, if it learns that any officer, director or owner of at least 5% of the Company’s
outstanding Common Stock is or becomes an affiliate or associated person of an NASD member
participating in the Offering.
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(bb) Neither the Company nor any other person acting on behalf of the Company has, directly or
indirectly, given or agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer, supplier, employee or
agent of a customer or supplier, or official or employee of any governmental agency or
instrumentality of any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or any political party or candidate for office (domestic or foreign)
or other person who was, is, or may be in a position to help or hinder the business of the Company
(or assist it in connection with any actual or proposed transaction) that (i) might subject the
Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding,
(ii) if not given in the past, might have had a material adverse effect on the assets, business or
operations of the Company as reflected in any of the financial statements contained in the
Prospectus or (iii) if not continued in the future, might adversely affect the assets, business,
operations or prospects of the Company. The Company’s internal accounting controls and procedures
are sufficient to cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as
amended.
(cc) Any certificate signed by any duly authorized officer of the Company and delivered to you
or to your counsel shall be deemed a representation and warranty by the Company to the Underwriters
as to the matters covered thereby.
(dd) (i) The Company is in compliance in all material respects with all rules, laws and
regulation relating to the use, treatment, storage and disposal of toxic substances and protection
of health or the environment (“Environmental Law”) which are applicable to its business; (ii) the
Company has not received any notice from any governmental authority or third party of an asserted
claim under Environmental Laws; (iii) the Company has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its business and is in
compliance with all terms and conditions of any such permit, license or approval; (iv) to the
Company’s knowledge, no facts currently exist that will require the Company to make future material
capital expenditures to comply with Environmental Laws; and (v) no property which is or has been
owned, leased or occupied by the Company has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation of Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et. seq.) or otherwise designated as a contaminated site under applicable state or
local law. The Company has not been named as a “potentially responsible party” under the CER, CLA
1980.
(ee) The Company is not involved in any labor dispute nor, to the knowledge of the Company, is
any such dispute threatened, which dispute would have a Material Adverse Effect. The Company is
not aware of any existing or imminent labor disturbance by the employees of any of its principal
suppliers or contractors which would have a Material Adverse Effect. The Company is not aware of
any threatened or pending litigation between the Company and any of its executive officers which,
if adversely determined, could have a Material Adverse Effect and has no reason to believe that
such officers will not remain in the employment of the Company.
(ff) The Company owns or possesses or has the right to use the licenses, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names (collectively, the
“Intellectual Property”) presently employed by it in connection with, and material to,
individually or in the aggregate, its operations, except where the failure to own, possess or have
the right to use would not have a Material Adverse Effect; and the Company has not received any
notice of infringement of or conflict with asserted rights of others with respect to the foregoing
which, individually or in the aggregate, has, or, would reasonably be expected to result in, a
Material Adverse Effect. To the knowledge of the Company, the use of such Intellectual Property in
connection with the business and
9
operations of the Company as described in the Prospectus does not infringe on the rights of any
person, except as would not, individually or in the aggregate, result in a Material Adverse Effect.
(gg) All income tax returns required to be filed by the Company in all jurisdictions have been
timely and duly filed, other than those filings being contested in good faith, except where the
failure to so file any such returns could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. There are no income tax returns of the Company that are
currently being audited by state, local or federal taxing authorities or agencies (and with respect
to which the Company or its subsidiaries has received notice), where the findings of such audit
could reasonably be expected to result in a Material Adverse Effect. All material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges due or claimed to be
due from such entities, have been paid, other than those being contested in good faith and for
which adequate reserves have been provided or those currently payable without penalty or interest.
(hh) No employee, officer or director of the Company is subject to any noncompetition
agreement or non-solicitation agreement with any employer or prior employer which could materially
affect his ability to be a stockholder, employee, officer and/or director of the Company.
(ii) No more than 45% of the “value” (as defined in Section 2(a)(41) of the Investment Company
Act of 1940, as amended (“Investment Company Act”)) of the Company’s total assets consist of, and
no more than 45% of the Company’s net income after taxes is derived from, securities other than
“Government securities” (as defined in Section 2(a)(16) of the Investment Company Act).
(jj) Intentionally deleted.
(kk) There are no business relationships or related party transactions involving the Company
or any other person required to be described in the Prospectus that have not been described as
required.
(ll) The books, records and accounts of the Company accurately and fairly reflect, in
reasonable detail, the transactions in, and dispositions of, the assets of, and the results of
operations of, the Company. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted accounting
principles and to maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific 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; the chief executive officer and the chief financial officer
of the Company have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and any related
rules and regulations promulgated by the SEC, and the statements contained in any such
certification are complete and correct; the Company maintains “disclosure controls and procedures”
(as defined in Rule 13a-14(c) under the Exchange Act); the Company is otherwise in compliance in
all material respects with all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and is
actively taking steps to ensure that it will be in compliance with other applicable provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act upon the effectiveness of such provisions.
