ARBORGEN INC. [•] Shares Common Stock ($0.001 par value) Underwriting Agreement
Exhibit 1.1
[•] Shares
Common Stock
($0.001 par value)
Common Stock
($0.001 par value)
Xxxxxxx, Xxxxx & Co.
Citigroup Global Markets Inc.
As Representatives of the several Underwriters,
Citigroup Global Markets Inc.
As Representatives of the several Underwriters,
c/o | Goldman, Sachs & Co. 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
c/o | Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
ArborGen Inc., a corporation organized under the laws of Delaware (the “Company”), proposes to
sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, [•] shares of common stock, $0.001 par value
(“Common Stock”) of the Company (said shares to be issued and sold by the Company being hereinafter
called the “Underwritten Securities”). The Company also proposes to grant to the Underwriters an
option to purchase up to [•] additional shares of Common Stock (the “Option Securities”; the Option
Securities, together with the Underwritten Securities, being hereinafter called the “Securities”).
To the extent there are no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires. Certain terms used
in this Underwriting Agreement (the “Agreement”) are defined in Section 21 hereof. As the
Representatives, you have advised the Company that (a) you are authorized to enter into this
Agreement on behalf of the several Underwriters and (b) the several Underwriters are willing,
acting severally and not jointly, to purchase the amount of the Underwritten Securities set forth
opposite such Underwriter’s name in Schedule I hereto, plus their pro rata portion of the Option
Securities if the Representatives elect to exercise the Option Securities as set forth in Section
2(b) in whole or in part for the accounts of the several Underwriters.
1. Representations and Warranties. The Company represents and warrants to and agrees
with each Underwriter that:
(a) The Company has prepared and filed with the Commission a registration statement on
Form S-1 (file number 333-169720), including a related preliminary prospectus, for
registration under the Securities Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the Execution Time,
has become effective. The Company may have filed one or more amendments thereto, including
a related preliminary prospectus, each of which has previously been furnished to you. No
stop order suspending the effectiveness of the Registration Statement has been issued and,
to the knowledge of the Company, no proceeding for that purpose has been initiated or
threatened by the Commission.
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and on the Effective Date,
the Registration Statement did, and when the Prospectus is first filed in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a “settlement date”), the
Prospectus (and any supplement thereto) will, comply in all material respects with the
applicable requirements of the Securities Act and the rules thereunder. On the Effective
Date and at the Execution Time, the Registration Statement 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 in order to make the statements therein not misleading; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement date, the
Prospectus (together with any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any supplement thereto) based upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto), it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such
in Section 8 hereof.
(c) (i) The Disclosure Package and the price to the public, the number of Underwritten
Securities and the number of Option Securities to be included on the cover page of the
Prospectus, when taken together as a whole and (ii) each electronic road show when taken
together as a whole with the Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities to be included on the cover page
of the Prospectus, as of the Execution Time, does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion therein, it
being understood and agreed that the
2
only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement and (ii) as of the Execution
Time (with such date being used as the determination date for purposes of this clause (ii)),
the Company was not and is not an “Ineligible Issuer” (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405 that it is not
necessary that the Company be considered an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(f) Each of the Company and its subsidiaries (i) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate (or other) power and authority to own
or lease, as the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Prospectus, and (ii) is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure to be so qualified
or in good standing would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the condition (financial or otherwise), earnings, business
or properties of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business (a “Material Adverse Effect”).
(g) The Company has an authorized capitalization as set forth in the Disclosure Package
and the Prospectus and all of the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and nonassessable and conform
to the description of the Common Stock contained in the Disclosure Package and Prospectus
under the heading “Description of Capital Stock”; and all the outstanding shares of capital
stock of each subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable; and, except as otherwise set forth in the Disclosure Package and the
Prospectus, all outstanding shares of capital stock of the subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or encumbrances.
