Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7 hereof, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, INNOVATIVE DRUG DELIVERY SYSTEMS, INC. By: ---------------------------------- Name: Title: Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: --------------------------------- Name: Title: SCHEDULE A Underwriter Number of Firm Shares To Be Purchased Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. Total EXHIBIT A Form of Legal Opinion of Company Counsel EXHIBIT B Form of Legal Opinion of Patent Counsel EXHIBIT C FORM OF LOCK-UP AGREEMENT ____________, 2002 Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. As Representatives of the several Underwriters c/o Thomas Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, California 94104 Re: Lock-Up Agreement (the "Agreement") Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of common stock, par value $.001 per share (the "Common Stock"), of Innovative Drug Delivery Systems, Inc., a Delaware corporation (the "Company"), or securities convertible into or exchangeable or exercisable for Common Stock. The undersigned understands that you, as representatives (the "Representatives"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule A to such agreement (collectively, the "Underwriters"), with the Company providing for a public offering of the Common Stock of the Company pursuant to a Registration Statement on form S-1 to be filed with the Securities and Exchange Commission (the "Public Offering"). The undersigned recognizes that the Public Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Public Offering and in entering into underwriting arrangements with the Company with respect to the Public Offering. To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. With respect to the Public Offering, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock owned either of record or beneficially by the undersigned, including any rights to receive notice of the Public Offering. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to or reasonably expected to lead to or result in a sale or disposition of the Common Stock even if such Common Stock would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Common Stock or with respect to any security that includes, relates to, or derives any significant part of its value from such Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Innovative Drug Delivery Systems Inc)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7 hereof, and is fully informed regarding said provisions20 21. Each of the parties hereto further acknowledges that the provisions of Section 7 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required Information Furnished by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, INNOVATIVE DRUG DELIVERY SYSTEMS, INC. By: ---------------------------------- Name: Title: Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: --------------------------------- Name: Title: Underwriters............................................. 20 SCHEDULE A Underwriter Number - List of Firm Shares To Be Purchased Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. Total Underwriters EXHIBIT A - Form of Legal Opinion of Company Counsel EXHIBIT B - Form of Legal Opinion of Patent Intellectual Property Counsel EXHIBIT C FORM OF LOCK- Form of Lock-UP AGREEMENT Up Agreement _____________, 2002 2004 Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo SecuritiesXxxxxxx & Co. Xxxxxxx Xxxxx & Associates, LLC Xxxxxxxxx & Company Inc. As Representatives of the several Underwriters c/o Thomas Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, California 94104 Re: Lock-Up Agreement (the "Agreement") Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of common stock, par value $.001 per share (the "Common Stock"), of Innovative Drug Delivery Systems, Inc.Introduction. Phase Forward Incorporated, a Delaware corporation (the "CompanyCOMPANY"), or securities convertible into or exchangeable or exercisable for Common Stock. The undersigned understands that you, as representatives proposes to issue and sell to the several underwriters named in Schedule A hereto (the "RepresentativesUNDERWRITERS") an aggregate of shares of the Common Stock, par value $0.01 per share, of the Company (the "FIRM SHARES"). The Company also proposes to issue and sell to the several Underwriters not more than an additional shares of its common stock par value $0.01 per share (the "ADDITIONAL SHARES"), propose if and to enter into an Underwriting Agreement the extent that you shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "SHARES". The shares of Common Stock, par value $0.01 per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the "COMMON STOCK". Xxxxxx Xxxxxx Partners LLC ("XXXXXX XXXXXX PARTNERS"), Xxxxx Xxxxxxx & Co. and Xxxxxxx Xxxxx & Associates, Inc. have agreed to act as representatives of the several Underwriters named (in Schedule A to such agreement (collectivelycapacity, the "UnderwritersREPRESENTATIVES"), ) in connection with the Company providing for a public offering and sale of the Common Stock of the Shares. The Company pursuant to a Registration Statement on form S-1 to be has filed with the Securities and Exchange Commission (the "Public OfferingCOMMISSION")) a registration statement on Form S-1 (file no. The undersigned recognizes that the Public Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Public Offering and in entering into underwriting arrangements with the Company with respect to the Public Offering. To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion333-113594), it will notincluding a prospectus, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering Shares. The registration statement as amended at the time it becomes effective, including the information (the "Prospectus"), (1if any) offer, pledge, sell, contract deemed to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any be part of the economic consequences registration statement at the time of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is effectiveness pursuant to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. With respect to the Public Offering, the undersigned waives any registration rights relating to registration Rule 430A under the Securities Act of any 1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS". If the Company has filed a registration statement to register additional shares of Common Stock owned either of record pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration Statement. All references in this Agreement to the Registration Statement, the Rule 462 Registration Statement, a preliminary prospectus, the Prospectus, or beneficially by the undersigned, including any rights amendments or supplements to receive notice any of the Public Offeringforegoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX"). The foregoing restrictions are expressly agreed Company hereby confirms its engagement of Xxxxx Xxxxxxx & Co. and Xxxxx Xxxxxxx & Co. hereby confirms its agreement with the Company to preclude render services as a "qualified independent underwriter" within the undersigned from engaging in any hedging or other transaction that is designed to or reasonably expected to lead to or result in a sale or disposition meaning of Rule 2720 of the Common Stock even if such Common Stock would be disposed Conduct Rules of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchaseNational Association of Securities Dealers, sale or grant of any right Inc. (including without limitation any put option or put equivalent position or call option or call equivalent position"NASD") with respect to any the offering of the Common Stock or Shares. Xxxxx Xxxxxxx & Co., solely in its capacity as the "qualified independent underwriter" with respect to any security that includesthe offering of the Shares, relates toand not otherwise, or derives any significant part of its value from such Common Stockis referred to herein as the "QIU."