(mm) No transaction has occurred between or among the Company and any of its officers or
directors, stockholders or any affiliate or affiliates of any such officer or director or
stockholder that is required to be described in and is not described in the Registration Statement
and the Prospectus or in the documents incorporated by reference into the Registration Statement
and the Prospectus. There is and has been no material failure on the part of the Company and, to
the knowledge of the Company, any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the ▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇ of 2002 and the rules and regulations promulgated in connection therewith, including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(oo) The Company during the last 3 years has materially complied with, is not in material
violation of, and has not received any written notices of violation with respect to, any foreign,
federal, state or local statute, law or regulation, including without limitation all statutes,
rules, or regulations applicable to the ownership, testing, development, manufacture, packaging,
processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product or product candidate manufactured or distributed by the
Company (“Applicable Laws”), or any license, certificate, approval, clearance, authorization,
permit, supplement or amendment required by any Applicable Laws (“Authorizations”). The Company
possesses all material Authorizations and such material Authorizations are in full force and
effect. The Company is, and its products or product candidates are, in compliance in all material
respects with all Authorizations and Applicable Laws, including, but not limited to, all laws,
statutes, rules, regulations, or orders administered, issued or enforced by the Federal Food and
Drug Administration (the “FDA”) or any other federal or foreign governmental authority having
authority over the Company or any of its products or product candidates (“Governmental Authority”).
The Company during the last 3 years has not received from the FDA or any other Governmental
Authority any notice of adverse findings , notices of violations, Warning Letters, criminal
proceeding notices under Section 305 of the Federal Food, Drug, and Cosmetic Act, or other similar
communication from the FDA or other Governmental Authority alleging or asserting material
noncompliance with Applicable Laws or any Authorizations, and during the last 3 years there have
been no seizures conducted or threatened by the FDA or other Governmental Authority, and no
recalls, market withdrawals, field notifications, notifications of misbranding or adulteration,
safety alerts or similar actions relating to the safety or efficacy of the Company’s products
conducted, requested or threatened by the FDA or other Governmental Authority relating to the
products sold by the Company. The Company has not, either voluntarily or involuntarily, initiated,
conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal,
safety alert, “dear doctor” letter, or other similar notice or action relating to the alleged lack
of safety or efficacy of any of the Company’s products or any alleged product defect or violation,
and the Company has no knowledge that any Governmental Authority has initiated, conducted or
intends to initiate any such notice or action. The Company has not received notice of any claim,
action, suit, proceeding, hearing, enforcement, investigation, arbitration or other similar action
from any Governmental Authority alleging that any product operation or activity is in material
violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental
Authority is considering any such claim, litigation, arbitration, action, suit, investigation or
proceeding. Each regulatory submission for the Company’s products has been filed, cleared and
maintained in compliance in all material respects with all Applicable Laws and Authorizations,
including without limitation applicable federal statutes, rules, regulations or orders administered
or promulgated by the FDA or other Governmental Authority, and all laboratory and clinical studies,
and tests that the Company has conducted and is conducting to demonstrate the safety and efficacy
of its products and product candidates are in all material respects in compliance with accepted
professional scientific standards and all Applicable Laws and Authorizations in all material
respects. No filing or submission to the FDA or any other Governmental Authority, intended to be
the basis for any Authorization, contains any material omission or material false information or
presents data and results from the studies in any manner other than fair, accurate, and complete
presentation. The Company is not aware, directly or indirectly of any other studies, tests,
trials, presentations, publications or other information that could reasonably call into question
the validity, completeness, or accuracy of any study, test, trial, results or data relating to the
Company’s products or product candidates. Except as described in the Prospectus, during the last 3
years the Company has not received any notices or correspondence from any Governmental Authority
(including, but not limited to, the FDA) requiring suspension of any studies, tests, or clinical
trials conducted by or on behalf of the Company. Except as disclosed in the Prospectus, the Company
is not aware of any facts which are reasonably likely to cause (A) the nonapproval or non-
11
clearance, withdrawal, or recall of any products sold or intended to be sold by the Company, or (B)
a suspension or revocation of any of the Company’s Authorizations.
(pp) Other than as contemplated by or described in this Agreement and the Prospectus, there is
no broker, finder or other party that is entitled to receive from the Company or any of its
subsidiaries any brokerage or finder’s fee or other fee or commission as a result of any of the
transactions contemplated by this Agreement.
(qq) The operations of the Company 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”) and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company with respect to the Money Laundering Laws is
pending, or to the best knowledge of the Company, threatened.
(rr) Neither the Company, nor, to its knowledge, any director, officer, agent, employee or
affiliate of the Company is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not 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.
(ss) The Company has fulfilled its obligations, if any, under the minimum funding standards of
Section 302 of the U.S. Employee Retirement Income Security Act of 1974 (“ERISA”) and the
regulations and published interpretations thereunder with respect to each “plan” as defined in
Section 3(3) of ERISA and such regulations and published interpretations in which its employees are
eligible to participate and each such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and published interpretations. No
“Reportable Event” (as defined in 12 ERISA) has occurred with respect to any “Pension Plan” (as
defined in ERISA) for which the Company could have any liability.
