EXHIBIT 1.01
ATRIX LABORATORIES, INC.
565,000 Shares
Common Stock
Underwriting Agreement
dated December 7, 2001
TABLE OF CONTENTS
Page
----
Section 1. Representations and Warranties..................................................................2
(a) Compliance with Registration Requirements.................................................2
(b) Offering Materials Furnished to Underwriter...............................................2
(c) Distribution of Offering Material By the Company..........................................2
(d) The Underwriting Agreement................................................................2
(e) Authorization of the Common Shares........................................................3
(f) No Applicable Registration or Other Similar Rights........................................3
(g) No Material Adverse Change................................................................3
(h) Independent Accountants...................................................................3
(i) Preparation of the Financial Statements...................................................3
(j) Incorporation and Good Standing of the Company and its Subsidiaries.......................4
(k) Capitalization and Other Capital Stock Matters............................................4
(l) Stock Exchange Listing....................................................................4
(m) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required ...............................................................4
(n) No Material Actions or Proceedings........................................................5
(o) Intellectual Property Rights..............................................................5
(p) Title to Properties.......................................................................5
(q) Tax Law Compliance........................................................................6
(r) Company Not an "Investment Company".......................................................6
(s) Insurance.................................................................................6
(t) No Price Stabilization or Manipulation....................................................6
(u) Related Party Transactions................................................................6
(v) Exchange Act Compliance...................................................................6
(w) Company's Accounting System...............................................................7
(x) No Unlawful Contributions or Other Payments...............................................7
(y) Compliance with Environmental Laws........................................................7
(z) Periodic Review of Costs of Environmental Compliance......................................8
(aa) No pending, threatened or contemplated action, suit, investigation or proceeding..........8
(bb) No notice that any product ever manufactured, licensed, or marketed by the Company or any
of its Subsidiaries is, or is alleged to be, an unapproved, adulterated or misbranded
drug or controlled substance..........................................................8
(cc) All necessary permits and approvals.......................................................9
(dd) No service of complaints or notice of any lawsuit relating to Permits.....................9
(ee) All necessary applications for approval...................................................9
(ff) ERISA Compliance.........................................................................10
Section 2. Purchase, Sale and Delivery of Common Shares...................................................10
-i-
Page
----
(a) The Firm Common Shares...................................................................10
(b) The First Closing Date...................................................................10
(c) The Optional Common Shares; the Second Closing Date......................................11
(d) Public Offering of the Common Shares.....................................................11
(e) Payment for the Common Shares............................................................11
(f) Delivery of the Common Shares............................................................11
(g) Delivery of Prospectus to the Underwriter................................................12
Section 3. Additional Covenants...........................................................................12
(a) Underwriter's Review of Proposed Amendments and Supplements..............................12
(b) Securities Act Compliance................................................................12
(c) Amendments and Supplements to the Prospectus and Other Securities Act Matters............12
(d) Copies of any Amendments and Supplements to the Prospectus...............................13
(e) Blue Sky Compliance......................................................................13
(f) Use of Proceeds..........................................................................13
(g) Transfer Agent...........................................................................13
(h) Earnings Statement.......................................................................13
(i) Periodic Reporting Obligations...........................................................13
(j) Company to Provide Copy of the Prospectus in Form That May be
Downloaded from the Internet .......................................................13
(k) Agreement Not To Offer or Sell Additional Securities.....................................14
(l) Future Reports to the Underwriter........................................................14
(m) Exchange Act Compliance..................................................................15
Section 4. Payment of Expenses............................................................................15
Section 5. Conditions of the Obligations of the Underwriter...............................................15
(a) Accountants' Comfort Letter..............................................................15
(b) Compliance with Registration Requirements; No Stop Order, No Objection from NASD.........16
(c) No Material Adverse Change or Ratings Agency Change......................................16
(d) Opinion of Counsel for the Company.......................................................16
(e) Opinion of Counsel for the Underwriter...................................................16
(f) Officers' Certificate....................................................................16
(g) Bring-down Comfort Letter................................................................17
(h) Opinion of Intellectual Property Counsel and Regulatory Counsel..........................17
(i) Additional Documents.....................................................................17
Section 6. Reimbursement of Underwriter's Expenses........................................................17
Section 7. Effectiveness of this Agreement................................................................18
Section 8. Indemnification................................................................................18
-ii-
Page
----
(a) Indemnification of the Underwriter.......................................................18
(b) Indemnification of the Company, its Directors and Officers...............................19
(c) Notifications and Other Indemnification Procedures.......................................19
(d) Settlements..............................................................................20
Section 9. Contribution...................................................................................20
Section 10. Termination of this Agreement..................................................................21
Section 11. Representations and Indemnities to Survive Delivery............................................22
Section 12. Notices........................................................................................22
Section 13. Successors.....................................................................................23
Section 14. Partial Unenforceability.......................................................................23
Section 15. GOVERNING LAW PROVISIONS.......................................................................23
(a) Governing Law Provisions.................................................................23
(b) Consent to Jurisdiction..................................................................23
Section 16. General Provisions.............................................................................23
-iii-
Underwriting Agreement
December 7, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ATRIX LABORATORIES, INC., a Delaware corporation (the
"Company"), proposes to issue and sell to Banc of America Securities LLC (the
"Underwriter") an aggregate of 565,000 shares (the "Firm Common Shares") of its
Common Stock, par value $0.001 per share. In addition, the Company has granted
to the Underwriter an option to purchase up to an additional 84,750 shares (the
"Optional Common Shares") of Common Stock, as provided in Section 2. The Firm
Common Shares and, if and to the extent such option is exercised, the Optional
Common Shares are collectively called the "Common Shares".
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-55634), which contains a form of prospectus and has prepared a
prospectus supplement, which together are to be used in connection with the
public offering and sale of the Common Shares. Such registration statement, as
amended, including the financial statements, exhibits and schedules thereto, in
the form in which it was declared effective by the Commission under the
Securities Act of 1933 and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), including all documents incorporated or
deemed to be incorporated by reference therein and any information deemed to be
a part thereof at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is called the "Registration Statement". Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act
is called the "Rule 462(b) Registration Statement", and from and after the date
and time of filing of the Rule 462(b) Registration Statement the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
Such prospectus, in the form first used by the Underwriter to confirm sales of
the Common Shares, is called the "Prospectus"; and the Company's prospectus
subject to completion and the Company's prospectus supplement subject to
completion are each called a "preliminary prospectus". All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a preliminary prospectus, a preliminary prospectus supplement or the Prospectus,
or any amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The Company hereby confirms its agreement with the Underwriter
as follows:
Section 1. Representations and Warranties.
