EXHIBIT 1.1
1,000,000 SHARES
ENZO BIOCHEM, INC.
COMMON STOCK
PLACEMENT AGENT AGREEMENT
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February 2, 2007
LAZARD CAPITAL MARKETS LLC
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Dear Sirs:
1. INTRODUCTION. ENZO BIOCHEM, INC., a New York corporation (the
"COMPANY"), proposes to issue and sell to the purchaser, pursuant to the terms
of this Placement Agent Agreement (this "AGREEMENT") and the Subscription
Agreement in the form of EXHIBIT A attached hereto (the "SUBSCRIPTION
AGREEMENT") entered into with the purchaser identified therein (the
"PURCHASER"), up to an aggregate of 1,000,000 shares of common stock, $0.01 par
value per share (the "COMMON STOCK") of the Company. The aggregate of 1,000,000
shares so proposed to be sold is hereinafter referred to as the "STOCK." The
Company hereby confirms its agreement with Lazard Capital Markets LLC to act as
Placement Agent ("LCM," or the "PLACEMENT AGENT") in accordance with the terms
and conditions hereof.
2. AGREEMENT TO ACT AS PLACEMENT AGENT; PLACEMENT OF SECURITIES. On
the basis of the representations, warranties and agreements of the Company
herein contained, and subject to all the terms and conditions of this Agreement:
2.1 The Company hereby authorizes the Placement Agent to act
as its exclusive agent to solicit offers for the purchase of all or part
of the Stock from the Company in connection with the proposed offering
of the Stock (the "OFFERING"). Until the Closing Date (as defined in
SECTION 4 hereof), the Company shall not, without the prior written
consent of the Placement Agent, solicit or accept offers to purchase
Stock otherwise than through the Placement Agent. LCM may utilize the
expertise of Lazard Freres & Co. LLC in connection with LCM's placement
agent activities.
2.2 The Placement Agent agrees, as agent of the Company, to
use its commercially reasonable efforts to solicit offers to purchase
the Stock from the Company on the terms and subject to the conditions
set forth in the Prospectus (as defined below). The Placement Agent
shall use commercially reasonable efforts to assist the Company in
obtaining performance by the Purchaser whose offer to purchase Stock has
been solicited by the Placement Agent and accepted by the Company, but
the Placement Agent shall not, except as otherwise provided in this
Agreement, be obligated to disclose the identity of any potential
purchaser or have any liability to the Company in the event such
purchase is not consummated for any reason. Under no circumstances will
the Placement Agent be obligated to underwrite or purchase any Stock for
its own account and, in soliciting purchases of Stock, the Placement
Agent shall act solely as the Company's agent and not as principal.
Notwithstanding the foregoing and except as otherwise provided in
SECTION 2.3, it is understood and agreed that the Placement Agent (or
its affiliates) may, solely at its discretion and without any obligation
to do so, purchase Stock as principal on the same terms as the
Purchaser.
2.3 Subject to the provisions of this SECTION 2, offers for
the purchase of Stock may be solicited by the Placement Agent as agent
for the Company at such times and in such amounts as the Placement Agent
deems advisable. The Placement Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Stock received
by it as agent of the Company. The Company shall have the sole right to
accept offers to purchase the Stock and may reject any such offer, in
whole or in part. The Placement Agent shall have the right, in its
discretion reasonably exercised, without notice to the Company, to
reject any offer to purchase Stock received by it, in whole or in part,
and any such rejection shall not be deemed a breach of its agreement
contained herein.
2.4 The Stock is being sold to the Purchaser at a price of
$15.00 per share. The purchase of the Stock by the Purchaser shall be
evidenced by the execution of Subscription Agreement by the Purchaser
and the Company.
2.5 As compensation for services rendered, on the Closing
Date (as defined in SECTION 4 hereof), the Company shall pay to the
Placement Agent by wire transfer of immediately available funds to an
account or accounts designated by the Placement Agent, an aggregate
amount equal to five percent (5.0%) of the gross proceeds received by
the Company from the sale of the Stock on such Closing Date.
2.6 No Stock which the Company has agreed to sell pursuant
to this Agreement shall be deemed to have been purchased and paid for,
or sold by the Company, until such Stock shall have been delivered to
the Purchaser thereof against payment by such Purchaser. If the Company
shall default in its obligations to deliver Stock to a Purchaser whose
offer it has accepted, the Company shall indemnify and hold the
Placement Agent harmless against any loss, claim, damage or expense
arising from or as a result of such default by the Company in accordance
with the procedures set forth in Section 8(c) herein.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Placement Agent and the
Purchaser that:
(a) The Company has prepared and filed in conformity with
the requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and published rules and regulations thereunder (the
"RULES AND REGULATIONS") adopted by the Securities and Exchange
Commission (the "COMMISSION") a "shelf" Registration Statement (as
hereinafter defined) on Form S-3 (File No. 333-138417), which became
effective as of December 8, 2006 (the "EFFECTIVE DATE"), including a
base prospectus relating to the Stock (the "BASE PROSPECTUS"), and such
amendments and supplements thereto as may have been required to the date
of this Agreement. The term "REGISTRATION STATEMENT" as used in this
Agreement means the registration statement (including all exhibits,
financial schedules and all documents and information deemed to be a
part of the Registration Statement pursuant to Rule 430A under the
Securities Act), as amended and/or supplemented to the date of this
Agreement, including the Base Prospectus. The Registration Statement is
effective under the Securities Act and no stop order preventing or
suspending the effectiveness of the Registration Statement or suspending
or preventing the use of the Prospectus has been issued by the
Commission and no proceedings for that purpose have been instituted or,
to the knowledge of the Company, are threatened by the Commission. The
Company, if required by the Rules and Regulations of the Commission,
will file the Prospectus (as defined below), with the Commission
pursuant to Rule 424(b) of the Rules and Regulations. The term
"PROSPECTUS" as used in this Agreement means the Prospectus, in the form
in which it is to be filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations, or, if the Prospectus is not to be filed
with the Commission pursuant to Rule 424(b), the Prospectus in the form
included as part of the Registration Statement as of the Effective Date,
except that if any revised prospectus or
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prospectus supplement shall be provided to the Placement Agent by the
Company for use in connection with the offering and sale of the Stock
which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the
Company pursuant to Rule 424(b) of the Rules and Regulations), the term
"PROSPECTUS" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Placement Agent for such use. Any preliminary prospectus
or prospectus subject to completion included in the Registration
Statement or filed with the Commission pursuant to Rule 424 under the
Securities Act is hereafter called a "PRELIMINARY PROSPECTUS." Any
reference herein to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), on or before the last to occur of the
Effective Date, the date of the Preliminary Prospectus, or the date of
the Prospectus, and any reference herein to the terms "amend,"
"amendment," or "supplement" with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include (i) the filing of any document under the Exchange Act after
the Effective Date, the date of such Preliminary Prospectus or the date
of the Prospectus, as the case may be, which is incorporated by
reference and (ii) any such document so filed. If the Company has filed
an abbreviated registration statement to register additional Stock
pursuant to Rule 462(b) under the Rules (the "462(B) REGISTRATION
STATEMENT"), then any reference herein to the Registration Statement
shall also be deemed to include such 462(b) Registration Statement.
(b) As of the Applicable Time (as defined below) and as of
the Closing Date, neither (i) any General Use Free Writing Prospectus
(as defined below) issued at or prior to the Applicable Time, and the
Pricing Prospectus (as defined below) and the information included on
SCHEDULE A hereto, all considered together (collectively, the "GENERAL
DISCLOSURE PACKAGE"), nor (ii) any individual Limited Use Free Writing
Prospectus (as defined below), when considered together with the General
Disclosure Package, included or will include, any untrue statement of a
material fact or omitted or as of the Closing Date will omit, to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to information contained in or omitted from any Issuer
Free Writing Prospectus, in reliance upon, and in conformity with,
written information furnished to the Company by the Placement Agent
specifically for inclusion therein, which information the parties hereto
agree is limited to the Placement Agent's Information (as defined in
SECTION 17). As used in this PARAGRAPH (B) and elsewhere in this
Agreement:
"APPLICABLE TIME" means 2:00 P.M., New York time, on the date of this
Agreement.
"PRICING PROSPECTUS" means the Preliminary Prospectus, if any, and the
Base Prospectus, each as amended and supplemented immediately prior to
the Applicable Time, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof.
"ISSUER FREE WRITING PROSPECTUS" means any "issuer free writing
prospectus," as defined in Rule 433(h) under the Securities Act relating
to the Stock in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company's records pursuant to Rule 433(g) under the Securities Act.