(tt) Each of the Company, its directors and officers has not distributed and will not
distribute prior to the later of (i) the Closing Date, or the Option 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 the Prospectus, the Registration Statement and other
materials, if any, permitted by the Securities Act.
(uu) The Company has taken no action designed to, or likely to have the effect of, terminating
the listing of its securities on the Nasdaq Stock Market, nor has the Company received any
notification that the Nasdaq Stock Market is contemplating terminating such listing. Except as
described in the Prospectus or in the documents incorporated by reference into the Prospectus, the
Company’s board of directors has validly appointed an audit committee whose composition satisfies
the requirements of the NASD Marketplace Rules. The Company’s board of directors and/or the audit
committee has adopted a charter that satisfies the requirements of such Marketplace Rules. Neither
the Company’s board of directors nor the audit committee has been informed, nor is any director of
the Company aware, of (i) any significant deficiencies in the design or operation of the Company’s
internal controls which could adversely affect the Company’s ability to record, process, summarize
and report financial data or any material weakness in the Company’s internal controls; or (ii) any
fraud, whether or not material, that
12
involves management or other employees of the Company who have a significant role in the Company’s
internal controls.
3. Covenants of the Company. The Company covenants and agrees as follows:
(a) To prepare the prospectus supplement in a form approved by you (such approval
not to be unreasonably withheld or delayed) and to file such prospectus supplement pursuant to Rule
424(b) under the Act not later than the SEC’s close of business on the second (2nd)
business day following the execution and delivery of this Agreement; to make no further amendment
or any supplement to the Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof other than as required by law; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering or sale of the
Shares; to advise you, promptly after it receives notice thereof, of the issuance by the SEC of any
stop order or of any order preventing or suspending the use of any prospectus, of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the SEC for the amending
or supplementing of the Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or suspending the use of any
prospectus or suspending any such qualification, promptly to use its best efforts to obtain the
withdrawal of such order. 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 Prospectus as then amended
or 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 or supplement the Prospectus to
comply with the Securities Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the SEC, subject to the Company furnishing to the
Representatives for their review a copy thereof prior to filing, an amendment or supplement which
will correct such statement or omission or an amendment which will effect such compliance.
(b) Prior to 12:00 P.M., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriter with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a Prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the offering or sale of
the Securities and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your
reasonable request to file such document and to prepare and furnish without charge to the
Underwriter and to any dealer in securities as many written and electronic copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares at any time nine
months or more after the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver
13
to such Underwriter as many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(c) The Company shall have the right to engage the Representatives, on a non-exclusive basis,
as its agents for the solicitation of the exercise of the Warrants. The Company, if it so engages
the Representatives, will (i) assist the Representatives with respect to such solicitation, if
requested by the Representatives, and (ii) at the Representatives’ request, provide the
Representatives, and direct the Company’s transfer and warrant agent to provide to the
Representatives, at the Company’s cost, lists of the record and, to the extent known, beneficial
owners of, the Warrants. Commencing one (1) year from the Effective Date, if it so engages the
Representatives, the Company will pay the Representatives a commission of five (5) percent of the
exercise price of the Warrants for each Warrant exercised after such date, payable upon payment of
the exercise price, on the terms provided for in the Warrant Agreement, only if permitted under the
rules and regulations of the NASD and only to the extent that an investor who exercises his
Warrants specifically designates, in writing, that the Representatives solicited his exercise. The
Representatives may engage sub-agents in their solicitation efforts if engaged by the Company.
(d) The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date,
if any, to the extent not paid at Closing Date, all expenses incident to the performance of the
obligations of the Company under this Agreement, including but not limited to (i) the preparation,
printing, filing and mailing (including the payment of postage with respect to such mailing) of the
Registration Statement and exhibits thereto, the Prospectuses and the printing and mailing of this
Agreement and related documents, including the cost of all copies thereof and any amendments
thereof or supplements thereto supplied to the Underwriters in quantities as may reasonably be
required by the Underwriters, (ii) the printing , issuance and delivery of the Units, the shares of
Common Stock and the Warrants included in the Units and the Representative’s Purchase Option,
including any transfer or other taxes payable thereon, (iii) filing fees, costs and expenses
(including disbursements for the Representatives’ counsel) incurred in registering the Offering
with the NASD, (iv) costs of placing “tombstone” advertisements in The Wall Street Journal, The New
York Times and a third publication to be selected by the Representatives not to exceed $5,000, (v)
fees and disbursements of the transfer and warrant agent, (vii) the Company’s expenses associated
with “due diligence” meetings arranged by the Representatives including a videotape or power-point
presentation, and (viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this Section 3(d),
provided that the Representatives provide reasonably detailed invoices. The Representatives may
deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the
Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the
Representatives and others. If the Offering contemplated by this Agreement is not consummated for
any reason whatsoever for reasons not attributable to the Underwriters, then the Company shall
reimburse the Underwriters in full for their reasonable out of pocket accountable expenses actually
incurred by the Representatives. The Representatives shall retain such part of the non-accountable
expense allowance previously paid, if any, as shall equal its reasonable actual out-of-pocket
accountable expenses and refund the balance. If the amount previously paid is insufficient to cover
such reasonable actual out-of-pocket accountable expenses, the Company shall remain liable for and
promptly pay any other actual out-of-pocket accountable expenses.