(a) Compliance with Registration Requirements. The
Registration Statement and any Rule 462(b) Registration Statement have been
declared effective by the Commission under the Securities Act. The Company has
complied to the Commission's satisfaction with all requests of the Commission
for additional or supplemental information. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed
complied in all material respects with the Securities Act and, if filed by
electronic transmission pursuant to ▇▇▇▇▇, was identical to the copy thereof
delivered to the Underwriter for use in connection with the offer and sale of
the Common Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it
became effective and at all subsequent times at which a Prospectus is required
to be delivered, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, as
amended or supplemented, as of its date and at all subsequent times at which a
Prospectus is required to be delivered, did not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in
the two immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of the
Underwriter expressly for use therein. There are no contracts or other documents
required to be described in the Prospectus or to be filed as exhibits to the
Registration Statement which have not been described or filed as required.
(b) Offering Materials Furnished to Underwriter. The Company
has delivered to the Underwriter two complete manually signed copies of the
Registration Statement and of each consent and certificate of experts filed as a
part thereof, and conformed copies of the Registration Statement (without
exhibits) and preliminary prospectuses and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Underwriter has
reasonably requested.
(c) Distribution of Offering Material By the Company. The
Company has not distributed and will not distribute, prior to the later of (i)
the First Closing Date or if applicable, the Second Closing Date (as such terms
are defined below) and (ii) the completion of the Underwriter's distribution of
the Common Shares, any offering material in connection with the offering and
sale of the Common Shares other than a preliminary prospectus, the Prospectus or
the Registration Statement.
(d) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance
-2-
with its terms, except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(e) Authorization of the Common Shares. The Common Shares to
be purchased by the Underwriter from the Company have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(f) No Applicable Registration or Other Similar Rights. There
are no persons with registration or other similar rights to have any equity or
debt securities registered for sale under the Registration Statement or included
in the offering contemplated by this Agreement except for such rights as have
been duly waived.
(g) No Material Adverse Change. Except as otherwise disclosed
in the Prospectus, subsequent to the respective dates as of which information is
given in the Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its subsidiaries, considered as
one entity (any such change is called a "Material Adverse Change"); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.
(h) Independent Accountants. Deloitte & Touche LLP, whose
reports on the consolidated financial statements of the Company and its
subsidiaries are filed with the Commission as part of the Registration Statement
and Prospectus, are independent public accountants as required by the Securities
Act and the Exchange Act.
(i) Preparation of the Financial Statements. The financial
statements filed with the Commission and incorporated by reference as a part of
the Registration Statement and included in the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of and at
the dates indicated and the results of their operations and cash flows for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles as applied in the United States
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other financial statements or
supporting schedules are required to be included in the Registration Statement.
The "Selected Consolidated Financial Data" set forth in the Item 6 of the
Company's Form 10K for the year ended December 31, 2000 fairly presents the
information set forth therein on a basis consistent with that of the audited
financial statements incorporated by reference in the Registration Statement and
included in the Prospectus.
-3-
(j) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, except where the failure to be in
good standing would not, individually or in the aggregate, result in a Material
Adverse Change, and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and,
in the case of the Company, to enter into and perform its obligations under this
Agreement. Each of the Company and each subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would
not, individually or in the aggregate, result in a Material Adverse Change. All
of the issued and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and, except with
respect to the Company's joint venture, Transmucosal Technologies, Ltd., all
issued and outstanding capital stock of each of the Company's subsidiaries is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim. The Company
does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit C hereto.
(k) Capitalization and Other Capital Stock Matters. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Registration Statement (other than for subsequent issuances, if any,
pursuant to employee benefit plans described in the Registration Statement or
upon exercise of outstanding options described in the Prospectus). The Common
Stock (including the Common Shares) conforms in all material respects to the
description thereof contained in the Registration Statement. All of the issued
and outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in compliance with
federal and state securities laws. None of the outstanding shares of Common
Stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the Company.
There are no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any capital
stock of the Company or any of its subsidiaries other than those accurately
described in the Registration Statement. The description of the Company's stock
option, stock bonus and other stock plans or arrangements, and the options or
other rights granted thereunder, set forth in the Registration Statement
accurately and fairly presents the information required to be shown with respect
to such plans, arrangements, options and rights.
(l) Stock Exchange Listing. The Common Stock is registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act") and is listed on the Nasdaq National Market and the Company has taken no
action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the Commission or the National Association of Securities
Dealers, Inc. (the "NASD") is contemplating terminating such registration or
listing.
(m) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
subsidiaries is in violation of its charter or
-4-
by-laws or is in default (or, with the giving of notice or lapse of time, would
be in default) ("Default") under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject (each, an "Existing Instrument"), except for such
Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change. The Company's execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby and by the
Prospectus (i) have been duly authorized by all necessary corporate action and
will not result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary. No consent, approval, authorization or other
order of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's execution,
delivery and performance of this Agreement and consummation of the transactions
contemplated hereby and by the Prospectus, except such as have been obtained or
made by the Company and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and from NASD.
(n) No Material Actions or Proceedings. Except as otherwise
disclosed in the Registration Statement, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, (ii) which has as the subject thereof any officer or director of,
or property owned or leased by, the Company or any of its subsidiaries or (iii)
relating to environmental or discrimination matters, where in any such case (A)
there is a reasonable possibility that such action, suit or proceeding might be
determined adversely to the Company or such subsidiary and (B) any such action,
suit or proceeding, if so determined adversely, would reasonably be expected to
result in a Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. No material labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the best of
the Company's knowledge, is threatened or imminent.
(o) Intellectual Property Rights. The Company and its
subsidiaries own or possess sufficient trademarks, trade names, patent rights,
copyrights, licenses, approvals, trade secrets and other similar rights
(collectively, "Intellectual Property Rights") reasonably necessary to conduct
their businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries has received any notice of
infringement or conflict with asserted Intellectual Property Rights of others,
which infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change.
(p) Title to Properties. The Company and each of its
subsidiaries has good and marketable title to all of its respective properties
and assets reflected as owned in the financial statements referred to in Section
1(i) above, in each case free and clear of any security interests, mortgages,
-5-
liens, encumbrances, equities, claims and other defects, except as may be
reflected in such financial statements and such as do not materially and
adversely affect the value of such property and do not materially interfere with
the use made or proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal property
held under lease by the Company or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the Company or such
subsidiary.
(q) Tax Law Compliance. The Company and its subsidiaries have
filed all necessary federal, state and foreign income and franchise tax returns
and have paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any
of them. The Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(i) above in respect of
all federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined.
(r) Company Not an "Investment Company". The Company has been
advised of the rules and requirements under the Investment Company Act of 1940,
as amended (the "Investment Company Act"). The Company is not, and after receipt
of payment for the Common Shares will not be, an "investment company" within the
meaning of Investment Company Act and will not use the proceeds from the sale of
the shares in the offering, or conduct its business, in a manner which would
cause it to become subject to the Investment Company Act.