"GENERAL USE FREE WRITING PROSPECTUS" means any Issuer Free Writing
Prospectus that is identified on SCHEDULE A to this Agreement.
"LIMITED USE FREE WRITING PROSPECTUSES" means any Issuer Free Writing
Prospectus that is not a General Use Free Writing Prospectus.
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(c) No order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus relating to the Offering has been issued by the Commission,
and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act has been instituted or threatened by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Securities Act and the
Rules and Regulations, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to
information contained in or omitted from any Preliminary Prospectus, in
reliance upon, and in conformity with, written information furnished to
the Company by the Placement Agent specifically for inclusion therein,
which information the parties hereto agree is limited to the Placement
Agent's Information (as defined in SECTION 17).
(d) At the time the Registration Statement became effective,
at the date of this Agreement and at the Closing Date, the Registration
Statement conformed and will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and did
not and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus, at the time
the Prospectus was issued and at the Closing Date, conformed and will
conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the foregoing representations and warranties in this
PARAGRAPH (D) shall not apply to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by the
Placement Agent specifically for inclusion therein, which information
the parties hereto agree is limited to the Placement Agent's Information
(as defined in SECTION 17).
(e) Each Issuer Free Writing Prospectus, if any, as of its
issue date and at all subsequent times through the completion of the
public offer and sale of the Stock or until any earlier date that the
Company notified or notifies the Placement Agent as described in SECTION
5(E), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in
the Registration Statement, Pricing Prospectus or the Prospectus,
including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof that has not been
superseded or modified, or includes an untrue statement of a material
fact or omitted or would omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances prevailing at the subsequent time, not
misleading. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by the
Placement Agent specifically for inclusion therein, which information
the parties hereto agree is limited to the Placement Agent's Information
(as defined in SECTION 17).
(f) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and none of such documents contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or
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are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(g) The Company has not, directly or indirectly, distributed
and will not distribute any offering material in connection with the
Offering other than any Preliminary Prospectus, the Prospectus and other
materials, if any, permitted under the Securities Act and consistent
with SECTION 5(B) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses, if any, in the time and manner
required under Rule 433(d) under the Securities Act.
(h) The Company and each of its Subsidiaries (as defined
below) has been duly organized and is validly existing as a corporation
or other legal entity in good standing (or the foreign equivalent
thereof) under the laws of its respective jurisdiction of organization.
The Company and each of its Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation or other legal
entity in each jurisdiction in which its respective ownership or lease
of property or the conduct of its respective business requires such
qualification and has all power and authority (corporate or other)
necessary to own or hold its respective properties and to conduct the
business in which it is engaged, except where the failure to so qualify
or have such power or authority (i) would not have, singularly or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, assets or business of the Company and
its Subsidiaries, or (ii) impair in any material respect the ability of
the Company to perform its obligations under this Agreement or to
consummate any transactions contemplated by the Agreement, the General
Disclosure Package or the Prospectus (any such effect as described in
clauses (i) or (ii), a "MATERIAL ADVERSE EFFECT"). The Company owns or
controls, directly or indirectly, only the following corporations,
partnerships, limited liability partnerships, limited liability
companies, associations or other entities: Enzo Clinical Labs, Inc., a
New York corporation, Enzo Life Sciences, Inc., a New York corporation,
Enzo Therapeutics, Inc., a New York corporation and Enzo Realty, LLC, a
New York limited liability company, each, a "SUBSIDIARY" and together
"SUBSIDIARIES".
(i) The Company has the full right, power and authority to
enter into this Agreement and the Subscription Agreement and to perform
and to discharge its obligations hereunder and thereunder; and each of
this Agreement and the Subscription Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid and
binding obligation of the Company enforceable in accordance with its
terms.
(j) The Stock to be issued and sold by the Company to the
Purchaser hereunder and under the Subscription Agreement has been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein and the Subscription Agreement, will be duly
and validly issued, fully paid and nonassessable and free of any
preemptive or similar rights and will conform to the description thereof
contained in the General Disclosure Package and the Prospectus.
(k) The Company has an authorized capitalization as set
forth in the Pricing Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, have been issued in compliance with
federal and state securities laws, and conform to the description
thereof contained in the General Disclosure Package and the Prospectus.
As of December 31, 2006, there were 35,651,559 shares of Common Stock
outstanding and no shares of Preferred Stock, par value $0.01 of the
Company issued and outstanding. As of December 31, 2006, the Company
held
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569,763 shares of Common Stock in its treasury, and 2,863,213 shares of
Common Stock were issuable upon the exercise of all options, warrants
and convertible securities outstanding as of such date. Since such date,
the Company has not issued any securities, other than Common Stock of
the Company issued pursuant to the exercise of stock options previously
outstanding under the Company's stock option plans or the issuance of
restricted Common Stock pursuant to employee stock purchase plans. None
of the outstanding shares of Common Stock was 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 shares of capital stock, 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 described above or accurately described in
the General Disclosure Package. The description of the Company's stock
option, stock bonus and other stock plans or arrangements, and the
options or other rights granted thereunder, as described in the General
Disclosure Package and the Prospectus, accurately and fairly present the
information required to be shown with respect to such plans,
arrangements, options and rights.
(l) All the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable and, except to the extent set forth in the General
Disclosure Package or the Prospectus, are owned by the Company directly
or indirectly through one or more wholly-owned subsidiaries, free and
clear of any claim, lien, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party.
(m) The execution, delivery and performance of this
Agreement and the Subscription Agreement by the Company, the issue and
sale of the Stock by the Company and the consummation of the
transactions contemplated hereby and thereby will not (with or without
notice or lapse of time or both) conflict with or result in a breach or
violation of any of the terms or provisions of, constitute a default
under, give rise to any right of termination or other right or the
cancellation or acceleration of any right or obligation or loss of a
benefit under, or give rise to the creation or imposition of any lien,
encumbrance, security interest, claim or charge upon any property or
assets of the Company or any Subsidiary pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is subject,
nor will such actions result in any violation of the provisions of the
charter or by-laws (or analogous governing instruments, as applicable)
of the Company or any of its Subsidiaries or any law, statute, rule,
regulation, judgment, order or decree of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the
Company or any of its Subsidiaries or any of their properties or assets.
(n) Except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws, the National
Association of Securities Dealers, Inc. and the New York Stock Exchange
(the "NYSE") in connection with the offering and sale of the Stock by
the Company, no consent, approval, authorization or order of, or filing,
qualification or registration with, any court or governmental agency or
body, foreign or domestic, which has not been made, obtained or taken
and is not in full force and effect, is required for the execution,
delivery and performance of this Agreement and the Subscription
Agreement by the Company, the offer or sale of the Stock or the
consummation of the transactions contemplated hereby or thereby.
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(o) Ernst & Young LLP, who have certified certain financial
statements and related schedules included or incorporated by reference
in the Registration Statement, the General Disclosure Package and the
Prospectus, and have audited the Company's internal control over
financial reporting and management's assessment thereof, is an
independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and the Public Company
Accounting Oversight Board (United States) (the "PCAOB"). Ernst & Young
LLP have not been engaged by the Company to perform any "prohibited
activities" (as defined in Section 10A of the Exchange Act).
(p) The financial statements, together with the related
notes and schedules, included or incorporated by reference in the
General Disclosure Package, the Prospectus and in the Registration
Statement fairly present in all material respects the financial position
and the results of operations and changes in financial position of the
Company and its consolidated subsidiaries and other consolidated
entities at the respective dates or for the respective periods therein
specified. Such statements and related notes and schedules have been
prepared in accordance with the generally accepted accounting principles
in the United States ("GAAP") applied on a consistent basis throughout
the periods involved except as may be set forth in the related notes
included or incorporated by reference in the General Disclosure Package.
The financial statements, together with the related notes and schedules,
included or incorporated by reference in the General Disclosure Package
and the Prospectus comply in all material respects with the Securities
Act, the Exchange Act, and the Rules and Regulations and the rules and
regulations under the Exchange Act. No other financial statements or
supporting schedules or exhibits are required by the Securities Act or
the Rules and Regulations to be described, or included or incorporated
by reference in the Registration Statement, the General Disclosure
Package or the Prospectus. There is no pro forma or as adjusted
financial information which is required to be included in the
Registration Statement, the General Disclosure Package, or and the
Prospectus or a document incorporated by reference therein in accordance
with the Securities Act and the Rules and Regulations which has not been
included or incorporated as so required. The pro forma and pro forma as
adjusted financial information and the related notes included or
incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus have been properly compiled and
prepared in accordance with the applicable requirements of the
Securities Act and the Rules and Regulations and present fairly the
information shown therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(q) Neither the Company nor any of its Subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the General Disclosure Package,
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the General
Disclosure Package; and, since such date, there has not been any change
in the capital stock or long-term debt of the Company or any of its
Subsidiaries, or any material adverse changes, or any development
involving a prospective material adverse change, in or affecting the
business, assets, general affairs, management, financial position,
prospects, stockholders' equity or results of operations of the Company
and its Subsidiaries, otherwise than as set forth or contemplated in the
General Disclosure Package.