(e) Neither the Company, nor any of its employees, directors or stockholders (without the
consent of the Representatives) has taken or will take, directly or indirectly, any action designed
to or that has constituted or that might reasonably be expected to cause or result in, under the
Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
14
(f) The Company will maintain a system of internal accounting controls sufficient to provide
reasonable assurances that: (i) transactions are executed in accordance with management’s general
or specific authorization, (ii) transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with generally accepted accounting principles and
to maintain accountability for assets, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences.
(g) The Company shall advise the NASD if it is aware that any 5% or greater stockholder of the
Company becomes an affiliate or associated person of an NASD member participating in the
distribution of the Public Securities.
(h) All corporate proceedings and other legal matters necessary to carry out the provisions of
this Agreement and the transactions contemplated hereby shall have been done to the reasonable
satisfaction to counsel for the Underwriters.
(i) For a period of five (5) years from the Effective Date, the Company shall not take any
action or omit to take any action that would cause the Company to be in breach or violation of its
Certificate of Incorporation or By-Laws.
4. Conditions of Underwriters’ Obligations.
The obligations of the several Underwriters to purchase and pay for the Units, as provided
herein, shall be subject to the continuing accuracy of the representations and warranties of the
Company as of the date hereof and as of each of the Closing Date and the Option Closing Date, if
any, to the accuracy of the statements of officers of the Company made pursuant to the provisions
hereof and to the performance by the Company of its obligations hereunder and to the following
conditions:
(a) The Prospectus shall have been filed with the SEC pursuant to Rule 424 within the
applicable time period prescribed for such filing by the Rules under the Securities Act and in
accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the SEC; and all requests for additional information on the part of
the SEC shall have been complied with to your reasonable satisfaction of Cozen ▇’▇▇▇▇▇▇, counsel to
the Underwriters.
(b) By the Effective Date, the Representatives shall have received clearance from the NASD as
to the amount of compensation allowable or payable to the Underwriters as described in the
Prospectus.
(c) On the Closing Date and the Option Closing Date, if any, the Representatives shall have
received the favorable opinion of Ropes & ▇▇▇▇, LLP, counsel to the Company, dated the Closing Date
and the Option Closing Date, if any, addressed to the Representatives and in previously agreed upon
form and substance.
To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials and on the opinions of
other counsel satisfactory to the Representatives as to matters which are governed by laws other
than the laws of the State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States; provided that such counsel shall state that in their opinion
the Underwriters and they are justified in relying on such other opinions. Copies of such
certificates and other opinions shall be furnished to the Representatives and counsel for the
Underwriters.
15
In addition, such counsel shall state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the Representatives and
representatives of the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the Registration Statement
and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing,
no facts have come to the attention of such counsel which lead such counsel to believe that (i) the
Registration Statement at the time it became effective (except with respect to the financial
statements and notes and schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, or
that the Prospectus as amended or supplemented (except with respect to the financial statements,
notes and schedules thereto and other financial data, as to which such counsel need make no
statement) on the date thereof contained any untrue statement of a material fact or omitted 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.