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7 hereof8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereof 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. [Remainder of page intentionally left blank] If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, INNOVATIVE DRUG DELIVERY SYSTEMSVOCUS, INC. By: ---------------------------------- Name: Rxxxxxx Xxxxxx Title: Chief Executive Officer and President The Selling Stockholders named in Schedule B hereto, acting severally By: Attorney-in-Fact The Selling Stockholders named in Schedule C hereto, acting severally By: Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC Xxxxx Fargo SecuritiesRBC Capital Markets Corporation Wachovia Capital Markets, LLC Xxxxxxxxx Wxxxxxx Xxxxx & Company Company, L.L.C. Canaccord Axxxx Inc. Pacific Crest Securities Inc. Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC By: --------------------------------- Name: Title: SCHEDULE A Underwriter Number of Firm Shares Underwriter To Be Purchased Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC Xxxxx Fargo SecuritiesRBC Capital Markets Corporation Wachovia Capital Markets, LLC Xxxxxxxxx Wxxxxxx Xxxxx & Company Company, L.L.C. Canaccord Axxxx Inc. Pacific Crest Securities Inc. Total EXHIBIT A Form Schedule A-1 SCHEDULE B Number of Legal Opinion of Company Counsel EXHIBIT B Form of Legal Opinion of Patent Counsel EXHIBIT C FORM OF LOCK-UP AGREEMENT ____________, 2002 Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. As Representatives of the several Underwriters c/o Thomas Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, California 94104 Re: Lock-Up Agreement (the "Agreement") Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of common stock, par value $.001 per share (the "Common Stock"), of Innovative Drug Delivery Systems, Inc., a Delaware corporation (the "Company"), or securities convertible into or exchangeable or exercisable for Common Stock. The undersigned understands that you, as representatives (the "Representatives"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule A to such agreement (collectively, the "Underwriters"), with the Company providing for a public offering of the Common Stock of the Company pursuant to a Registration Statement on form S-1 to be filed with the Securities and Exchange Commission (the "Public Offering"). The undersigned recognizes that the Public Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Public Offering and in entering into underwriting arrangements with the Company with respect to the Public Offering. To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. With respect to the Public Offering, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock owned either of record or beneficially by the undersigned, including any rights to receive notice of the Public Offering. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to or reasonably expected to lead to or result in a sale or disposition of the Common Stock even if such Common Stock would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Common Stock or with respect to any security that includes, relates to, or derives any significant part of its value from such Common Stock.Firm Shares
Appears in 1 contract
Samples: Underwriting Agreement (Vocus, Inc.)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who or which was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7 hereof8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereof 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, INNOVATIVE DRUG DELIVERY SYSTEMSACE CASH EXPRESS, INC. By: ---------------------------------- Name: Title: The Selling Shareholders named in Schedule B hereto, acting severally By: Name: Wxxxxx X. Xxxxx Title: Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC Xxxxx Fargo SecuritiesSxxxxxxx Inc. JMP Securities Rxxx Capital Partners, LLC Xxxxxxxxx & Company Inc. Acting severally on behalf of themselves and as representatives of the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC By: --------------------------------- Name: Title: SCHEDULE Schedules A Underwriter Number List of Firm Shares To Be Purchased Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. Total EXHIBIT Underwriters B List of Selling Shareholders C List of Subsidiaries Exhibits A Form of Legal Opinion of Company Counsel EXHIBIT Lxxxxx & Wxxxxxx LLP B Form of Legal Opinion of Patent Counsel EXHIBIT Wxxxxx X. Xxxxx, Esq. C FORM OF LOCK-UP AGREEMENT ____________, 2002 Xxxxxx Xxxxxx Partners LLC Xxxxx Fargo Securities, LLC Xxxxxxxxx & Company Inc. As Representatives Form of the several Underwriters c/o Thomas Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, California 94104 Re: Lock-Up Agreement (the "Agreement") Ladies and GentlemenSCHEDULE A Number of Firm Shares Underwriter To Be Purchased Txxxxx Wxxxxx Partners LLC Sxxxxxxx Inc. JMP Securities Rxxx Capital Partners, LLC Total 2,900,000 SCHEDULE B Selling Number of Firm Maximum Number of Shareholder Shares To Be Sold Additional Shares to be Sold Rxxxxxx X. Xxxxxx 100,000 25,000 Dxxxxx X. Xxxxxxxx 400,000 KLN Foundation 18,378 Mxxxxxxx X. Xxxxx 70,000 Scout Ventures 10,000 Communities Foundation of Texas 10,000 Exxxxx X. Xxxx III 403,636 Lxxx Hxxxx Xxxx 21,705 Exxxxx Xxxxxx Rose 1990 Irrevocable Trust 66,281 Jxx X. Xxxxxxxxx — 40,000 Total 1,100,000 65,000 SCHEDULE C LIST OF SUBSIDIARIES Wholly-owned by Ace Cash Express, Inc.: The undersigned is an owner of record or beneficially of certain shares of common stock, par value $.001 per share (the "Common Stock"), of Innovative Drug Delivery SystemsCheck Express, Inc., a Florida corporation Q.C.