(r) Except as set forth in the General Disclosure Package,
there is no legal or governmental action, suit, claim or proceeding
pending to which the Company or any of its Subsidiaries is a party or of
which any property or assets of the Company or any of its Subsidiaries
is the subject which is required to be described in the Registration
Statement, the General Disclosure Package or the Prospectus or a
document incorporated by reference therein
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and is not described therein, or which, singularly or in the aggregate,
if determined adversely to the Company or any of its Subsidiaries, could
have a Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(s) Neither the Company nor any of its Subsidiaries is in
(i) violation of its charter or by-laws (or analogous governing
instrument, as applicable), (ii) default in any respect, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
property or assets is subject or (iii) violation in any respect of any
law, ordinance, governmental rule, regulation or court order, decree or
judgment to which it or its property or assets may be subject except, in
the case of clauses (ii) and (iii) of this paragraph (s), for any
violations or defaults which, singularly or in the aggregate, would not
have a Material Adverse Effect.
(t) The Company and each of its Subsidiaries possess all
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate local, state,
federal or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of its respective properties or the conduct
of its respective businesses as described in the General Disclosure
Package and the Prospectus (collectively, the "GOVERNMENTAL PERMITS")
except where any failures to possess or make the same, singularly or in
the aggregate, would not have a Material Adverse Effect. The Company and
its Subsidiaries is in compliance with all such Governmental Permits;
all such Governmental Permits are valid and in full force and effect,
except where the validity or failure to be in full force and effect
would not, singularly or in the aggregate, have a Material Adverse
Effect. All such Governmental Permits are free and clear of any
restriction or condition that are in addition to, or materially
different from those normally applicable to similar licenses,
certificates, authorizations and permits. Neither the Company nor any
subsidiary has received notification of any revocation or modification
(or proceedings related thereto) of any such Governmental Permit and the
Company has no reason to believe that any such Governmental Permit will
not be renewed.
(u) Neither the Company nor any of its Subsidiaries is or,
after giving effect to the offering of the Stock and the application of
the proceeds thereof as described in the General Disclosure Package and
the Prospectus, will become an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(v) Neither the Company, its Subsidiaries nor, to the
Company's knowledge, any of the Company's or its Subsidiaries' officers,
directors or affiliates has taken or will take, directly or indirectly,
any action designed or intended to stabilize or manipulate the price of
any security of the Company, or which caused or resulted in, or which
might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the
Company.
(w) The Company and its Subsidiaries own or possess the
right to use all patents, trademarks, trademark registrations, service
marks, service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, software, databases, know-how, Internet domain names, trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, and other intellectual
property (collectively, "INTELLECTUAL PROPERTY") necessary to carry on
their respective businesses as currently conducted, and as proposed to
be conducted and
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described in the General Disclosure Package and the Prospectus, and the
Company is not aware of any claim to the contrary or any challenge by
any other person to the rights of the Company and its Subsidiaries with
respect to the foregoing except for those that could not have a Material
Adverse Effect. The Intellectual Property licenses described in the
General Disclosure Package and the Prospectus are valid, binding upon,
and enforceable by or against the parties thereto in accordance to their
terms. The Company and each of its Subsidiaries have complied in all
material respects with, and are not, to the Company's knowledge, in
breach nor have received any asserted or threatened claim of breach of,
any Intellectual Property license, and the Company has no knowledge of
any breach or anticipated breach by any other person to any Intellectual
Property license. The Company's and each of its Subsidiaries' businesses
as now conducted and as proposed to be conducted do not and will not, to
the Company's knowledge, infringe or conflict with any patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses or other Intellectual Property or franchise right of any
person. No claim has been received by the Company that makes against the
Company or any of its Subsidiaries an allegation of infringement by the
Company or any of its Subsidiaries of any patent, trademark, service
▇▇▇▇, trade name, copyright, trade secret, license in or other
intellectual property right or franchise right of any person. The
Company and each of its Subsidiaries have taken all reasonable steps to
protect, maintain and safeguard its rights in all Intellectual Property,
including the execution of appropriate nondisclosure and confidentiality
agreements. The consummation of the transactions contemplated by this
Agreement will not, to the Company's knowledge, result in the loss or
impairment of or payment of any additional amounts with respect to, nor
require the consent of any other person in respect of, the Company's or
any of its Subsidiaries' right to own, use, or hold for use any of the
Intellectual Property as owned, used or held for use in the conduct of
the businesses as currently conducted. The Company and each of its
Subsidiaries has at all times taken reasonable steps to comply with all
applicable laws relating to privacy, data protection, and the collection
and use of personal information collected, used, or held for use by the
Company and any of its Subsidiaries in the conduct of the Company's and
its Subsidiaries businesses. No claims have been received by the Company
or any of its Subsidiaries alleging a violation of any person's privacy
or personal information or data rights and the consummation of the
transactions contemplated hereby will not, to the Company's knowledge,
breach or otherwise cause any violation of any law related to privacy,
data protection, or the collection and use of personal information
collected, used, or held for use by the Company or any of its
Subsidiaries in the conduct of the Company's or any of its Subsidiaries'
businesses. The Company and each of its Subsidiaries takes reasonable
measures to ensure that such information is protected against
unauthorized access, use, modification, or other misuse.
(x) Except as set forth in the General Disclosure Package,
there is no legal or governmental action, suit, claim or proceeding
pending to which the Company or any of its Subsidiaries is a party or of
which any property or assets of the Company or any of its Subsidiaries
is the subject, including any proceeding before the United States Food
and Drug Administration of the U.S. Department of Health and Human
Services ("FDA") or comparable federal, state, local or foreign
governmental bodies (it being understood that the interaction between
the Company and the FDA and such comparable governmental bodies relating
to the clinical development and product approval process shall not be
deemed proceedings for purposes of this representation), which is
required to be described in the Registration Statement, the General
Disclosure Package or the Prospectus or a document incorporated by
reference therein and is not described therein, or which, singularly or
in the aggregate, if determined adversely to the Company or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse
Effect or prevent the consummation of the transactions contemplated
hereby; and to the Company's Knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others. The Company and its Subsidiaries is in compliance with all
applicable federal, state, local and foreign laws, regulations, orders
and decrees governing its
9
business as prescribed by the FDA, or any other federal, state or
foreign agencies or bodies with jurisdiction over the activities of the
Company or its Subsidiaries engaged in the regulation of pharmaceuticals
or biohazardous substances or materials, except where noncompliance
would not, singly or in the aggregate, have a Material Adverse Effect.
All preclinical and clinical studies conducted by or on behalf of the
Company or its Subsidiaries to support approval for commercialization of
the Company's or its Subsidiaries' products have been conducted by the
Company or its Subsidiaries, or to the Company's knowledge by third
parties, in compliance with all applicable federal, state, provincial or
foreign laws, rules, orders and regulations, except for such failure or
failures to be in compliance as could not reasonably be expected to
have, singly or in the aggregate, a Material Adverse Effect.
(y) The Company and each of its Subsidiaries has good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real or personal property which are material
to the business of the Company and its Subsidiaries, free and clear of
all liens, encumbrances, security interests, claims and defects that do
not, singularly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its Subsidiaries; and all of
the leases and subleases material to the business of the Company and its
Subsidiaries, and under which the Company or any of its Subsidiaries
holds properties described in the General Disclosure Package and the
Prospectus, are in full force and effect, and neither the Company nor
any Subsidiary has received any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or
any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary to
the continued possession of the leased or subleased premises under any
such lease or sublease.
(z) No labor disturbance by the employees of the Company or
any of its Subsidiaries exists or, to the best of the Company's
knowledge, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or its
Subsidiaries' principal suppliers, manufacturers, customers or
contractors, that could reasonably be expected, singularly or in the
aggregate, to have a Material Adverse Effect. The Company is not aware
that any key employee or significant group of employees of the Company
or any Subsidiary plans to terminate employment with the Company or any
such Subsidiary.