(d) The Representatives shall have received on each Closing Date from FDA regulatory counsel
to the Company to review the regulatory history and status of the products and operations, an
opinion, addressed to the Representatives and dated such Closing Date, and stating in effect that,
based upon review of documents provided by the Company:
| (i) | The Registration Statement in all material respects adequately and accurately describes the legal status of the Company and its product candidates and the legal requirements under the Federal Food, Drug and Cosmetic Act and the rules, regulations and guidances promulgated thereunder applicable to the Company, its manufacturing operations and/or its product candidates and for obtaining and maintaining FDA approval to commercialize its products in the United States. | ||
| (ii) | Counsel is not aware of any lawsuit or regulatory proceeding, pending or threatened, brought by or before the FDA, in which the Company or any of its officers or directors, in their capacity as such, is or would be the defendant or respondent, except as described in the Prospectus, and, without an independent inquiry, counsel is not aware of any lawsuit or regulatory proceeding, pending or threatened, by federal regulatory authorities in which the Company is or would be the defendant or respondent, except as described in the Prospectus. | ||
| (iii) | The statements in the Prospectus under the captions “Risk Factors” relating to the Company’s obtaining FDA and other regulatory approvals, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate in all material respects and accurately present the information with respect to such documents and matters. |
In addition, such counsel shall state that such counsel has participated in conferences with
officers and other representatives of the Company, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe that (i) the Registration Statement at
the time it became effective
16
(except with respect to the financial statements and notes and schedules thereto and other
financial data, as to which such counsel need express no belief) contained any untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus as amended or supplemented
(except with respect to the financial statements, notes and schedules thereto and other financial
data, as to which such counsel need make no statement) on the date thereof contained any untrue
statement of a material fact or omitted 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 or
(ii) any document incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company, when they became effective or
were filed with the SEC, as the case may be, contained, in the case of a registration statement
which became effective under the Securities Act, any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading, or, in the case of other documents which were filed under the Exchange Act
with the Commission, an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(e) At the time this Agreement is executed, and at each of the Closing Date and the Option
Closing Date, if any, you shall have received a letter, addressed to the Representatives and in
form and substance satisfactory in all respects (including the non-material nature of the changes
or decreases, if any, referred to in clause (iii) below) to you and to Cozen ▇’▇▇▇▇▇▇ from E&Y
dated, respectively, as of the date of this Agreement and as of the Closing Date and the Option
Closing Date, if any:
(i) Confirming that they are independent accountants with respect to the Company
within the meaning of the Securities Act and the applicable Regulations and that
they have not, during the periods covered by the financial statements included in
the Prospectus, provided to the Company any non-audit services, as such term is used
in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of the Company included
in the Registration Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the published
Regulations thereunder;
(iii) Stating that, on the basis of a limited review which included a reading of the
latest available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the stockholders and board
of directors and the various committees of the board of directors, consultations
with officers and other employees of the Company responsible for financial and
accounting matters and other specified procedures and inquiries, nothing has come to
their attention which would lead them to believe that (a) the unaudited financial
statements of the Company included in the Registration Statement do not comply as to
form in all material respects with the applicable accounting requirements of the
Securities Act and the Regulations or are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially consistent
with that of the audited financial statements of the Company included in the
Registration Statement, (b) at a date not later than five days prior to the
Effective Date, Closing Date or Option Closing Date, as the case may be, there was
any change in the capital stock or long-term debt of the Company, or any decrease in
the stockholders’ equity of the Company as compared with amounts shown in the
September 30, 2005 balance sheet included in the Registration Statement, other than
as set forth in or
17
contemplated by the Registration Statement, or, if there was any decrease, setting
forth the amount of such decrease, and (c) during the period from a specified date
to a specified date not later than five days prior to the Effective Date, Closing
Date or Option Closing Date, as the case may be, there was any decrease in revenues,
net earnings or net earnings per share of Common Stock, in each case as compared
with the corresponding period in the preceding year and as compared with the
corresponding period in the preceding quarter, other than as set forth in or
contemplated by the Registration Statement, or, if there was any such decrease,
setting forth the amount of such decrease;
(iv) Stating that they have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings, statements and other financial information
pertaining to the Company set forth in the Prospectus in each case to the extent
that such amounts, numbers, percentages, statements and information may be derived
from the general accounting records, including work sheets, of the Company and
excluding any questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter and
found them to be in agreement; and
(v) Statements as to such other matters incident to the transaction contemplated
hereby as you may reasonably request.
(f) At each of the Closing Date and the Option Closing Date, if any, the Representatives shall
have received a certificate of the Company signed by the Chairman of the Board or the President and
the Chief Financial Officer of the Company, dated the Closing Date or the Option Closing Date, as
the case may be, respectively, to the effect that, to the their knowledge, (i) the Company has
performed all covenants and agreements and complied with all conditions required by this Agreement
to be performed or complied with by the Company prior to and as of the Closing Date, or the Option
Closing Date, as the case may be; (ii) the conditions set forth in Section 4 hereof have been
satisfied as of such date; (iii) as of Closing Date and the Option Closing Date, as the case may
be, the representations and warranties of the Company set forth in Section 2 hereof are true and
correct; (iv) they have carefully examined the Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or otherwise required an amendment to the
Registration Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose
have been instituted or are pending under the Securities Act. In addition, the Representatives will
have received such other and further certificates of officers of the Company as the Representatives
may reasonably request.
(g) At each of the Closing Date and the Option Closing Date, if any, the Representatives shall
have received a certificate of the Company signed by the Secretary or Assistant Secretary of the
Company, dated the Closing Date or the Option Date, as the case may be, respectively, certifying
(i) that the copies of the by-laws and certificate of incorporation of the Company attached thereto
are true and complete, have not been modified and are in full force and effect, (ii) that the
resolutions relating to the public offering contemplated by this Agreement are in full force and
effect and have not been modified, (iii) all correspondence between the Company or its counsel and
the SEC, and (iv) as to the incumbency of the officers of the Company. The documents referred to in
such certificate shall be attached to such certificate.