(s) Insurance. Each of the Company and its subsidiaries are
insured by recognized, financially sound and reputable institutions with
policies in such amounts and with such deductibles and covering such risks as
are generally deemed adequate and customary for their businesses including, but
not limited to, policies covering real and personal property owned or leased by
the Company and its subsidiaries against theft, damage, destruction and acts of
vandalism. The Company has no reason to believe that it or any subsidiary will
not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change. To the Company's
knowledge, neither of the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
(t) No Price Stabilization or Manipulation. The Company has
not taken and will not take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Common Shares.
(u) Related Party Transactions. There are no business
relationships or related-party transactions involving the Company or any
subsidiary or any other person required to be described in the Prospectus which
have not been described as required.
(v) Exchange Act Compliance. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission,
-6-
complied and will comply in all material respects with the requirements of the
Exchange Act, and, when read together with the other information in the
Prospectus, at the time the Registration Statement and any amendments thereto
become effective, at the date of the Prospectus and at the First Closing Date
and the Second Closing Date, as the case may be, 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 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.
(w) Company's Accounting System. The Company maintains a
system of 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 to permit
preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States 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.
(x) No Unlawful Contributions or Other Payments. Neither the
Company nor any of its subsidiaries nor, to the best of the Company's knowledge,
any employee or agent of the Company or any subsidiary, has made any
contribution or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character required to
be disclosed in the Prospectus.
(y) Compliance with Environmental Laws. (i) Each of the
Company and its subsidiaries has obtained all permits, licenses and other
authorizations, consents and approvals which are required under the
Environmental Laws (as defined below), (ii) each of the Company and its
Subsidiaries is in full compliance with all terms and conditions of all permits,
licenses and authorizations required under the Environmental Laws, (iii) each of
the Company and its Subsidiaries is in full compliance with all limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws or contained in any
regulation, code, plan, consent or other order, decree, judgment, notice of
violation or other notice, or demand letter issued, entered, promulgated or
approved thereunder (collectively, the "Environmental Requirements"), (iv) no
officer of the Company is aware of nor has he or she received (A) notice
(written or oral) from a governmental authority, citizens group, employee or
otherwise that alleges that the Company or any of its Subsidiaries is not in
full compliance with one or more Environmental Requirements, or (B) notice
(written or oral) respecting the Company or any of its Subsidiaries of any past,
present or future events, conditions, circumstances, activities, practices,
incidents, actions or plans that may interfere with or prevent continued
compliance with all Environmental Requirements, or that may give rise to any
common law or other legal liability or otherwise form the basis of any claim,
action, suit, proceeding, hearing or investigation (each, an "Action"), based on
or related to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling, or the emission, discharge, release or
threatened release, of any chemical, pollutant, contaminant, or hazardous or
toxic material or waste or petroleum or petroleum products into ambient air,
surface water, ground water or land, and (v) there is no Action relating to any
Environmental Requirement pending or, to the best knowledge of the Company,
threatened against or affecting (A) the Company or any of its Subsidiaries, or
their respective properties, or (B) any person or
-7-
entity whose liability for such Action has or may have been retained or assumed
either contractually or by operation of law by the Company or any of its
Subsidiaries. "Environmental Laws" shall mean Federal, state and local laws
relating to pollution or protection of human health or the environment,
including, without limitation, laws (including the common law) relating to
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants or hazardous or toxic materials or wastes or petroleum or petroleum
products into ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of chemicals, pollutants, contaminants or
hazardous or toxic materials or wastes or petroleum or petroleum products.
(z) Periodic Review of Costs of Environmental Compliance. In
the ordinary course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in a Material
Adverse Change.
(aa) No pending, threatened or contemplated action, suit,
investigation or proceeding. Except as described in the Registration Statement,
there is no action, suit, investigation or proceeding pending or to the
knowledge of the Company, threatened or contemplated before or by any Federal or
state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, including, without limitation, the
Commission, the Food and Drug Administration (the "FDA"), the Drug Enforcement
Administration (the "DEA") or the Department of Justice (the "DOJ"), or
arbitrator to which the Company or any of its Subsidiaries is or may become a
party or of which any property of the Company or any of its Subsidiaries is
subject or affected, at law or equity, that (A) might affect the consummation of
the transactions contemplated under this Agreement, including the issuance or
validity of the Common Shares, (B) could be reasonably expected to result in a
Material Adverse Change, (C) is required to be disclosed in the Registration
Statement or the Prospectus and is not so disclosed or (D) relates to a material
violation of the Federal Food, Drug and Cosmetic Act (the "FDC Act") (and each
state's equivalent of said act), the Federal Controlled Substances Act (and each
state's equivalent of such act) (collectively, the "CSA"), or any regulations
promulgated thereunder which violations might result in a Material Adverse
Change. All pending legal or governmental proceedings to which the Company or
any of its Subsidiaries is a party or of which any of their respective
properties are subject or affected which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, would not
result in a Material Adverse Change.
(bb) No notice that any product ever manufactured, licensed,
or marketed by the Company or any of its Subsidiaries is, or is alleged to be,
an unapproved, adulterated or misbranded drug or controlled substance. Neither
the Company, nor any of its Subsidiaries has received any notice, or warning
letter from the FDA, the DEA or the DOJ, that any product ever manufactured,
licensed, or marketed by the Company or any of its Subsidiaries is, or is
alleged to be, an unapproved, adulterated or misbranded drug or controlled
substance including, without limitation, (1) an order or request from
-8-
the FDA, the DEA or the DOJ or other authorized governmental or regulatory body
that the Company or any of its Subsidiaries recall or withdraw from the market
or cease to market any product sold or manufactured by the Company, which could
reasonably be expected to result in a Material Adverse Change, or (2) a lawsuit
filed by the United States with respect to any product sold or manufactured by
the Company or against the Company or any of its Subsidiaries or any of their
respective officers, directors or employees alleging that any of the Company's
or any of its Subsidiaries' products is an unapproved, adulterated or misbranded
drug or controlled substance, or (3) an order from the FDA debarring the Company
or any of its Subsidiaries or any of their respective officers, directors or
employees from submitting or participating in the submission of abbreviated new
drug applications (the "ANDAs").
(cc) All necessary permits and approvals. The Company and each
of its Subsidiaries have such licenses, consents, permits and other approvals
and has made all necessary filings required under any federal, state or local
and foreign law, regulation or rule, and has obtained all authorizations of and
from governmental or regulatory authorities ("Permits") as are necessary under
applicable law to own their respective properties and to conduct their
respective businesses in the manner now being conducted and as described in the
Registration Statement, except such Permits which individually or in the
aggregate could not have a Material Adverse Effect; and the Company and each of
the Subsidiaries have fulfilled and performed all of their respective
obligations with respect to such Permits in all material respects, and no event
has occurred which allows, or after notice or lapse of time or both would allow,
revocation or termination thereof or result in any other material impairment of
the rights of the holder of any such Permits except such Permits which
individually or in the aggregate could not result in a Material Adverse Change.