(aa) No "prohibited transaction" (as defined in Section 406
of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "CODE")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect to
which the thirty (30)-day notice requirement under Section 4043 of ERISA
has been waived) has occurred or could reasonably be expected to occur
with respect to any employee benefit plan of the Company or any of its
Subsidiaries which could, singularly or in the aggregate, have a
Material Adverse Effect. Each employee benefit plan of the Company or
any of its Subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code. The Company and its
Subsidiaries have not incurred and could not reasonably be expected to
incur liability under Title IV of ERISA with respect to the termination
of, or withdrawal from, any pension plan (as defined in ERISA). Each
pension plan for which the Company or any of its Subsidiaries would have
any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified, and nothing has occurred, whether by action or
by failure to act, which could, singularly or in the aggregate, cause
the loss of such qualification.
(bb) The Company and its Subsidiaries are in compliance with
all foreign, federal, state and local rules, laws and regulations
relating to the use, treatment, storage and disposal of
10
hazardous or toxic substances or waste and protection of health and
safety or the environment which are applicable to their businesses
("ENVIRONMENTAL LAWS"), except where the failure to comply would not,
singularly or in the aggregate, have a Material Adverse Effect. There
has been no storage, generation, transportation, handling, treatment,
disposal, discharge, emission, or other release of any kind of toxic or
other wastes or other hazardous substances by, due to, or caused by the
Company or any of its Subsidiaries (or, to the Company's knowledge, any
other entity for whose acts or omissions the Company or any of its
Subsidiaries is or may otherwise be liable) upon any of the property now
or previously owned or leased by the Company or any of its Subsidiaries,
or upon any other property, in violation of any law, statute, ordinance,
rule, regulation, order, judgment, decree or permit or which would,
under any law, statute, ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any
liability, except for any violation or liability which would not have,
singularly or in the aggregate with all such violations and liabilities,
a Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company has
knowledge, except for any such disposal, discharge, emission, or other
release of any kind which would not have, singularly or in the aggregate
with all such discharges and other releases, a Material Adverse Effect.
In the ordinary course of business, the Company and its Subsidiaries
conduct periodic reviews of the effect of Environmental Laws on their
business and assets, in the course of which they identify and evaluate
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 Governmental Permits
issued thereunder, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such
reviews, the Company and its Subsidiaries have reasonably concluded that
such associated costs and liabilities would not have, singularly or in
the aggregate, a Material Adverse Effect.
(cc) The Company and its Subsidiaries, each (i) has timely
filed all necessary federal, state, local and foreign tax returns, and
all such returns were true, complete and correct, (ii) has paid all
federal, state, local and foreign taxes, assessments, governmental or
other charges due and payable for which it is liable, including, without
limitation, all sales and use taxes and all taxes which the Company or
any of its subsidiaries is obligated to withhold from amounts owing to
employees, creditors and third parties, and (iii) does not have any tax
deficiency or claims outstanding or assessed or, to the best of its
knowledge, proposed against any of them, except those, in each of the
cases described in clauses (i), (ii) and (iii) of this PARAGRAPH (CC),
that would not, singularly or in the aggregate, have a Material Adverse
Effect. The Company and its Subsidiaries, each has not engaged in any
transaction that could reasonably be characterized as a corporate tax
shelter by the Internal Revenue Service or any other taxing authority.
The accruals and reserves on the books and records of the Company and
its Subsidiaries in respect of tax liabilities for any taxable period
not yet finally determined are adequate to meet any assessments and
related liabilities for any such period, and since July 31, 2006, the
Company and its Subsidiaries each has not incurred any liability for
taxes other than in the ordinary course.
(dd) The Company and each of its Subsidiaries carries, or is
covered by, insurance provided by recognized, financially sound and
reputable institutions with policies in such amounts and covering such
risks as is adequate for the conduct of their respective businesses and
the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries. 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
11
Effect. Neither the Company nor any of its Subsidiaries have been denied
any insurance coverage that they have sought or for which they have
applied.
(ee) The Company and its Subsidiaries each maintains a system
of internal accounting and other controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with GAAP 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. Except as
described in the General Disclosure Package, since the end of the
Company's most recent audited fiscal year, there as been (A) no material
weakness in the Company's internal control over financial reporting
(whether or not remediated) and (B) no change in the Company's internal
control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company's internal control
over financial reporting.
(ff) The minute books of the Company and each of its
Subsidiaries have been made available to the Placement Agent and counsel
for the Placement Agent, and such books (i) contain a complete summary,
in all material respects, of all meetings and actions of the board of
directors (including each board committee) and shareholders of the
Company (or analogous governing bodies and interest holders, as
applicable), and each of its Subsidiaries since the time of its
respective incorporation or organization through the date of the latest
meeting and action, and (ii) accurately in all material respects reflect
all transactions referred to in such minutes.
(gg) There is no franchise, lease, contract, agreement or
document required by the Securities Act or by the Rules and Regulations
to be described in the General Disclosure Package and in the Prospectus
or a document incorporated by reference therein or to be filed as an
exhibit to the Registration Statement or a document incorporated by
reference therein which is not described or filed therein as required;
and all descriptions of any such franchises, leases, contracts,
agreements or documents contained in the Registration Statement or in a
document incorporated by reference therein are accurate and complete
descriptions of such documents in all material respects. Other than as
described in the General Disclosure Package, no such franchise, lease,
contract or agreement has been suspended or terminated for convenience
or default by the Company or any of its Subsidiaries or any of the other
parties thereto, and neither the Company nor any of its Subsidiaries has
received notice nor does the Company have any other knowledge of any
such pending or threatened suspension or termination, except for such
pending or threatened suspensions or terminations that would not
reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect.
(hh) No relationship, direct or indirect, exists between or
among the Company and any of its Subsidiaries on the one hand, and the
directors, officers, stockholders (or analogous interest holders),
customers or suppliers of the Company or any of its Subsidiaries or any
of their affiliates on the other hand, which is required to be described
in the General Disclosure Package and the Prospectus or a document
incorporated by reference therein and which is not so described.
(ii) No person or entity has the right to require
registration of shares of Common Stock or other securities of the
Company or any of its Subsidiaries because of the filing or
effectiveness of the Registration Statement or otherwise, except for
persons and entities who have expressly waived such right in writing or
who have been given timely and proper written notice and have failed to
exercise such right within the time or times required under the terms
and conditions of such right, if any. Except as described in the General
Disclosure Package, there are
12
no persons with registration rights or similar rights to have any
securities registered by the Company or any of its Subsidiaries under
the Securities Act.
(jj) Neither the Company nor any of its Subsidiaries own any
"margin securities" as that term is defined in Regulation U of the Board
of Governors of the Federal Reserve System (the "FEDERAL RESERVE
BOARD"), and none of the proceeds of the sale of the Stock will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Stock to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(kk) Neither the Company nor any of its Subsidiaries is a
party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Company or the Placement
Agent for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Stock or any transaction
contemplated by this Agreement, the Registration Statement, the General
Disclosure Package or the Prospectus.
(ll) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in either the General Disclosure Package or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(mm) The Company is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act. The Common Stock is registered
pursuant to Section 12(b) of the Exchange Act and is listed on the NYSE,
and the Company has taken no action designed to, or reasonably likely to
have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or the
National Association of Securities Dealers, Inc. ("NASD") is
contemplating terminating such registration or listing. No consent,
approval, authorization or order of, filing, notification or
registration with, the NYSE is required for the listing and trading of
the Stock on the NYSE except as otherwise given or obtained.
(nn) The Company is in compliance with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and
regulations promulgated thereunder or implementing the provisions
thereof (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT").
(oo) The Company is in compliance with all material
applicable corporate governance requirements set forth in the NYSE
Rules.
(pp) 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, local or foreign
office in violation of any law (including the Foreign Corrupt Practices
Act of 1977, as amended) or of the character required to be disclosed in
the Registration Statement, the General Disclosure Package or the
Prospectus or a document incorporated by reference therein.
(qq) There are no transactions, arrangements or other
relationships between and/or among the Company, any of its affiliates
(as such term is defined in Rule 405 of the Securities Act) and any
unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity that could reasonably
be expected to materially affect the
13
Company's or any of its Subsidiaries' liquidity or the availability of
or requirements for their capital resources required to be described in
the General Disclosure Package and the Prospectus or a document
incorporated by reference therein which have not been described as
required.
(rr) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees or indebtedness by the Company or any of its Subsidiaries to
or for the benefit of any of the officers or directors of the Company,
any of its Subsidiaries or any of their respective family members,
except as disclosed in the Registration Statement, the General
Disclosure Package or the Prospectus.
(ss) The statistical and market related data included in the
Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and such data agree with the
sources from which they are derived.
(tt) The operations of the Company and its Subsidiaries are
and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, applicable money
laundering statutes and applicable rules and regulations thereunder
(collectively, the "MONEY LAUNDERING LAWS"), and no action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its Subsidiaries
with respect to the Money Laundering Laws is pending, or to the best
knowledge of the Company, threatened.