(h) The Underwritten Securities and the Option Securities to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein,
3
will be duly and validly issued and fully paid and non assessable and will conform to
the description of the Common Stock contained in the Prospectus;
(i) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required (and the Preliminary Prospectus contains in all
material respects the same description of the foregoing matters contained in the
Prospectus); and the statements in the Preliminary Prospectus and the Prospectus under the
headings “Risk Factors—Commercialization of our biotechnology products is dependent on
regulatory approval,” “Risk Factors—Our patents and other protective measures may not
adequately protect our technology, and any loss of our intellectual property or unauthorized
use of our technology by others could materially adversely affect our sales and results of
operations,” “Business—Intellectual Property,” “Business—Government Regulation,”
“Business—Legal Proceedings,” “Description of Capital Stock,” “Shares Eligible for Future
Sale,” “United States Tax Consequences for Non-U.S. Stockholders” and “Underwriting” insofar
as such statements summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters, agreements, documents or
proceedings.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) The Company is not and, after giving effect to the offering and sale of the
Securities to be issued and sold by the Company and the application of the proceeds thereof
as described in the Disclosure Package and the Prospectus, will not be an “investment
company” as defined in the Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Securities Act, the Exchange Act, the
listing rules of the NASDAQ Global Market, the applicable rules of the Financial Industry
Regulatory Authority (“FINRA”) and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Disclosure Package and the
Prospectus.
(m) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation of, or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the
charter or by-laws of the Company or any of its subsidiaries, (ii) any agreement or other
obligation, condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except, in the case of clauses (ii)
4
and (iii), for such breach or violation as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or a material adverse effect on the
performance of this Agreement or the consummation of any of the transactions contemplated
hereby.
(n) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement other than pursuant to the Stockholders
Agreement filed as Exhibit 4.2 to the Registration Statement.
(o) The consolidated historical financial statements of the Company and its
consolidated subsidiaries included in the Preliminary Prospectus, the Prospectus and the
Registration Statement, together with the related schedules and notes, present fairly in all
material respects the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to form with the applicable
accounting requirements of the Securities Act and have been prepared in conformity with U.S.
generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout
the periods involved (except as otherwise noted therein). The financial data set forth
under the captions “Summary Consolidated Financial Data” and “Selected Consolidated
Financial Data” in the Preliminary Prospectus, the Prospectus and Registration Statement
fairly present in all material respects, on the basis stated in the Preliminary Prospectus,
the Prospectus and the Registration Statement, the information included therein.
(p) Since the respective dates as of which information is given in the Registration
Statement and the Preliminary Prospectus, 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 change,
or any development involving a prospective material adverse change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package and the
Prospectus.
(q) Except as set forth in or contemplated in the Disclosure Package and the
Prospectus, 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 or its
or their property is pending or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect.
(r) The Company and its subsidiaries have good and valid title in fee simple to all
real property and good and valid title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are described in the
Disclosure Package and the Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by
5
them under valid, subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(s) Neither the Company nor any subsidiary is in violation or default of (i) any
provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its properties,
as applicable, except, in the case of clauses (ii) and (iii), for such breach or violation
as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby.
(t) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules included in the Disclosure Package
and the Prospectus, are independent public accountants with respect to the Company within
the meaning of the Securities Act and the applicable published rules and regulations
thereunder.
(u) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(v) The Company has filed all tax returns that are required to be filed or has
requested extensions thereof, except in any case in which the failure so to file would not
reasonably be expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Prospectus, and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such tax, assessment, fine or
penalty that is currently being contested in good faith or as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, except as set forth
in or contemplated in the Disclosure Package and the Prospectus.
(w) Except as set forth in or contemplated in the Disclosure Package and the
Prospectus, no labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is threatened or imminent which
would reasonably be expected to have a Material Adverse Effect.
(x) The Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its subsidiaries or
6
their respective businesses, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; and there are no claims by the Company or
any of its subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause; neither the
Company nor any such subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such subsidiary has any reason to believe that it will
not be able to renew, if desired, its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus.
(y) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in or contemplated by the
Disclosure Package and the Prospectus.
(z) The Company and its subsidiaries possess, have been and are in compliance with, all
licenses, certificates, permits and other authorizations issued by any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary necessary to conduct their respective
businesses as described in the Disclosure Package and the Prospectus except where the
failure to so possess such license, certificate, permit or other authorization would not
reasonably be expected to have a Material Adverse Effect, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit, except as set forth in or
contemplated in the Disclosure Package and the Prospectus.
(aa) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. To the Company’s knowledge, since the end
of the Company’s most recent audited fiscal year, there has been no material weakness in the
Company’s internal controls over financial reporting.
(bb) Except as disclosed in the Disclosure Package and the Prospectus, since the date
of the latest audited financial statements included in the Prospectus, there has been no
change in the Company’s internal control over financial reporting that has
7
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(cc) The Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures have been designed to ensure that material information relating to the Company
and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls
and procedures are effective.