(dd) No service of complaints or notice of any lawsuit
relating to Permits. Except as disclosed in the Registration Statement, neither
the Company, nor any of its Subsidiaries has been served with any complaint or
received any other notice of lawsuits, arbitrations, legal or administrative or
regulatory proceedings, charges, complaints or investigations by any state
regulatory agency against or pending against or relating to any Permits (as
defined above) which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected to result
in a Material Adverse Change. There have not been any drug application
withdrawals, product recalls or similar actions by the Company or any of its
Subsidiaries, which could be reasonably expected to have a Material Adverse
Effect. All pre-clinical and clinical studies conducted by or on behalf of the
Company and each of its Subsidiaries as well as all manufacturing, labeling, and
distribution of materials related to all drug development activities, have been
conducted in compliance in all material respects with applicable FDA and DEA
rules and regulations, including but not limited to the FDA's good laboratory
practice, good clinical practice and current good manufacturing practice
requirements. The FDA has not refused any ANDA submitted by the Company or any
of its Subsidiaries, except for refusals which could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(ee) All necessary applications for approval. All necessary
applications for approval, as required by the FDC Act, for the Company's
existing and proposed product line, have been or will be filed with the FDA or
other regulatory agencies as appropriate. All necessary new drug applications
(the "NDAs"), ANDAs, investigational new drug applications (the "INDs"),
premarket approval applications and amendments and or supplements thereto, as
required by the FDC Act, the regulations
-9-
of the FDA adopted thereunder, and any policies issued by the FDA in connection
with such INDs, NDAs or ANDAs, premarket approval applications and amendments
and/or supplements thereto, have been or will be filed with the FDA or other
regulatory agencies as appropriate.
(ff) ERISA Compliance. The Company and its subsidiaries and
any "employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as defined below) are
in compliance in all material respects with ERISA. "ERISA Affiliate" means, with
respect to the Company or a subsidiary, any member of any group of organizations
described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder
(the "Code") of which the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined under ERISA). Neither
the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
Section 2. Purchase, Sale and Delivery of the Common Shares.
(a) The Firm Common Shares. The Company agrees to issue and
sell to the Underwriter the Common Shares upon the terms herein set forth. On
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the
Underwriter agrees, to purchase from the Company all of the Firm Common Shares
being offered by the Company herewith. The purchase price per Common Share to be
paid by the Underwriter to the Company shall be $21.505 per share.
(b) The First Closing Date. Delivery of certificates for the
Common Shares to be purchased by the Underwriter and payment therefor shall be
made at the offices of Banc of America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or such other place as may be agreed to by the
Company and the Underwriter) at 9:00 a.m.
New York time, on December 12, 2001,
or such other time and date not later than 1:30 p.m.
New York time, on December
12, 2001 as the Underwriter shall designate by notice to the Company (the time
and date of such closing are called the "First Closing Date"). The Company
hereby acknowledges that circumstances under which the Underwriter may provide
notice to postpone the First Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the Underwriter to
recirculate to the public copies of an amended or supplemented Prospectus.
-10-
(c) The Optional Common Shares; the Second Closing Date. In
addition, on the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Company hereby grants an option to the Underwriter to purchase up to an
aggregate of 84,750 Optional Common Shares from the Company at the purchase
price per share to be paid by the Underwriter for the Firm Common Shares. The
option granted hereunder is for use by the Underwriter solely in covering any
over-allotments in connection with the sale and distribution of the Firm Common
Shares. The option granted hereunder may be exercised at any time (but not more
than once) upon notice by the Underwriter to the Company, which notice may be
given at any time within 30 days from the date of this Agreement. Such notice
shall set forth (i) the aggregate number of Optional Common Shares as to which
the Underwriter is exercising the option, (ii) the names and denominations in
which the certificates for the Optional Common Shares are to be registered and
(iii) the time, date and place at which such certificates will be delivered
(which time and date may be simultaneous with, but not earlier than, the First
Closing Date; and in such case the term "First Closing Date" shall refer to the
time and date of delivery of certificates for the Firm Common Shares and the
Optional Common Shares). Such time and date of delivery, if subsequent to the
First Closing Date, is called the "Second Closing Date" and shall be determined
by the Underwriter and shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. If any Optional Common
Shares are to be purchased, the Underwriter agrees, to purchase all of the
Optional Common Shares. The Underwriter may cancel the option at any time prior
to its expiration by giving written notice of such cancellation to the Company.
(d) Public Offering of the Common Shares. The Underwriter
hereby advises the Company that the Underwriter intends to offer for sale to the
public, as described in the Prospectus, the Common Shares as soon after this
Agreement has been executed as the Underwriter, in its sole judgment, has
determined is advisable and practicable.
(e) Payment for the Common Shares. Payment for the Common
Shares shall be made at the First Closing Date (and, if applicable, at the
Second Closing Date) by wire transfer of immediately available funds to the
order of the Company.
It is understood that the Underwriter has been authorized, for
its own account to accept delivery of and receipt for, and make payment of the
purchase price for, the Firm Common Shares and any Optional Shares the
Underwriter has agreed to purchase.
(f) Delivery of the Common Shares. The Company shall deliver,
or cause to be delivered, to the Underwriter certificates for the Firm Common
Shares at the First Closing Date, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor. The Company shall also deliver, or cause to be delivered, to the
Underwriter for the account of the Underwriter, certificates for the Optional
Common Shares the Underwriter has agreed to purchase at the First Closing Date
or the Second Closing Date, as the case may be, against the irrevocable release
of a wire transfer of immediately available funds for the amount of the purchase
price therefor. The certificates for the Common Shares shall be in definitive
form and registered in such names and denominations as the Underwriter shall
have requested at least two full business days prior to the First Closing Date
(or the Second Closing Date, as the case
-11-
may be) and shall be made available for inspection on the business day preceding
the First Closing Date (or the Second Closing Date, as the case may be) at a
location in
New York City as the Underwriter may designate. Time shall be of the
essence, and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Underwriter.
(g) Delivery of Prospectus to the Underwriter. Not later than
12:00 p.m. on the second business day following the date the Common Shares are
first released by the Underwriter for sale to the public, the Company shall
deliver or cause to be delivered, copies of the Prospectus in such quantities
and at such places as the Underwriter shall request.
Section 3. Additional Covenants .