(uu) Neither the Company nor any of its Subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company will
not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(vv) Neither the Company nor any Subsidiary nor any of their
affiliates (within the meaning of NASD Conduct Rule 2720(b)(1)(a))
directly or indirectly controls, are controlled by, or is under common
control with, or is an associated person (within the meaning of Article
I, Section 1(ee) of the By-laws of the NASD) of, any member firm of the
NASD.
(ww) The Company satisfies the pre-1992 eligibility
requirements for the use of a registration statement on Form S-3 in
connection with the Offering contemplated hereby (the pre-1992
eligibility requirements for the use of the registration statement on
Form S-3 include (i) having a non-affiliate, public common equity float
of at least $150 million or a non-affiliate, public common equity float
of at least $100 million and annual trading volume of at least three
million shares and (ii) having been subject to the Exchange Act
reporting requirements for a period of 36 months).
(xx) No approval of the shareholders of the Company under the
rules and regulations of NYSE is required for the Company to issue and
deliver to the Purchaser the Stock.
Any certificate signed by or on behalf of the Company and delivered to the
Placement Agent or to counsel for the Placement Agent specifically pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company to the Placement Agent and the Purchaser as to the matters covered
thereby.
14
4. THE CLOSING. The time and date of closing and delivery of the
documents required to be delivered to the Placement Agent pursuant to SECTIONS 5
and 7 hereof shall be at 10:00 A.M., New York time, on February 7, 2007 (the
"CLOSING DATE") at the office of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, MetLife Building, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Placement Agent and the Purchaser:
(a) To prepare the Prospectus in a form approved by the
Placement Agent containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on rules 430A,
430B and 430C and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the second business (2nd) day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A of the
Rules and Regulations; to notify the Placement Agent immediately of the
Company's intention to file or prepare any supplement or amendment to
any Registration Statement or to the Prospectus and to make no amendment
or supplement to the Registration Statement, the General Disclosure
Package or to the Prospectus to which the Placement Agent shall
reasonably object by notice to the Company after a reasonable period to
review; to advise the Placement Agent, promptly after it receives notice
thereof, of the time when any amendment to any Registration Statement
has been filed or becomes effective or any supplement to the General
Disclosure Package or the Prospectus or any amended Prospectus has been
filed and to furnish the Placement Agent copies thereof; to file
promptly all material required to be filed by the Company with the
Commission pursuant to Rule 433(d); to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Securities Act) is required
in connection with the offering or sale of the Stock; to advise the
Placement Agent, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the Registration Statement, the General Disclosure Package or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus or suspending any such qualification, and promptly to use
its best efforts to obtain the withdrawal of such order.
(b) The Company represents and agrees that, unless it
obtains the prior consent of the Placement Agent, it has not made and
will not, make any offer relating to the Stock that would constitute a
"free writing prospectus" as defined in Rule 405 under the Securities
Act unless the prior written consent of the Placement Agent has been
received (each, a "PERMITTED FREE WRITING PROSPECTUS"); PROVIDED that
the prior written consent of the Placement Agent hereto shall be deemed
to have been given in respect of the Issuer Free Writing Prospectus[es]
included in SCHEDULE A hereto. The Company represents that it has
treated and agrees that it will treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, comply with the
requirements of Rules 164 and 433 under the Securities Act applicable to
any Issuer Free Writing Prospectus, including the requirements relating
to timely filing with the Commission, legending and record keeping and
will not take any action that would result in the Placement Agent or the
Company being required to file with the Commission pursuant to Rule
433(d) under the Securities Act a free writing prospectus prepared by or
on behalf of such Placement Agent that such Placement Agent otherwise
would not have been required to file thereunder.
15
(c) If at any time when a Prospectus relating to the Stock
is required to be delivered under the Securities Act, any event occurs
or condition exists as a result of which the Prospectus, as then amended
or supplemented, would include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or the Registration Statement, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein
not misleading, or if for any other reason it is necessary at any time
to amend or supplement any Registration Statement or the Prospectus to
comply with the Securities Act or the Exchange Act, the Company will
promptly notify the Placement Agent, and upon the Placement Agent's
request, the Company will promptly prepare and file with the Commission,
at the Company's expense, an amendment to the Registration Statement or
an amendment or supplement to the Prospectus that corrects such
statement or omission or effects such compliance and will deliver to the
Placement Agent, without charge, such number of copies thereof as the
Placement Agent may reasonably request. The Company consents to the use
of the Prospectus or any amendment or supplement thereto by the
Placement Agent.
(d) If the General Disclosure Package is being used to
solicit offers to buy the Stock at a time when the Prospectus is not yet
available to prospective purchasers and any event shall occur as a
result of which, in the judgment of the Company or in the reasonable
opinion of the Placement Agent, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the
statements therein, in the light of the circumstances then prevailing,
not misleading, or to make the statements therein not conflict with the
information contained or incorporated by reference in the Registration
Statement then on file and not superseded or modified, or if it is
necessary at any time to amend or supplement the General Disclosure
Package to comply with any law, the Company promptly will either (i)
prepare, file with the Commission (if required) and furnish to the
Placement Agent and any dealers an appropriate amendment or supplement
to the General Disclosure Package or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in the General Disclosure Package so that the
General Disclosure Package as so amended or supplemented will not, in
the light of the circumstances then prevailing, be misleading or
conflict with the Registration Statement then on file, or so that the
General Disclosure Package will comply with law.
(e) If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or will
conflict with the information contained in the Registration Statement,
Pricing Prospectus or Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part
thereof and not superseded or modified or included or would include an
untrue statement of a material fact or omitted or would omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances
prevailing at the subsequent time, not misleading, the Company has
promptly notified or will promptly notify the Placement Agent so that
any use of the Issuer Free Writing Prospectus may cease until it is
amended or supplemented and has promptly amended or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission. The
foregoing sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon, and in conformity with,
written information furnished to the Company by the Placement Agent
specifically for inclusion therein, which information the parties hereto
agree is limited to the Placement Agent's Information (as defined in
SECTION 17).
16
(f) To the extent not available to the public on the
Commission's ▇▇▇▇▇ system, to furnish promptly to the Placement Agent
and to counsel for the Placement Agent a signed copy of the Registration
Statement as originally filed with the Commission, and of each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(g) To deliver promptly to the Placement Agent in New York
City such number of the following documents as the Placement Agent shall
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission (in each case excluding
exhibits), (ii) each Preliminary Prospectus, (iii) any Issuer Free
Writing Prospectus, (iv) the Prospectus (the delivery of the documents
referred to in clauses (i), (ii), (iii) and (iv) of this PARAGRAPH (G)
to be made not later than 10:00 A.M., New York time, on the business day
following the execution and delivery of this Agreement), (v) conformed
copies of any amendment to the Registration Statement (excluding
exhibits), (vi) any amendment or supplement to the General Disclosure
Package or the Prospectus (the delivery of the documents referred to in
clauses (v) and (vi) of this PARAGRAPH (G) to be made not later than
10:00 A.M., New York City time, on the business day following the date
of such amendment or supplement) and (vii) any document incorporated by
reference in the General Disclosure Package or the Prospectus (excluding
exhibits thereto) (the delivery of the documents referred to in clause
(vi) of this PARAGRAPH (G) to be made not later than 10:00 A.M., New
York City time, on the business day following the date of such
document).
(h) To make generally available to its shareholders as soon
as practicable, but in any event not later than eighteen (18) months
after the effective date of each Registration Statement (as defined in
Rule 158(c) under the Securities Act), an earnings statement of the
Company and its Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158); and to furnish to
its shareholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of
income, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants)
and as soon as possible after each of the first three fiscal quarters of
each fiscal year (beginning with the first fiscal quarter after the
effective date of such Registration Statement), consolidated summary
financial information of the Company and its Subsidiaries for such
quarter in reasonable detail.
(i) To take promptly from time to time such actions as the
Placement Agent may reasonably request to qualify the Stock for offering
and sale under the securities or Blue Sky laws of such jurisdictions
(domestic or foreign), if applicable, as the Placement Agent may
designate and to continue such qualifications in effect, and to comply
with such laws, for so long as required to permit the offer and sale of
Stock in such jurisdictions; PROVIDED that the Company and its
Subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction.
(j) Upon request, but only to the extent not available to
the public on the Commission's ▇▇▇▇▇ system, during the period of five
(5) years from the date hereof, to deliver to the Placement Agent, (i)
as soon as they are available, copies of all reports or other
communications furnished to shareholders, and (ii) as soon as they are
available, copies of any reports and financial statements furnished or
filed with the Commission or any national securities exchange or
automatic quotation system on which the Stock is listed or quoted.