18
(h) Prior to and on each of the Closing Date and the Option Closing Date, if any, (i) there
shall have been no material adverse change or development involving a prospective material adverse
change in the condition or the business activities, financial or otherwise, of the Company from the
latest dates as of which such condition is set forth in the Registration Statement and Prospectus,
(ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened
against the Company before or by any court or federal or state commission, board or other
administrative agency wherein an unfavorable decision, ruling or finding may materially adversely
affect the business, operations or financial condition or income of the Company, except as set
forth in the Registration Statement and Prospectus, (iii) no stop order shall have been issued
under the Act and no proceedings therefor shall have been initiated or threatened by the SEC, and
(iv) the Registration Statement and the Prospectus and any amendments or supplements thereto shall
contain all material statements which are required to be stated therein in accordance with the
Securities Act and the Regulations and shall conform in all material respects to the requirements
of the Securities Act and the Regulations, and neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading.
(i) On the Closing Date, the Company shall have delivered to the Representatives executed
copies of each of the Operative Documents.
(j) All proceedings taken in connection with the authorization, issuance or sale of the
Securities as herein contemplated shall be reasonably satisfactory in form and substance to you and
to Cozen ▇’▇▇▇▇▇▇ and you shall have received from such counsel a favorable opinion, dated the
Closing Date and the Option Closing Date, if any, with respect to such of these proceedings as you
may reasonably require. On or prior to the Effective Date, the Closing Date and the Option Closing
Date, as the case may be, counsel for the Underwriters shall have been furnished such documents,
certificates and opinions as they may reasonably require for the purpose of enabling them to review
or pass upon the matters referred to in this Section 4(j), or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or conditions herein
contained.
5. Indemnification.
(a) Subject to the conditions set forth below and to the extent permitted by law, the Company
agrees to indemnify and hold harmless each of the Underwriters and each of their respective
directors, officers and employees and each person, if any, who controls any such Underwriter (the
“Controlling Person”) within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, whether arising out of any action between any of the Underwriters and the Company or
between any of the Underwriters and any third party or otherwise) to which they or any of them may
become subject under the Securities Act, the Exchange Act or any other statute or at common law or
otherwise or under the laws of foreign countries, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in (i) any Preliminary Prospectus, the
Registration Statement or the Prospectus (as from time to time each may be amended and
supplemented); (ii) in any post-effective amendment or amendments or any new registration statement
and prospectus in which is included securities of the Company issued or issuable upon exercise of
the Representatives’ Purchase Option; or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement or omission was
made in reliance upon and in conformity with written information furnished to the Company with
respect to an
19
Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus,
the Registration Statement or Prospectus, or any amendment or supplement thereof. With respect to
any untrue statement or omission or alleged untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of
any Underwriter to the extent that any loss, liability, claim, damage or expense of such
Underwriter results from the fact that a copy of the Prospectus was not given or sent to the person
asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale
of the Securities to such person as required by the Act and the Regulations, and if the untrue
statement or omission has been corrected in the Prospectus, unless such failure to deliver the
Prospectus was a result of non-compliance by the Company with its obligations under Section 3
hereof. The Company agrees promptly to notify the Representatives of the commencement of any
litigation or proceedings against the Company or any of its officers, directors or controlling
persons in connection with the issue and sale of the Securities or in connection with the
Registration Statement or Prospectus.
(b) If any action is brought against an Underwriter or a Controlling person in respect of
which indemnity may be sought against the Company pursuant to Section 5(a), such Underwriter or
Selected Dealer shall promptly notify the Company in writing of the institution of such action and
the Company shall assume the defense of such action, including the employment and fees of counsel
(subject to the reasonable approval of such Underwriter and payment of actual expenses. Such
Underwriter or Controlling Person shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or
Controlling Person unless (i) the employment of such counsel at the expense of the Company shall
have been authorized in writing by the Company in connection with the defense of such action, or
(ii) the Company shall not have employed counsel to have charge of the defense of such action, or
(iii) such indemnified party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events the reasonable fees and expenses of
not more than one additional firm of attorneys selected by the Underwriter and/or Controlling
Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if
the Underwriter or Controlling Person shall assume the defense of such action as provided above,
the Company shall have the right to approve the terms of any settlement of such action which
approval shall not be unreasonably withheld.
(c) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Company, its directors, officers and employees and agents who control the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to
the several Underwriters, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions made in any Preliminary Prospectus, the Registration
Statement or Prospectus or any amendment or supplement thereto or in any application, in reliance
upon, and in strict conformity with, written information furnished to the Company with respect to
such Underwriter by or on behalf of the Underwriter expressly for use in such Preliminary
Prospectus, the Registration Statement or Prospectus or any amendment or supplement thereto or in
any such application or in any “prospectus” (within the meaning of the Securities Act) or other
offering material used by the Underwriters in the offering or sale of the Units other than the most
recent Prospectus. In case any action shall be brought against the Company or any other person so
indemnified based on any Preliminary Prospectus, the Registration Statement or Prospectus or any
amendment or supplement thereto or any application, and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties given to the Company,
and the Company and each other person so indemnified shall have the rights and duties given to the
several Underwriters by the provisions of Section 5(b).