& G. Financial, Inc., an Arizona corporation Public Currency, Inc., a California corporation Ace Funding LLC, a Delaware limited liability company Wholly-owned by Check Express, Inc.: Check Express Florida, Inc., a Florida corporation (the "Company")Check Express Finance, or securities convertible into or exchangeable or exercisable for Common Stock. Inc., a Florida corporation Check-X-Change Corporation, a California corporation Check Express South Carolina, Inc., a Florida corporation Check Express USA, Inc., a Florida corporation EQUITY INTERESTS IN OTHER CORPORATION: The undersigned understands that you, as representatives (the "Representatives"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule A to such agreement (collectively, the "Underwriters"), with the Company providing for holds a public offering of the Common Stock of the Company pursuant to a Registration Statement on form S-1 to be filed with the Securities and Exchange Commission (the "Public Offering"). The undersigned recognizes that the Public Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Public Offering and in entering into underwriting arrangements with the Company with respect to the Public Offering. To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any purchase 1,167,264 shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any common stock of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. With respect to the Public Offering, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock owned either of record or beneficially by the undersigned, including any rights to receive notice of the Public Offering. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that is designed to or reasonably expected to lead to or result in a sale or disposition of the Common Stock even if such Common Stock would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Common Stock or with respect to any security that includes, relates to, or derives any significant part of its value from such Common StockNetspend corporation.
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7 hereof7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereof hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, INNOVATIVE DRUG DELIVERY SYSTEMSALLION HEALTHCARE, INC. By: ---------------------------------- Name: Title: Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxxxxx Xxxxx Fargo Securities& Company, LLC Xxxxxxxxx & Company L.L.C. First Albany Capital Inc. Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: --------------------------------- Name: Title: SCHEDULE A Underwriter Number of Firm Shares To Be Purchased Xxxxxx Xxxxxx Partners LLC Xxxxxxx Xxxxx Fargo Securities& Company, L.L.C. First Albany Capital Inc. Total SCHEDULE B Subsidiaries of the Company Name Jurisdiction of Organization Mom’s Pharmacy, Inc. California Medicine Made Easy California Mail Order Meds, Inc. Texas Mom’s Pharmacy, Inc. New York Mom’s Pharmacy, LLC Xxxxxxxxx & Company Florida North American Home Health Supply, Inc. Total California Specialty Pharmacies, Inc. Washington SCHEDULE C Registration Rights Name of Shareholder with Registration Rights Class of Security subject to Registration Rights Number of Shares subject to Registration Rights EXHIBIT A A-1 Form of Legal Opinion of Company Counsel Xxxxxxxx & Xxxxx LLP EXHIBIT B A-2 Form of Legal Opinion of Patent Counsel Xxxxx Peabody LLP EXHIBIT C FORM OF LOCKB Form of Lock-UP AGREEMENT ____________Up Agreement , 2002 2005 Xxxxxx Xxxxxx Partners LLC Xxxxxxx Xxxxx Fargo Securities& Company, LLC Xxxxxxxxx & Company Inc. First Albany Capital Inc. As Representatives of the several Underwriters c/o Thomas x Xxxxxx Xxxxxx Partners LLC Xxx Xxxxxxxxxx 000 Xxxx Xxxxxx, Suite 3700 San Francisco00xx Xxxxx Xxx Xxxx, California 94104 Xxx Xxxx 00000 Re: Lock-Up Agreement (the "“Agreement"”) Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of common stockCommon Stock, par value $.001 0.001 per share (the "“Common Stock"”), of Innovative Drug Delivery SystemsAllion Healthcare, Inc., a Delaware corporation (the "“Company"”), or securities convertible into or exchangeable or exercisable for Common Stock. The undersigned understands that you, as representatives (the "“Representatives"”), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule A to such agreement (collectively, the "“Underwriters"”), with the Company providing for a public offering of the Common Stock of the Company pursuant to a Registration Statement on form Form S-1 to be filed with the Securities and Exchange Commission (the "“Public Offering"”). The undersigned recognizes that the Public Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Public Offering and in entering into underwriting arrangements with the Company with respect to the Public Offering. To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "“Prospectus"”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In additionThe foregoing sentence shall not apply to the exercise of options or