(k) To supply the Placement Agent with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act or the Registration Statement, any Preliminary Prospectus
or the
17
Prospectus, or any amendment or supplement thereto or document
incorporated by reference therein.
(l) Prior to the Closing Date, not to issue any press
release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of
business and consistent with the past practices of the Company and of
which the Placement Agent is notified), without the prior written
consent of the Placement Agent, unless in the judgment of the Company
and its counsel, and after notification to the Placement Agent, such
press release or communication is required by law.
(m) Until the Placement Agent shall have notified the
Company of the completion of the offering of the Stock, that the Company
will not, and will cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one or
more other persons, bid for or purchase, for any account in which it or
any of its affiliated purchasers has a beneficial interest, any Stock,
or attempt to induce any person to purchase any Stock; and not to, and
to cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising
the price of the Stock.
(n) Not to take any action prior to the Closing Date which
would require the Prospectus to be amended or supplemented pursuant to
SECTION 5.
(o) To at all times comply in all material respects with all
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act in effect from time to
time.
(p) To apply the net proceeds from the sale of the Stock
substantially as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus under the heading "Use of
Proceeds."
(q) To use its best efforts to list, subject to notice of
issuance, the Stock on the NYSE effect and maintain the quotation of the
Stock on the NYSE.
(r) To use its best efforts to do and perform all things
required to be done or performed under this Agreement by the Company
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Stock.
6. PAYMENT OF EXPENSES. The Company agrees to pay, or reimburse if
paid by the Placement Agent, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated: (a) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Stock to the
Purchaser and any taxes payable in that connection; (b) the costs incident to
the Registration of the Stock under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus,
the General Disclosure Package, the Prospectus, any amendments, supplements and
exhibits thereto or any document incorporated by reference therein and the costs
of printing, reproducing and distributing any transaction document by mail,
telex or other means of communications; (d) any applicable listing, quotation or
other fees; (f) the cost of preparing and printing stock certificates; (g) all
fees and expenses of the registrar and transfer agent of the Stock; (h) at the
Closing by wire transfer of immediately available funds, the fees, disbursements
and expenses of counsel to the Placement Agent (in addition to the amount paid
pursuant to that certain Placement Agent Agreement between the Company and the
Placement Agent, dated December 14, 2006) in the amount of $15,000 and (i) all
other costs and expenses incident to the offering of the Stock or the
performance of the obligations of the Company under this Agreement (including,
without limitation, the fees and expenses of
18
the Company's counsel and the Company's independent accountants and the travel
and other expenses incurred by Company personnel in connection with any "road
show" including, without limitation, any expenses advanced by the Placement
Agent on the Company's behalf (which will be promptly reimbursed)); PROVIDED
that, except to the extent otherwise provided in this SECTION 6 and in SECTIONS
8 and 10, the Placement Agent shall pay its own costs and expenses.
7. CONDITIONS TO THE OBLIGATIONS OF THE PLACEMENT AGENT AND THE
PURCHASER, AND THE SALE OF THE STOCK. The respective obligations of the
Placement Agent hereunder and the Purchaser under the Subscription Agreement,
and the Closing of the sale of the Stock, are subject to the accuracy, when made
and on the Applicable Time and on the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof, preventing or suspending the
use of any Base Prospectus, any Preliminary Prospectus, the Prospectus
or any Permitted Free Writing Prospectus or any part thereof shall have
been issued and no proceedings for that purpose or pursuant to Section
8A under the Securities Act shall have been initiated or threatened by
the Commission, and all requests for additional information on the part
of the Commission (to be included or incorporated by reference in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Placement Agent; the
Rule 462(b) Registration Statement, if any, each Issuer Free Writing
Prospectus, if any, and the Prospectus shall have been filed with the
Commission within the applicable time period prescribed for such filing
by, and in compliance with, the Rules and Regulations and in accordance
with SECTION 5(A), and the Rule 462(b) Registration Statement, if any,
shall have become effective immediately upon its filing with the
Commission; and the NASD shall have raised no objection to the fairness
and reasonableness of the terms of this Agreement or the transactions
contemplated hereby.
(b) The Placement Agent shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the
Registration Statement or any amendment or supplement thereto contains
an untrue statement of a fact which, in the opinion of counsel for the
Placement Agent, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading,
or that the General Disclosure Package, any Issuer Free Writing
Prospectus or the Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of such
counsel, is material or omits to state any fact which, in the opinion of
such counsel, is material and is necessary in order to make the
statements, in the light of the circumstances in which they were made,
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of each of this
Agreement, the Subscription Agreement, the Stock, the Registration
Statement, the General Disclosure Package, each Issuer Free Writing
Prospectus, if any, and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for
the Placement Agent, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP shall have furnished to the
Placement Agent such counsel's written opinion, as counsel to the
Company, addressed to the Placement Agent and the Purchaser and dated
the Closing Date, in form and substance reasonably satisfactory to the
Placement Agent.
19
Such counsel shall also have furnished to the Placement Agent a
written statement, addressed to the Placement Agent and dated the
Closing Date, in form and substance satisfactory to the Placement Agent,
to the effect that (x) such counsel has acted as counsel to the Company
in connection with the preparation of the Registration Statement, the
General Disclosure Package and the Prospectus, and each amendment or
supplement thereto made by the Company prior to the Closing Date, (y)
based on such counsel's examination of the Registration Statement, the
General Disclosure Package and the Prospectus, and each amendment or
supplement thereto made by the Company prior to the Closing Date and the
documents incorporated by reference in the General Disclosure Package or
the Prospectus and any further amendment or supplement to any such
incorporated document made by the Company prior to the Closing Date, and
such counsel's investigations made in connection with the preparation of
the Registration Statement, the General Disclosure Package and the
Prospectus, and each amendment or supplement thereto made by the Company
prior to the Closing Date, and "conferences with certain officers and
employees of and with auditors for and counsel to the Company," such
counsel has no reason to believe that (I) the Registration Statement or
any amendment thereto, at the Applicable Time as of the date of this
Agreement, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, at the respective
date thereof or at the Closing Date, contained or contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, the documents
included in the General Disclosure Package, all considered together, as
of the Applicable Time, contained or contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (II) any document incorporated
by reference in the Prospectus or any further amendment or supplement to
any such incorporated document made by the Company prior to the Closing
Date, when they became effective or were filed with the Commission, as
the case may be, contained, in the case of a registration statement
which became effective under the Securities Act, any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or, in the case of other documents which were filed under
the Exchange Act with the Commission, any untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statement, the General Disclosure
Package, or the Prospectus, or an incorporated document. The foregoing
statement may be qualified by a statement to the effect that such
counsel has not independently verified the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
General Disclosure Package or the Prospectus and takes no responsibility
therefor except to the extent set forth in the opinion described above.
(e) In-house intellectual property counsel to the Company
shall have furnished to the Placement Agent such counsel's written
opinion, as intellectual property counsel to the Company, addressed to
the Placement Agent and the Purchaser and dated the Closing Date, in
form and substance reasonably satisfactory to the Placement Agent.
(f) King & Spalding LLP shall have furnished to the
Placement Agent such counsel's written opinion, as FDA counsel to the
Company, addressed to the Placement Agent and the Purchaser and dated
the Closing Date, in form and substance reasonably satisfactory to the
Placement Agent.
20
(g) The Placement Agent shall have received from ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Placement Agent, such
opinion or opinions, dated the Closing Date, with respect to such
matters as the Placement Agent may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
enabling them to pass upon such matters.
(h) On the effective date of any post-effective amendment to
any Registration Statement and on the Closing Date, the Placement Agent
shall have received a letter (the "BRING-DOWN LETTER") from Ernst &
Young LLP addressed to the Placement Agent and dated the Closing Date
confirming, as of the date of the Bring-Down Letter (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the General
Disclosure Package and the Prospectus, as the case may be, as of a date
not more than three (3) business days prior to the date of the
Bring-Down Letter), the conclusions and findings of such firm, of the
type ordinarily included in accountants' "comfort letters" to
underwriters, with respect to the financial information contained or
incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus.