(a) Underwriter's Review of Proposed Amendments and
Supplements. During such period beginning on the date hereof and ending on the
later of the First Closing Date or such date, as in the opinion of counsel for
the Underwriter, the Prospectus is no longer required by law to be delivered in
connection with sales by the Underwriter or dealer (the "Prospectus Delivery
Period"), prior to amending or supplementing the Registration Statement
(including any registration statement filed under Rule 462(b) under the
Securities Act) or the Prospectus including any amendment or supplement through
incorporation by reference of any report filed under the Exchange Act, the
Company shall furnish to the Underwriter for review a copy of each such proposed
amendment or supplement, and the Company shall not file any such proposed
amendment or supplement to which the Underwriter reasonably objects in writing.
(b) Securities Act Compliance. After the date of this
Agreement, the Company shall promptly advise the Underwriter in writing (i) of
the receipt of any comments of, or requests for additional or supplemental
information from, the Commission, (ii) of the time and date of any filing of any
post-effective amendment to the Registration Statement or any amendment or
supplement to any preliminary prospectus or the Prospectus, (iii) of the time
and date that any post-effective amendment to the Registration Statement becomes
effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing or quotation the Common Stock from any
securities exchange upon which it is listed for trading or included or
designated for quotation, or of the threatening or initiation of any proceedings
for any of such purposes. If the Commission shall enter any such stop order at
any time, the Company will use its best efforts to obtain the lifting of such
order at the earliest possible moment. Additionally, the Company agrees that it
shall comply with the provisions of Rules 424(b), as applicable, under the
Securities Act and will use its reasonable efforts to confirm that any filings
made by the Company under such Rule 424(b) were received in a timely manner by
the Commission.
(c) Amendments and Supplements to the Prospectus and Other
Securities Act Matters. If, during the Prospectus Delivery Period, any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if in the opinion of the Underwriter or counsel for the
Underwriter it is otherwise necessary to amend or supplement the Prospectus to
comply with law, the Company agrees to promptly prepare (subject to
-12-
Section 3(a) hereof), file with the Commission and furnish at its own expense to
the Underwriter and to dealers, amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
(d) Copies of any Amendments and Supplements to the
Prospectus. The Company agrees to furnish the Underwriter, without charge,
during the Prospectus Delivery Period, as many copies of the Prospectus and any
amendments and supplements thereto (including any documents incorporated or
deemed incorporated by reference therein) as the Underwriter may request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Underwriter and counsel for the Underwriter to qualify or register the Common
Shares for sale under (or obtain exemptions from the application of) the state
securities or blue sky laws or Canadian provincial Securities laws of those
jurisdictions designated by the Underwriter, shall comply with such laws and
shall continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Common Shares. The Company shall
not be required to qualify as a foreign corporation or to take any action that
would subject it to general service of process in any such jurisdiction where it
is not presently qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Underwriter promptly of the suspension
of the qualification or registration of (or any such exemption relating to) the
Common Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of
the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds
from the sale of the Common Shares sold by it in the manner described under the
caption "Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall engage and maintain, at
its expense, a registrar and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company
will make generally available to its security holders and to the Underwriter an
earnings statement (which need not be audited) covering the twelve-month period
ending June 30, 2002 that satisfies the provisions of Section 11(a) of the
Securities Act.
(i) Periodic Reporting Obligations. During the Prospectus
Delivery Period the Company shall file, on a timely basis, with the Commission
and the Nasdaq National Market all reports and documents required to be filed
under the Exchange Act.
(j) Company to Provide Copy of the Prospectus in Form That May
be Downloaded from the Internet. The Company shall cause to be prepared and
delivered, at its expense, within one business day from the effective date of
this Agreement, to Banc of America Securities LLC an "electronic Prospectus" to
be used by the Underwriter in connection with the offering and sale of the
Common Shares. As used herein, the term "electronic Prospectus" means a form of
Prospectus, and
-13-
any amendment or supplement thereto, that meets each of the following
conditions: (i) it shall be encoded in an electronic format, satisfactory to
Banc of America Securities LLC, that may be transmitted electronically by Banc
of America Securities LLC to offerees and purchasers of the Common Shares for at
least the Prospectus Delivery Period; (ii) it shall disclose the same
information as the paper Prospectus and Prospectus filed pursuant to ▇▇▇▇▇,
except to the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall be replaced
in the electronic Prospectus with a fair and accurate narrative description or
tabular representation of such material, as appropriate; and (iii) it shall be
in or convertible into a paper format or an electronic format, satisfactory to
Banc of America Securities LLC, that will allow investors to store and have
continuously ready access to the Prospectus at any future time, without charge
to investors (other than any fee charged for subscription to the Internet as a
whole and for on-line time). The Company hereby confirms that it has included or
will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise with the
Commission and in the Registration Statement at the time it was declared
effective an undertaking that, upon receipt of a request by an investor or his
or her representative within the Prospectus Delivery Period, the Company shall
transmit or cause to be transmitted promptly, without charge, a paper copy of
the Prospectus.
(k) Agreement Not To Offer or Sell Additional Securities.
During the period of 90 days following the date of the Prospectus, the Company
will not, without the prior written consent of Banc of America Securities LLC
(which consent may be withheld at the sole discretion of Banc of America
Securities LLC), directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of or transfer, or announce the offering of, or file any registration statement
under the Securities Act in respect of, any shares of Common Stock, options or
warrants to acquire shares of the Common Stock or securities exchangeable or
exercisable for or convertible into shares of Common Stock (other than as
contemplated by this Agreement with respect to the Common Shares); provided,
however, that the Company may issue shares of its Common Stock or options to
purchase its Common Stock, or Common Stock upon exercise of options, pursuant to
any stock option, stock bonus or other stock plan or arrangement described in
the Prospectus, but only if the holders of such shares, options, or shares
issued upon exercise of such options, agree in writing not to sell, offer,
dispose of or otherwise transfer any such shares or options during such 90 day
period without the prior written consent of Banc of America Securities LLC
(which consent may be withheld at the sole discretion of the Banc of America
Securities LLC) and may issue Common Stock upon conversion of the Company's
outstanding 7% convertible subordinated notes due 2004.
(l) Future Reports to the Underwriter. During the period of
five years hereafter the Company will furnish to the Underwriter at ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇: (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such fiscal year
and statements of income, stockholders' equity and cash flows for the year then
ended and the opinion thereon of the Company's independent public or certified
public accountants; (ii) as soon as practicable after the filing thereof, copies
of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the Company with the
Commission, the NASD or any securities exchange; and (iii) as soon as available,
copies of any report or communication of the Company mailed generally to holders
of its capital stock.
-14-
(m) Exchange Act Compliance. During the Prospectus Delivery
Period, the Company will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner
and within the time periods required by the Exchange Act.