warrants or the conversion of a security outstanding on the date of the Prospectus and which is described in the Registration Statement on Form S-1; provided, however, that the undersigned agrees thatthat the foregoing sentence shall apply to any securities issued by the Company to the undersigned upon such an exercise or conversion. The undersigned agrees that if, without (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 180-day period, the 180-day period automatically shall extend until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The undersigned hereby acknowledges and agrees that written consent notice of any extension of the 180-day lock-up period pursuant to the previous paragraph will be delivered by Xxxxxx Xxxxxx Partners LLC (which consent may to the Company and that any such notice properly delivered will be withheld deemed to have been given to, and received by, the undersigned. The undersigned further agrees that, prior to engaging in its sole discretion)any transaction or taking any other action that is subject to the terms of this lock-up agreement during the period from the date of this lock-up agreement to and including the 34th day following the expiration of the initial 180-day lock-up period, it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. With respect give notice thereof to the Public Offering, Company and will not consummate such transaction or take any such action unless it has received written confirmation from the undersigned waives any registration rights relating Company that the 180-day lock-up period (as may have been extended pursuant to registration under the Securities Act of any Common Stock owned either of record or beneficially by the undersigned, including any rights to receive notice of the Public Offeringprevious paragraph) has expired. The foregoing restrictions described above are expressly agreed to preclude the undersigned from engaging in any hedging or other transaction that which is designed to or reasonably expected to lead to or result in a sale or disposition of the Common Stock even if such Common Stock would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include include, without limitation limitation, any short sale or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Common Stock or with respect to any security that includes, relates to, or derives any significant part of its value from such Common Stock.. Notwithstanding the foregoing, the undersigned may sell or otherwise transfer shares of Common Stock, without the prior written consent of Xxxxxx Xxxxxx Partners LLC, (1) as a bona fide gift or gifts, (2) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (3) if the undersigned is a partnership or corporation or similar entity, as a distribution to partners or stockholders of the undersigned, if any, (4) if the undersigned is a corporation, as a transfer to any wholly-owned subsidiary of such corporation, (5) to an entity controlled by the undersigned or an immediate family member of the undersigned, or (6) by will or the laws of descent and distribution; provided, however, that in the case of each such transfer, it shall be a condition to the transfer that (1) the transferee execute an agreement stating that the transferee agrees to be bound by the restrictions contained in this Agreement, (2) any such transfer shall not involve a disposition for value, (3) such transfer is not required to be reported in any public report or filing with the Securities and Exchange Commission or otherwise and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers. For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Furthermore, the undersigned may sell shares of Common Stock of the Company purchased by the undersigned in the open market following the Public Offering. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners LLC (which consent may be withheld in its sole discretion) it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration under the Securities Act of 1993, as amended, of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. With respect to the Public Offering, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock, or any securities convertible into or exercisable or exchangeable for Common Stock, owned either of record or beneficially by the undersigned, including any rights to receive notice of the Public Offering. The undersigned understands that whether or not the Public Offering actually occurs depends on a number of factors, including stock market conditions. The Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation among the Company and the Underwriters. If the Public Offering does not close by October 31, 2005, this Agreement shall terminate immediately upon such date and be of no further force and effect. The undersigned agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock held by the undersigned except in compliance with the foregoing restrictions. This Agreement is irrevocable and will be binding on the undersigned and the respective successors, heirs, personal representatives, and assigns of the undersigned. This lock-up agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof. Very truly yours, (Name) (Address) EXHIBIT C Parties to Lock-Up Agreements
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