(i) The Company shall have furnished to the Placement Agent
and the Purchaser a certificate, dated the Closing Date, of its Chairman
of the Board, its President or a Vice President and its chief financial
officer stating that (i) such officers have carefully examined the
Registration Statement, the General Disclosure Package, any Permitted
Free Writing Prospectus and the Prospectus and, in their opinion, the
Registration Statement and each amendment thereto, at the Applicable
Time and as of the date of this Agreement and as of the Closing Date did
not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the General Disclosure
Package, as of the Applicable Time and as of the Closing Date, any
Permitted Free Writing Prospectus as of its date and as of the Closing
Date, the Prospectus and each amendment or supplement thereto, as of the
respective date thereof and as of the Closing Date, did not include any
untrue statement of a material fact and did not omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances in which they were made, not misleading, (ii) since
the effective date of the Initial Registration Statement, no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement, the General Disclosure Package or the
Prospectus, (iii) to the best of their knowledge after reasonable
investigation, as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and correct and the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iv) there has not been, subsequent to the date of the
most recent audited financial statements included or incorporated by
reference in the General Disclosure Package, any material adverse change
in the financial position or results of operations of the Company and
its Subsidiaries, or any change or development that, singularly or in
the aggregate, would involve a material adverse change or a prospective
material adverse change, in or affecting the condition (financial or
otherwise), results of operations, business, assets or prospects of the
Company and its Subsidiaries, except as set forth in the Prospectus.
(j) Since the date of the latest audited financial
statements included in the General Disclosure Package or incorporated by
reference in the General Disclosure Package as of the date hereof, (i)
neither the Company nor any of its Subsidiaries shall have sustained any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth in the General Disclosure Package, and (ii) there shall not
have been any change in the capital stock or long-term debt of the
Company nor any of its Subsidiaries, or any change, or any development
involving a prospective change, in or affecting the business,
21
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries, otherwise
than as set forth in the General Disclosure Package, the effect of
which, in any such case described in clause (i) or (ii) of this
PARAGRAPH (J), is, in the judgment of the Placement Agent, so material
and adverse as to make it impracticable or inadvisable to proceed with
the sale or delivery of the Stock on the terms and in the manner
contemplated in the General Disclosure Package.
(k) No action shall have been taken and no law, statute,
rule, regulation or order shall have been enacted, adopted or issued by
any governmental agency or body which would prevent the issuance or sale
of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the
Company or its Subsidiaries; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued which would prevent the issuance or
sale of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the
Company or its Subsidiaries.
(l) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, Nasdaq
GM or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially
limited, or minimum or maximum prices or maximum range for prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or market or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States
shall have become engaged in hostilities other than current hostilities,
or the subject of an act of terrorism, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Placement Agent,
impracticable or inadvisable to proceed with the sale or delivery of the
Stock on the terms and in the manner contemplated in the General
Disclosure Package and the Prospectus.
(m) The NYSE shall have approved the Stock for inclusion
therein, subject only to official notice of issuance.
(n) The Company shall have entered into a Subscription
Agreement with the Purchaser and such agreement shall be in full force
and effect.
(o) Prior to the Closing Date, the Company shall have
furnished to the Placement Agent such further information, opinions,
certificates, letters or documents as the Placement Agent shall have
reasonably requested.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Placement Agent.
22
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless the
Placement Agent, its affiliates and each of its and their respective
directors, officers, members, employees, representatives and agents
(including, without limitation Lazard Freres & Co. LLC, (which will
provide services to the Placement Agent) and its affiliates, and each of
its and their respective directors, officers, members, employees,
representatives and agents and each person, if any, who controls Lazard
Freres & Co. LLC within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and each person, if any, who controls
the Placement Agent within the meaning of Section 15 of the Securities
Act of or Section 20 of the Exchange Act (collectively the "PLACEMENT
AGENT INDEMNIFIED PARTIES," and each a "PLACEMENT AGENT INDEMNIFIED
PARTY") against any loss, claim, damage, expense or liability whatsoever
(or any action, investigation or proceeding in respect thereof), joint
or several, to which such Placement Agent Indemnified Party may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, expense, liability, action, investigation or proceeding
arises out of or is based upon (A) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any Issuer Free Writing Prospectus, any "issuer information"
filed or required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto or document incorporated by reference
therein, (B) the omission or alleged omission to state in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any "issuer
information" filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the Prospectus,
or in any amendment or supplement thereto or document incorporated by
reference therein, a material fact required to be stated therein or
necessary to make the statements therein not misleading or (C) any
breach of the representations and warranties of the Company contained
herein or failure of the Company to perform its obligations hereunder or
pursuant to any law, any act or failure to act, or any alleged act or
failure to act, by the Placement Agent in connection with, or relating
in any manner to, the Stock or the Offering, and which is included as
part of or referred to in any loss, claim, damage, expense, liability,
action, investigation or proceeding arising out of or based upon matters
covered by subclause (A), (B) or (C) above of this SECTION 8(A)
(PROVIDED that the Company shall not be liable in the case of any matter
covered by subclause (C) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, expense or liability resulted directly from any such act or
failure to act undertaken or omitted to be taken by such Placement Agent
through its gross negligence or willful misconduct), and shall reimburse
the Placement Agent Indemnified Party promptly upon demand for any legal
fees or other expenses reasonably incurred by that Placement Agent
Indemnified Party in connection with investigating, or preparing to
defend, or defending against, or appearing as a third party witness in
respect of, or otherwise incurred in connection with, any such loss,
claim, damage, expense, liability, action, investigation or proceeding,
as such fees and expenses are incurred; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such
loss, claim, damage, expense or liability arises out of or is based upon
an untrue statement or alleged untrue statement in, or omission or
alleged omission from any Preliminary Prospectus, any Registration
Statement or the Prospectus, or any such amendment or supplement
thereto, or any Issuer Free Writing Prospectus made in reliance upon and
in conformity with written information furnished to the Company by the
Placement Agent specifically for use therein, which information the
parties hereto agree is limited to the Placement Agent's Information (as
defined in SECTION 17). This indemnity agreement is not exclusive and
will be in addition to any liability, which the Company might otherwise
have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each Placement Agent Indemnified Party.
(b) The Placement Agent shall indemnify and hold harmless
the Company and its directors, 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
23
Exchange Act (collectively the "COMPANY INDEMNIFIED PARTIES" and each a
"COMPANY INDEMNIFIED PARTY") against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in
respect thereof), joint or several, to which such Company Indemnified
Party may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, expense, liability, action, investigation
or proceeding arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any Issuer Free Writing Prospectus, any "issuer information"
filed or required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any "issuer information" filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto,
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Placement Agent
specifically for use therein, which information the parties hereto agree
is limited to the Placement Agent's Information as defined in SECTION
17, and shall reimburse the Company for any legal or other expenses
reasonably incurred by such party in connection with investigating or
preparing to defend or defending against or appearing as third party
witness in connection with any such loss, claim, damage, liability,
action, investigation or proceeding, as such fees and expenses are
incurred. Notwithstanding the provisions of this Section 8(b), in no
event shall any indemnity by the Placement Agent under this Section 8(b)
exceed the total compensation received by such Placement Agent in
accordance with SECTION 2.5.
(c) Promptly after receipt by an indemnified party under
this SECTION 8 of notice of the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this SECTION 8, notify such
indemnifying party in writing of the commencement of that action;
PROVIDED, HOWEVER, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this
SECTION 8 except to the extent it has been materially prejudiced by such
failure; and, PROVIDED, FURTHER, that the failure to notify an
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this SECTION 8. If any
such action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume
the defense of such action with counsel reasonably satisfactory to the
indemnified party (which counsel shall not, except with the written
consent of the indemnified party, be counsel to the indemnifying party).
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such action, except as provided
herein, the indemnifying party shall not be liable to the indemnified
party under SECTION 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense of such
action other than reasonable costs of investigation; PROVIDED, HOWEVER,
that any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense of such
action but the fees and expenses of such counsel (other than reasonable
costs of investigation) shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized
in writing by the Company in the case of a claim for indemnification
under SECTION 8(A) or SECTION 2.6 or LCM in the case of a claim for
indemnification under SECTION 8(B), (ii) such indemnified party shall
have been advised by its counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party, or (iii) the indemnifying party has
failed to assume the defense of such action and employ counsel
reasonably satisfactory to the indemnified party within a reasonable
period of time after notice of the commencement of the
24
action or the indemnifying party does not diligently defend the action
after assumption of the defense, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
(or, in the case of a failure to diligently defend the action after
assumption of the defense, to continue to defend) such action on behalf
of such indemnified party and the indemnifying party shall be
responsible for legal or other expenses subsequently incurred by such
indemnified party in connection with the defense of such action;
PROVIDED, HOWEVER, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties (in addition to any local counsel), which firm
shall be designated in writing by LCM if the indemnified parties under
this SECTION 8 consist of any Placement Agent Indemnified Party or by
the Company if the indemnified parties under this SECTION 8 consist of
any Company Indemnified Parties. Subject to this SECTION 8(C), the
amount payable by an indemnifying party under SECTION 8 shall include,
but not be limited to, (x) reasonable legal fees and expenses of counsel
to the indemnified party and any other expenses in investigating, or
preparing to defend or defending against, or appearing as a third party
witness in respect of, or otherwise incurred in connection with, any
action, investigation, proceeding or claim, and (y) all amounts paid in
settlement of any of the foregoing. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of judgment with respect to any
pending or threatened action or any claim whatsoever, in respect of
which indemnification or contribution could be sought under this SECTION
8 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party in form and
substance reasonably satisfactory to such indemnified party from all
liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party. Subject to the provisions
of the following sentence, no indemnifying party shall be liable for
settlement of any pending or threatened action or any claim whatsoever
that is effected without its written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with its written
consent, if its consent has been unreasonably withheld or delayed or if
there be a judgment for the plaintiff in any such matter, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such
settlement or judgment. In addition, if at any time an indemnified party
shall have requested that an indemnifying party reimburse the
indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated herein effected without its written consent if (i) such
settlement is entered into more than forty-five (45) days after receipt
by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least thirty (30) days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date
of such settlement.