20
(d) In order to provide for just and equitable contribution under the Securities Act in any
case in which (i) any person entitled to indemnification under this Section 5 makes claim for
indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial
of the last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act, the Exchange Act or otherwise may be required on the part of
any such person in circumstances for which indemnification is provided under this Section 5, then,
and in each such case, the Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the initial offering price
appearing thereon and the Company is responsible for the balance; provided, that, no person guilty
of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 5(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at which the
Public Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been required to pay in
respect of such losses, liabilities, claims, damages and expenses. For purposes of this Section,
each director, officer and employee of an Underwriter or the Company, as applicable, and each
person, if any, who controls an Underwriter or the Company, as applicable, within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as the Underwriters or
the Company, as applicable.
(e) Within fifteen (15) days after receipt by any party to this Agreement (or its
representatives) of notice of the commencement of any action, suit or proceeding, such party will,
if a claim for contribution in respect thereof is to be made against another party (the
“Contributing Party”), notify the Contributing Party of the commencement thereof, but the
omission to so notify the contributing party will not relieve it from any liability which it may
have to any other party other than for contribution hereunder. In case any such action, suit or
proceeding is brought against any party, and such party notifies a Contributing Party or its
representatives of the commencement thereof within the aforesaid fifteen (15) days, the
contributing party will be entitled to participate therein with the notifying party and any other
contributing party similarly notified. Any such Contributing Party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or proceeding effected by
such party seeking contribution on account of any settlement of any claim, action or proceeding
effected by such party seeking contribution without the written consent of such Contributing Party.
The contribution provisions contained in this Section are intended to supersede, to the extent
permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise
available. The Underwriters’ obligations to contribute pursuant to this Section 5(e) are several
and not joint.
6. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their obligations to purchase
the Firm Units or the Option Units, if the Over-allotment Option is exercised, hereunder, and if
the number of the Firm Units or Option Units with respect to which such default relates does not
exceed in the aggregate 10% of the number of Firm Units or Option Units that all Underwriters have
agreed to purchase hereunder, then such Firm Units or Option Units to which the default relates
shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments
hereunder.
(b) In the event that the default addressed in Section 6(a) above relates to more than 10% of
the Firm Units or Option Units, you may in your discretion arrange for yourself or for another
party or
21
parties to purchase such Firm Units or Option Units to which such default relates on the terms
contained herein. If within one (1) business day after such default relating to more than 10% of
the Firm Units or Option Units you do not arrange for the purchase of such Firm Units or Option
Units, then the Company shall be entitled to a further period of one (1) business day within which
to procure another party or parties satisfactory to you to purchase said Firm Units or Option Units
on such terms. In the event that neither you nor the Company arrange for the purchase of the Firm
Units or Option Units to which a default relates as provided in this Section 6, this Agreement may
be terminated by you or the Company without liability on the part of the Company (except as
provided in Sections 3(k) and 5 hereof) or the several Underwriters (except as provided in Section
5 hereof); provided, however, that if such default occurs with respect to the Option Units, this
Agreement will not terminate as to the Firm Units; and provided further that nothing herein shall
relieve a defaulting Underwriter of its liability, if any, to the other several Underwriters and to
the Company for damages occasioned by its default hereunder.
(c) In the event that the Firm Units or Option Units to which the default relates are to be
purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as
aforesaid, you or the Company shall have the right to postpone the Closing Date or Option Closing
Date for a reasonable period, but not in any event exceeding five business days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or
in any other documents and arrangements, and the Company agrees to file promptly any amendment to
the Registration Statement or the Prospectus that in the opinion of counsel for the Underwriters
may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any
party substituted under this Section 6 with like effect as if it had originally been a party to
this Agreement with respect to such Securities.
7. Representations and Agreements to Survive Delivery. Except as the context
otherwise requires, all representations, warranties and agreements contained in this Agreement
shall be deemed to be representations, warranties and agreements at the Closing Dates and such
representations, warranties and agreements of the Underwriters and Company, including the indemnity
agreements contained in Section 5 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter, the Company or any
controlling person, and shall survive the issuance and delivery of the Securities to the several
Underwriters until the earlier of the expiration of any applicable statute of limitations and the
seventh anniversary of the later of the Closing Date or the Option Closing Date, if any, at which
time the representations, warranties and agreements shall terminate and be of no further force and
effect.
8. Effective Date of This Agreement and Termination.
(a) This Agreement shall become effective on the date hereof. (the “Effective Date”).