Section 4. Payment of Expenses. The Company agrees to pay all
costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Common Shares (including all printing and engraving costs),
(ii) all fees and expenses of the registrar and transfer agent of the Common
Stock, (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Common Shares to the Underwriter, (iv) all
fees and expenses of the Company's counsel, independent public or certified
public accountants and other advisors, (v) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), each preliminary prospectus and the
Prospectus, and all amendments and supplements thereto, and this Agreement, (vi)
all filing fees, attorneys' fees and expenses incurred by the Company or the
Underwriter in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the
Common Shares for offer and sale under the state securities or blue sky laws or
the provincial securities laws of Canada, and, if requested by the Underwriter,
preparing and printing a "Blue Sky Survey" or memorandum, and any supplements
thereto, advising the Underwriter of such qualifications, registrations and
exemptions, (vii) the fees and expenses associated with including the Common
Shares on the Nasdaq National Market, and (viii) all other fees, costs and
expenses referred to Item of Part II of the Registration Statement. Except as
otherwise provided in this Section 4, Section 6, Section 8 and Section 9 hereof,
the Underwriter shall pay its own expenses, including the fees and disbursements
of their counsel.
Section 5. Conditions of the Obligations of the Underwriter.
The obligations of the Underwriter to purchase and pay for the Common Shares as
provided herein on the First Closing Date and, with respect to the Optional
Common Shares, the Second Closing Date, shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof and as of the First Closing Date as though then
made and, with respect to the Optional Common Shares, as of the Second Closing
Date as though then made, to the timely performance by the Company of its
covenants and other obligations hereunder, and to each of the following
additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the
Underwriter shall have received from Deloitte & Touche LLP, independent
public or certified public accountants for the Company, and from KPMG,
independent public or certified public accountants to Transmucosal
Technologies Ltd., letters dated the date hereof addressed to the
Underwriter, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included
in accountant's "comfort letters" to Underwriter, delivered according
to Statement of Auditing Standards No. 72 (or any successor bulletin),
with respect to the audited and unaudited financial statements and
certain financial information contained in the Registration Statement
and the Prospectus.
-15-
(b) Compliance with Registration Requirements; No Stop Order;
No Objection from NASD. For the period from and after effectiveness of
this Agreement and prior to the First Closing Date and, with respect to
the Optional Common Shares, the Second Closing Date:
(i) the Company shall have filed a Rule 462(b)
Registration Statement in the manner required by Rule 462(b)
of the Securities Act;
(ii) the Company shall have filed the Prospectus
with the Commission in the manner and within the time period
required by Rule 424(b) under the Securities Act;
(iii) no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such
purpose shall have been instituted or threatened by the
Commission; and
(iv) the NASD shall have raised no objection to the
fairness and reasonableness of the underwriting terms and
arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For
the period from and after the date of this Agreement and prior to the
Closing Date:
(i) in the judgment of the Underwriter there shall
not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any securities of the Company or any of
its subsidiaries by any "nationally recognized statistical
rating organization" as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(d) Opinion of Counsel for the Company. On each of the First
Closing Date and the Second Closing Date the Underwriter shall have
received the favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Company, dated as of such Closing Date, the form of which is
attached as Exhibit A.
(e) Opinion of Counsel for the Underwriter. On each of the
First Closing Date and the Second Closing Date the Underwriter shall
have received the favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Underwriter, dated as of such Closing Date, with respect to the
matters set forth in paragraphs (viii), (ix), (x) (xi) and (xiii) (with
respect to the caption "Description of Capital Stock" only) and the
next-to-last paragraph of Exhibit A.
(f) Officers' Certificate. On each of the First Closing Date
and the Second Closing Date the Underwriter shall have received a
written certificate executed by the Chairman of the Board, Chief
Executive Officer or President of the Company and the Chief Financial
Officer
-16-
or Chief Accounting Officer of the Company, dated as of such Closing
Date, to the effect set forth in subsections (b)(ii) and (c)(ii) of
this Section 5, and further to the effect that:
(i) for the period from and after the date of this
Agreement and prior to such Closing Date, there has not
occurred any Material Adverse Change; and
(ii) the representations, warranties and covenants of
the Company set forth in Section 1 of this Agreement are true
and correct with the same force and effect as though expressly
made on and as of such Closing Date.
(g) Bring-down Comfort Letter. On each of the First Closing
Date and the Second Closing Date the Underwriter shall have received
from Deloitte & Touche LLP, independent public or certified public
accountants for the Company, and KPMG, independent public or certified
public accountants to Transmucosal Technologies Ltd., letters dated
such date, in form and substance satisfactory to the Underwriter, to
the effect that they reaffirm the statements made in the letter
furnished by them pursuant to subsection (a) of this Section 5, except
that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the
Closing Date.
(h) Opinion of Intellectual Property Counsel and Regulatory
Counsel. On each of the First Closing Date and the Second Closing Date
the Underwriter shall have received the favorable opinion of
intellectual property counsel and regulatory counsel to the Company,
dated as of such Closing Date, in form and substance satisfactory to
the Underwriter and its counsel.
(i) Additional Documents. On each of the First Closing Date
and the Second Closing Date, the Underwriter and counsel for the
Underwriter shall have received such information, documents and
opinions as they may reasonably require for the purposes of enabling
them to pass upon the issuance and sale of the Common Shares as
contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the
conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Underwriter by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time prior
to the Second Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 4, Section 6, Section
8 and Section 9 shall at all times be effective and shall survive such
termination.
Section 6. Reimbursement of Underwriter's Expenses. If this
Agreement is terminated by the Underwriter pursuant to Section 5 or Section 10,
or if the sale to the Underwriter of the Common Shares on the Closing Date is
not consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Underwriter upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and the
-17-
offering and sale of the Common Shares, including but not limited to fees and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement
shall become effective upon the execution of this Agreement by the parties
hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriter. The Company agrees to
indemnify and hold harmless the Underwriter, its officers and employees, and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Underwriter or
such controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto filed with
the Commission), or the omission or alleged omission therefrom of 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 (iii) any act or
failure to act or any alleged act or failure to act by the Underwriter in
connection with, or relating in any manner to, the Common Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon any matter
covered by clause (i) or (ii) above, provided that the Company shall not be
liable under this clause (iii) to the extent that a court of competent
jurisdiction shall have determined by a final judgment that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by the Underwriter through its bad faith
or willful misconduct; and to reimburse the Underwriter and each such
controlling person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by Banc of America Securities LLC) as such
expenses are reasonably incurred by the Underwriter or such controlling person
in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that with respect to
any preliminary prospectus, the foregoing indemnity agreement shall not inure to
the benefit of the Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Common Shares, or any person controlling
the Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of
-18-
the Underwriter to such person, if required by law so to have been delivered, at
or prior to the written confirmation of the sale of the Common Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and
Officers. The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any loss, claim, damage, liability or expense, as incurred, to which the
Company, or any such director, officer or controlling person may become subject,
under the Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or arises out of or is based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein; and to
reimburse the Company, or any such director, officer or controlling person for
any and all expenses (including the reasonable fees and disbursements of counsel
chosen by the Company) reasonably incurred by the Company, or any such director,
officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The Company hereby acknowledges that the only information
that the Underwriter has furnished to the Company expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) are the statements set forth in the table in
the first paragraph and the disclosure in the second, seventh, ninth and tenth
paragraphs under the caption "Underwriting" in the Prospectus; and the
Underwriter confirms that such statements are correct. The indemnity agreement
set forth in this Section 8(b) shall be in addition to any liabilities that the
Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures.
Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this Section
8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume
-19-
the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (Banc of America Securities LLC in
the case of Section 8(b) and Section 9), representing the indemnified parties
who are parties to such action) or (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
Section 9. Contribution. If the indemnification provided for
in Section 8 is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand, and the Underwriter, on the other hand, from the offering of the Common
Shares pursuant to this Agreement or
-20-
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand, and the Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand, and the Underwriter, on the other hand, in connection with the
offering of the Common Shares pursuant to this Agreement shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
of the Common Shares pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriter, in each case as set forth on the front cover page of the Prospectus
bear to the aggregate initial public offering price of the Common Shares as set
forth on such cover. The relative fault of the Company on the one hand, and the
Underwriter, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand, or the Underwriter, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, the
Underwriter shall not be required to contribute any amount in excess of the
underwriting commissions received by the Underwriter in connection with the
Common Shares underwritten by it and distributed to the public. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each officer and employee of the Underwriter and each person, if any, who
controls the Underwriter within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company with
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.
Section 10. Termination of this Agreement. Prior to the First
Closing Date this Agreement may be terminated by the Underwriter by written
notice given to the Company if at any time (i) trading or quotation in any of
the Company's securities shall have been suspended or limited by the Commission
or by the Nasdaq National Market or trading in securities generally on either
the Nasdaq
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇ or the
New York Stock Exchange shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any of federal,
New York,
Delaware, or California authorities; (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial
change in United States' or international political, financial or economic
conditions, as in the reasonable judgment of the Underwriter is material and
adverse and makes it impracticable to market the Common Shares in the manner and
on the terms described in the Prospectus or to enforce contracts for the sale of
securities; (iv) in the judgment of the Underwriter there shall have occurred
any Material Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
in the reasonable judgment of the Underwriter may interfere materially with the
conduct of the business and operations of the Company regardless of whether or
not such loss shall have been insured. Any termination pursuant to this Section
10 shall be without liability on the part of (a) the Company to the Underwriter,
except that the Company shall be obligated to reimburse the expenses of the
Underwriter pursuant to Sections 4 and 6 hereof, (b) the Underwriter to the
Company or (c) of any party hereto to any other party except that the provisions
of Section 8 and Section 9 shall at all times be effective and shall survive
such termination. If this Agreement is terminated prior to the First Closing
Date, the provisions of Section 3(k) shall be in no further force and effect.
Section 11. Representations and Indemnities to Survive
Delivery. The respective indemnities, agreements, representations, warranties
and other statements of the Company, of its officers and of the Underwriter set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter
or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Common Shares sold hereunder and any termination of this Agreement.
Section 12. Notices. All communications hereunder shall be in
writing and shall be mailed, hand delivered or telecopied and confirmed to the
parties hereto as follows:
If to the Underwriter:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Head of Equity Capital Markets
If to the Company:
Atrix Laboratories, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-22-
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
Section 13. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto, including any substitute
Underwriter pursuant to Section 10 hereof, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 8 and
Section 9, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Common Shares as such from the Underwriter merely
by reason of such purchase.
Section 14. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section 15. (a) Governing Law Provisions. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(b) Consent to Jurisdiction. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City and County of
New
York or the courts of the State of
New York in each case located in the City and
County of
New York (collectively, the "Specified Courts"), and each party
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective service of process for any suit, action or other proceeding brought in
any such court. The parties irrevocably and unconditionally waive any objection
to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such suit, action or other proceeding brought in any
such court has been brought in an inconvenient forum.
Section 16. General Provisions. This Agreement constitutes the
entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral
-23-
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom
the condition is meant to benefit. The Table of Contents and the Section
headings herein are for the convenience of the parties only and shall not affect
the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a
sophisticated business person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
-24-
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
ATRIX LABORATORIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Chief Financial Officer
The foregoing
Underwriting Agreement is hereby confirmed and
accepted by the Underwriter in
New York, New York as of the date first above
written.
BANC OF AMERICA SECURITIES LLC
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
-25-
EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to
Section 5(d) of the
Underwriting Agreement.
References to the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware
and has full corporate power and authority to own, lease and
operate its properties, and to enter into and perform its
obligations under the
Underwriting Agreement (other than
performance by the Company of its obligations under the
indemnification section of the
Underwriting Agreement, as to
which we express no opinion).
(b) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in the State of
Colorado and in each jurisdiction in which the conduct of its
business requires such qualification, except for any such
jurisdiction where the failure to be so qualified or in good
standing would not, individually or in the aggregate, result
in a Material Adverse Change.
(c) Each significant subsidiary of the Company (as defined in Rule
405 under the Act) has been duly organized and is validly
existing and in good standing under the laws of the
jurisdiction of its organization, and has corporate power and
authority to own, lease and operate its properties and, to our
knowledge, is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification
is required, except for such jurisdictions where the failure
to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse
Change. It is understood that we are not giving, and we have
not been requested to give, an opinion regarding the due
organization, valid existence or good standing of any
subsidiaries that are not organized under the laws of a
jurisdiction within the United States.
(d) All of the issued and outstanding capital stock of each such
significant subsidiary of the Company has been duly authorized
and validly issued, is fully paid and nonassessable and,
except with respect to Transmucosal Technologies, Ltd., is
owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance or, to our knowledge, any pending or threatened
claim.
(e) No preemptive rights of, or rights of refusal in favor of,
stockholders exist with respect to the Shares, or the issuance
and sale thereof, by operation of law or pursuant to the
charter or bylaws of the Company.
(f) The
Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
A-1
(g) The Shares to be purchased by the Underwriter from the Company
have been duly authorized for issuance and sale pursuant to
the
Underwriting Agreement and, when issued and delivered by
the Company pursuant to the Underwriting Agreement against
payment of the consideration set forth therein, will be
validly issued, fully paid and nonassessable.