(d) If the indemnification provided for in this SECTION 8 is
unavailable or insufficient to hold harmless an indemnified party under
SECTION 8(A) or SECTION 8(B), then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount
paid, payable or otherwise incurred by such indemnified party as a
result of such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof), as incurred, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Placement Agent on the
other hand from the offering of the Stock, or (ii) if the allocation
provided by clause (i) of
25
this SECTION 8(D) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) of this SECTION 8(D) but also the relative fault of the
Company on the one hand and the Placement Agent on the other with
respect to the statements, omissions, acts or failures to act which
resulted in such loss, claim, damage, expense or liability (or any
action, investigation or proceeding in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Placement Agent on the other with
respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Stock purchased under
this Agreement (before deducting expenses) received by the Company bear
to the total discounts and commissions received by the Placement Agent
in connection with the Offering, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company
on the one hand and the Placement Agent on the other shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company
on the one hand or the Placement Agent on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement, omission, act
or failure to act; PROVIDED that the parties hereto agree that the
written information furnished to the Company by the Placement Agent for
use in the Preliminary Prospectus, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, consists solely
of the Placement Agent's Information as defined in SECTION 17. The
Company and the Placement Agent agree that it would not be just and
equitable if contributions pursuant to this SECTION 8(D) were to be
determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage, expense, liability, action, investigation or
proceeding referred to above in this SECTION 8(D) shall be deemed to
include, for purposes of this SECTION 8(D), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending against or appearing as
a third party witness in respect of, or otherwise incurred in connection
with, any such loss, claim, damage, expense, liability, action,
investigation or proceeding. Notwithstanding the provisions of this
SECTION 8(D), the Placement Agent shall not be required to contribute
any amount in excess of the total compensation received by the Placement
Agent in accordance with SECTION 2.5 less the amount of any damages
which the Placement Agent has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement, omission or alleged
omission, act or alleged act or failure to act or alleged failure to
act. 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.
9. TERMINATION. The obligations of the Placement Agent and the
Purchaser hereunder and under the Subscription Agreement may be terminated by
the Placement Agent, in its absolute discretion by notice given to the Company
prior to delivery of and payment for the Stock if, prior to that time, any of
the events described in SECTIONS 7(J), 7(K), or 7(L) have occurred or if the
Purchaser shall decline to purchase the Stock for any reason permitted under
this Agreement or the Subscription Agreement.
10. REIMBURSEMENT OF PLACEMENT AGENT'S EXPENSES. Notwithstanding
anything to the contrary in this Agreement, if (a) this Agreement shall have
been terminated pursuant to SECTION 9, (b) the Company shall fail to tender the
Stock for delivery to the Purchaser for any reason not permitted under this
Agreement, (c) the Purchaser shall decline to purchase the Stock for any reason
permitted under this Agreement or (d) the sale of the Stock is not consummated
because any condition to the obligations of the Purchaser or the Placement Agent
set forth herein is not satisfied or because of the refusal, inability or
failure on the part of the Company to perform any agreement herein or to satisfy
any condition or to comply with the provisions hereof, then in addition to the
payment of amounts in accordance with SECTION 6, the Company shall reimburse the
Placement Agent for the fees and expenses of the Placement Agent's counsel and
for such other out-of-pocket expenses as shall have been reasonably incurred by
them in
26
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company shall pay the full amount thereof to the Placement Agent.
11. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company acknowledges and
agrees that:
(a) the Placement Agent's responsibility to the Company is
solely contractual in nature, the Placement Agent has been retained
solely to act as Placement Agent in connection with the Offering and no
fiduciary, advisory or agency relationship between the Company and the
Placement Agent has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the Placement
Agent or Lazard Freres & Co. LLC has advised or is advising the Company
on other matters;
(b) the price of the Stock set forth in this Agreement was
established by the Company following discussions and arms-length
negotiations with the Placement Agent, and the Company is capable of
evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that the Placement Agent and Lazard
Freres & Co. LLC and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the
Company and that the Placement Agent has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any
claims it may have against the Placement Agent for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that the Placement
Agent shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the
Company, including stockholders, employees or creditors of the Company.
12. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Placement Agent,
the Company, and their respective successors and assigns. This Agreement shall
also inure to the benefit of Lazard Freres & Co. LLC, the Purchaser, and each of
their respective successors and assigns, which shall be third party
beneficiaries hereof. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, other than the persons
mentioned in the preceding sentences, any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein contained,
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person; except that the representations, warranties, covenants,
agreements and indemnities of the Company contained in this Agreement shall also
be for the benefit of the Placement Agent Indemnified Parties and the
indemnities of the Placement Agent shall be for the benefit of the Company
Indemnified Parties. It is understood that the Placement Agent's responsibility
to the Company is solely contractual in nature and the Placement Agent does not
owe the Company, or any other party, any fiduciary duty as a result of this
Agreement.
13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the Placement Agent, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Placement Agent, the Company, the Purchaser or any person controlling any
of them and shall survive delivery of and payment for the Stock. Notwithstanding
any termination of this Agreement, including without limitation any termination
pursuant to SECTIONS 9 or 10, the indemnity and contribution
27
agreements contained in SECTION 8 and the covenants, representations, warranties
set forth in this Agreement shall not terminate and shall remain in full force
and effect at all times.
14. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Placement Agent, shall be delivered or sent by
mail, telex, facsimile transmission or email to Lazard Capital Markets
LLC, Attention: General Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇; and
(b) if to the Company, shall be delivered or sent by mail,
telex, facsimile transmission or email to Enzo Biochem, Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇,
President and Chief Financial Officer, Fax: ▇▇▇-▇▇▇-▇▇▇▇.
PROVIDED, HOWEVER, that any notice to the Placement Agent pursuant to SECTION 8
shall be delivered or sent by mail, telex or facsimile transmission to the
Placement Agent at its address set forth in its acceptance telex to the
Placement Agent, which address will be supplied to any other party hereto by the
Placement Agent upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof, except that any
such statement, request, notice or agreement delivered or sent by email shall
take effect at the time of confirmation of receipt thereof by the recipient
thereof.
15. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
16. GOVERNING LAW, AGENT FOR SERVICE AND JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW. No legal proceeding may be commenced, prosecuted or
continued in any court other than the courts of the State of New York located in
the City and County of New York or in the United States District Court for the
Southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Company and the Placement Agent each
hereby consent to the jurisdiction of such courts and personal service with
respect thereto. The Company and the Placement Agent each hereby consent to
personal jurisdiction, service and venue in any court in which any legal
proceeding arising out of or in any way relating to this Agreement is brought by
any third party against the Company or the Placement Agent. The Company and the
Placement Agent each hereby waive all right to trial by jury in any legal
proceeding (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such legal proceeding brought in any such court shall be conclusive and
binding upon the Company and the Placement Agent and may be enforced in any
other courts in the jurisdiction of which the Company is or may be subject, by
suit upon such judgment.
17. PLACEMENT AGENT'S INFORMATION. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Placement Agent's
Information consists solely of the following information in the Prospectus: (i)
the last paragraph on the front cover page concerning the terms of the offering
by the Placement Agent; and (ii) the statements concerning the Placement Agent
contained in the first paragraph under the heading "Plan of Distribution."
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any section, paragraph, clause or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph, clause or
provision hereof. If any section, paragraph, clause 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.
28
19. GENERAL. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company and the Placement Agent.
20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument and such signatures
may be delivered by facsimile.
29
If the foregoing is in accordance with your understanding of the
agreement between the Company and the Placement Agent, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
ENZO BIOCHEM, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Accepted as of the date
first above written:
LAZARD CAPITAL MARKETS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Counsel
30
SCHEDULE A
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None.