(b) You shall have the right to terminate this Agreement at any time prior to any Closing
Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or
in your opinion will in the immediate future materially disrupt, general securities markets in the
United States; or (ii) if trading on the New York Stock Exchange, the American Stock Exchange, the
Boston Stock Exchange or on the NASD OTC Bulletin Board (or successor trading market) shall have
been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been fixed, or maximum ranges for prices for securities shall
have been required on the NASD OTC Bulletin Board or by order of the SEC or any other government
authority having jurisdiction, or (iii) if the United States shall have become involved in a new
war or an increase in major hostilities, or (iv) if a banking moratorium has been declared by a New
York State or federal authority, or (v) if a moratorium on foreign exchange trading has been
declared which materially adversely impacts the United States securities market, or (vi) if the
Company shall have sustained a material loss by fire, flood,
22
accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether
or not such loss shall have been insured, will, in your opinion, make it inadvisable to proceed
with the delivery of the Units, or (vii) if any of the Company’s representations, warranties or
covenants hereunder are breached, and if not otherwise qualified by materiality, there is a
material adverse effect or (viii) if the Representatives shall have become aware after the date
hereof of such a material adverse change in the conditions or prospects of the Company, or such
adverse material change in general market conditions, including without limitation as a result of
terrorist activities after the date hereof, as in the Representatives’ judgment would make it
impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce
contracts made by the Underwriters for the sale of the Securities.
(c) In the event that this Agreement shall not be carried out for any reason whatsoever not
reasonably attributable to the Underwriters, within the time specified herein or any extensions
thereof pursuant to the terms herein, the obligations of the Company to pay the out of pocket
expenses related to the transactions contemplated herein shall be governed by Section 3(k) hereof.
(d) Notwithstanding any contrary provision contained in this Agreement, any election hereunder
or any termination of this Agreement, and whether or not this Agreement is otherwise carried out,
the provisions of Section 5 shall not be in any way effected by, such election or termination or
failure to carry out the terms of this Agreement or any part hereof.
9. Miscellaneous.
(a) All communications hereunder, except as herein otherwise specifically provided, shall be
in writing and shall be mailed, delivered or telecopied and confirmed and shall be deemed given
when so delivered or telecopied and confirmed or if mailed, two days after such mailing.
If to the Representatives:
| ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. | ||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer | ||
| Noble International Investments, Inc. | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Director, Capital Markets | ||
Copy to:
|
Cozen ▇’▇▇▇▇▇▇ | |
| ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇, Esq. | ||
| If to the Company: | ||
| Biopure Corporation | ||
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: Zafiris Zafirelis, President & Chief Executive Officer | ||
with a copy to: ▇▇▇▇ ▇▇▇▇▇, Senior VP & General Counsel
23
(b) The headings contained herein are for the sole purpose of convenience of reference, and
shall not in any way limit or affect the meaning or interpretation of any of the terms or
provisions of this Agreement.
(c) This Agreement may only be amended by a written instrument executed by each of the parties
hereto.
(d) This Agreement (together with the other agreements and documents being delivered pursuant
to or in connection with this Agreement) constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and thereof, and supersede all prior agreements and
understandings of the parties, oral and written, with respect to the subject matter hereof.
(e) This Agreement shall inure solely to the benefit of and shall be binding upon the
Representatives, the Underwriters, the Company and the controlling persons, directors and officers
referred to in Section 5 hereof, and their respective successors, legal representatives and
assigns, and no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein
contained.
(f) This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of New York, without giving effect to conflict of laws. The Company hereby agrees
that any action, proceeding or claim against it arising out of, relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York of the United States
of America for the Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to
be served upon the Company may be served by transmitting a copy thereof by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9(a) hereof. Such mailing shall be deemed personal service and shall be legal and binding
upon the Company in any action, proceeding or claim. The Company agrees that the prevailing
party(ies) in any such action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
(g) This Agreement may be executed in one or more counterparts, and by the different parties
hereto in separate counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement, and shall become effective when one or
more counterparts has been signed by each of the parties hereto and delivered to each of the other
parties hereto.
(h) The failure of any of the parties hereto to at any time enforce any of the provisions of
this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any
way effect the validity of this Agreement or any provision hereof or the right of any of the
parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
(i) Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
24
If the foregoing correctly sets forth the understanding between the Underwriters and the
Company, please so indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between us.
Very truly yours,
| BIOPURE CORPORATION |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
| Accepted on the date first above written. | ||||
| ▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC. | ||||
| Acting severally on behalf of itself and as one of the Representatives of the several Underwriters named in Schedule I annexed hereto | ||||
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
Name:
|
▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
Title:
|
Chief Executive Officer | |||
| NOBLE INTERNATIONAL INVESTMENTS, INC. | ||||
| Acting severally on behalf of itself and as one of the Representatives of the several Underwriters named in Schedule I annexed hereto | ||||
By:
|
/s/ Nico ▇. ▇▇▇▇▇ | |||
Name:
|
Nico ▇. ▇▇▇▇▇ | |||
Title:
|
President | |||
25
SCHEDULE I
BIOPURE CORPORATION.
8,800,000 UNITS
| Underwriter | Number of Firm Units to be Purchased | |
▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. |
500,000 | |
Noble International Investments, Inc. |
8,300,000 | |
Total |
8,800,000 |
26