(h) All outstanding shares of the Company's Common Stock, $.001
par value per share, have been duly authorized, validly issued
and are fully paid and nonassessable.
(i) The execution and delivery of the Underwriting Agreement by
the Company and the performance by the Company of its
obligations thereunder (other than performance by the Company
of its obligations under the indemnification section of the
Underwriting Agreement, as to which we express no opinion), do
not violate or result in a violation of the charter or bylaws
of the Company or any subsidiary, and to our knowledge, will
not result in violation of any law, administrative regulation
or administrative or court decree applicable to the Company or
any subsidiary of the Company, and, to our knowledge, will not
constitute a material breach of the terms, conditions or
provisions of or constitute a default under any contract,
undertaking, indenture or other agreement by which the Company
is now bound or to which it is now a party. For purposes of
the opinion in this paragraph (i), we exclude from the scope
of such opinion any potential violation of financial covenants
contained in such agreements, and as to any such agreements
which by their terms are or may be governed by the laws of a
jurisdiction other than the State of Colorado, we assume that
such agreements are governed by the laws of the State of
Colorado.
(j) The form of certificate used to evidence the Common Stock
complies with all applicable requirements of the charter and
by-laws of the Company and the General Corporation Law of the
State of Delaware.
(k) The Registration Statement has been declared effective by the
Commission under the Act and, to our knowledge, no stop order
suspending the effectiveness thereof has been issued or any
proceedings for that purpose have been instituted or are
pending or threatened under the Act. Any required filing of
the Prospectus and any supplement thereto pursuant to Rule
424(b) under the Act has been made in the manner and within
the time period required by such Rule 424(b).
(l) The Registration Statement, including each amendment thereto,
as of the effective date thereof, complied as to form in all
material respects with the applicable requirements of the Act
(except as to the financial statements, supporting schedules,
footnotes and other financial and statistical information
included therein, as to which we express no opinion).
(m) Each document filed pursuant to the Exchange Act (other than
the financial statements, supporting schedules, footnotes and
other financial and statistical information included therein,
as to which we express no opinion) and incorporated or deemed
to be incorporated by reference in the Prospectus complied
when so filed as to form in all material respects with the
applicable requirements of the Exchange Act.
A-2
(n) To our knowledge, there are no contracts or other documents of
a character required to be described or referred to in the
Prospectus or to be filed as an exhibit to the Registration
Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and
the descriptions thereof and references thereto are correct in
all material respects.
(o) No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental
authority or agency, is required for the Company's execution,
delivery and performance of the Underwriting Agreement and
consummation of the transactions contemplated thereby and by
the Prospectus, except as required under the Act, applicable
state securities or blue sky laws and from the NASD.
(p) To our knowledge, there are no legal or governmental actions,
suits or proceedings pending or threatened which are required
to be disclosed in the Prospectus, other than those disclosed
therein.
(q) The Company is not, and after receipt of payment for the
Shares will not be, an "investment company" with the meaning
of the Investment Company Act of 1940, as amended.
(r) To our knowledge, there are no persons with registration or
similar rights to have any equity or debt securities
registered for sale under the Registration Statement or
included in the offering contemplated by the Underwriting
Agreement except for such rights as have been duly waived.
(s) To our knowledge, neither the Company nor its subsidiaries are
in violation of their respective charters or bylaws.
(t) The Shares have been approved for listing on the Nasdaq
National Market.
In addition, we have participated in conferences with your
representatives and with representatives of the Company and its accountants
concerning the Registration Statement and the Prospectus and have considered the
matters required to be stated therein and the statements contained therein,
although we have not independently verified the accuracy, completeness or
fairness of such statements. Based upon and subject to the foregoing, nothing
has come to our attention that leads us to believe that the Registration
Statement, at the time it became effective, 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, or that the
Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b)
under the Act or as of the date hereof, 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, in light of the circumstances under
which they were made, not misleading (it being understood that we have not been
requested to and do not make any comment in this paragraph with respect to the
financial statements, supporting schedules, footnotes, or other financial or
statistical information contained in the Registration Statement or Prospectus or
any amendments or supplements thereto).
A-3
EXHIBIT B
FORM OF
LOCK-UP AGREEMENT
November , ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: Atrix Laboratories, Inc.
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of
certain shares of common stock, par value $.001 per share ("Common Stock") of
Atrix Laboratories, Inc. (the "Company"), or securities convertible into or
exchangeable or exercisable for Common Stock. The Company proposes to carry out
a public offering of Common Stock (the "Offering") pursuant to a Prospectus
Supplement to the Company's Prospectus dated June 5, 2001, for which you will
act as the underwriter. The undersigned recognizes that the Offering will be of
benefit to the undersigned and will benefit the Company by, among other things,
raising additional capital for its operations. The undersigned acknowledges that
you are relying on the representations and agreements of the undersigned
contained in this letter in carrying out the Offering and in entering into
underwriting arrangements with the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby
agrees that the undersigned will not, without the prior written consent of Banc
of America Securities LLC (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, or otherwise dispose of any shares of
Common Stock, options or warrants to acquire shares of Common Stock, or
securities exchangeable or exercisable for or convertible into shares of Common
Stock currently or hereafter owned either of record or beneficially (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by the
undersigned, (otherwise than (i) as a bona fide gift or gifts, provided the
donee or donees thereof agree in writing to be bound by the terms of this
lock-up agreement, or (ii) as a distribution to limited partners or stockholders
of the undersigned, provided that the distributees thereof agree in writing to
be bound by the terms of this lock-up agreement), or publicly announce the
undersigned's intention to do any of the foregoing, for a period of 90 days
after the date of the Prospectus Supplement relating to the Offering. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of shares
of Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock held by the undersigned except in compliance with the foregoing
restrictions.
B-1
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities Act of any
Common Stock owned either of record or beneficially by the undersigned,
including any rights to receive notice of the Offering.
This agreement is irrevocable and will be binding on the
undersigned and the respective successors, heirs, personal representatives, and
assigns of the undersigned.
Very truly yours,
---------------------------------------------------
Printed Name of Holder
By:
------------------------------------------------
Signature
---------------------------------------------------
Printed Name of Person Signing
(and indicate capacity of person signing if
signing as custodian, trustee, or on behalf
of an entity)
B-2
EXHIBIT C
SUBSIDIARIES
Atrix Laboratories GmbH Governed under the laws of Germany
Atrix Laboratories Limited Governed under the laws of England and Wales
ViroTex Corporation Delaware corporation (currently void with the
Secretary of State of Delaware) and qualified as a
foreign corporation in the State of Texas
Transmucosal Technologies International Governed under the laws of Bermuda (Joint Venture of
Services, Ltd. (f/k/a Atrix Newco, Limited) Atrix and Elan International Services, Ltd.)
C-1