(dd) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that would reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(ee) Except as set forth or contemplated in the Disclosure Package and the Prospectus,
the Company and its subsidiaries (i) are in material compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) have received and are in compliance with all
material permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received
written notice of, and, to the knowledge of the Company, are not subject to, any actual or
potential costs or liability under any Environmental Law (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties), except where such
non-compliance with Environmental Laws, failure to receive required permits, licenses or
other approvals, or costs or liability would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as set forth in or
contemplated in the Disclosure Package and the Prospectus, to the Company’s knowledge,
neither the Company nor any of the subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
(ff) None of the following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations
and published interpretations thereunder with respect to a Plan, determined without regard
to any waiver of such obligations or extension of any amortization period; (ii) an audit or
investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension
Benefit Guaranty Corporation or any other federal or state governmental agency or any
foreign regulatory agency with respect to the employment or compensation of employees by any
of the Company or any of its subsidiaries that would reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus; and/or (iii)
8
any breach of any contractual obligation, or any violation of law or applicable
qualification standards, with respect to the employment or compensation of employees by the
Company or any of its subsidiaries that would reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the
Prospectus. Except as set forth in or contemplated in the Disclosure Package and the
Prospectus, no claim has been filed by one or more current or former employees of the
Company or any of its subsidiaries related to their employment that could have a Material
Adverse Effect, and no such claim is reasonably likely to be filed. Except as set forth in
or contemplated in the Disclosure Package and the Prospectus, none of the Company and its
subsidiaries has or could reasonably be expected to have any liability with respect to any
Plan or any other plan, program, agreement or arrangement providing for any retiree medical
or other retiree welfare benefits or a defined level of benefit on death or retirement. For
purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3)
of ERISA) subject to Title IV of ERISA.
(gg) The Company has taken all necessary actions to allow it to, upon the effectiveness
of the Registration Statement, be in compliance with all provisions of the Xxxxxxxx-Xxxxx
Act of 2002 and all rules and regulations promulgated thereunder or implementing the
provisions thereof (the “Xxxxxxxx-Xxxxx Act”) that are then in effect and with which the
Company is required to comply as of the effectiveness of the Registration Statement, and is
actively taking steps to allow it to be in compliance with other provisions of the
Xxxxxxxx-Xxxxx Act not currently in effect, upon the effectiveness of such provisions, or
which will become applicable to the Company at all times after the effectiveness of the
Registration Statement.
(hh) 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 aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”); and the Company, its subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued compliance therewith.
(ii) 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
and the money laundering statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-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 Anti-Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj) 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
9
its subsidiaries is currently subject to any 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.
(kk) The Company is not a United States Real Property Holding Corporation (a “USRPHC”)
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended (the
“Code”), and was not a USRPHC on any “determination date” (as defined in §1.897-2(c) of the
United States Treasury Regulations promulgated under the Code) that occurred since its
incorporation through the Execution Time.
(ll) The subsidiaries listed on Schedule II attached hereto are the only significant
subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X.
(mm) The Company and its subsidiaries own, possess, license or have other rights to use
all patents, patent applications, trade and service marks, trade and service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the “Intellectual Property”)
necessary for the conduct of the Company’s business as now conducted or as proposed in the
Prospectus to be conducted (the “Business”), except where the failure to own, possess,
license or have other rights to use such Intellectual Property would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Except as set
forth in the Preliminary Prospectus and the Prospectus under the caption
“Business—Intellectual Property” or as would not reasonably be expected to have a Material
Adverse Effect, (a) there are no rights of third parties to any Intellectual Property owned
by the Company or its subsidiaries; (b) to the Company’s knowledge, there is no material
infringement by third parties of any such Intellectual Property; (c) there is no pending or,
to the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; (d) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any such Intellectual Property, and the Company
is unaware of any facts which would form a reasonable basis for any such claim; (e) there is
no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company’s operation of the Business infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of others; (f) to the
Company’s knowledge, there is no U.S. patent which contains claims that dominate or may
dominate any Intellectual Property described in the Disclosure Package and the Prospectus as
being owned by or licensed to the Company; and (g) there is no prior art of which the
Company is aware that may render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not been disclosed to the U.S.
Patent and Trademark Office.
10
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company,
at a purchase price of $[•] per share, the amount of the Underwritten Securities set forth opposite
such Underwriter’s name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several Underwriters
to purchase, severally and not jointly, up to [•] Option Securities at the same purchase
price per share as the Underwriters shall pay for the Underwritten Securities. Said option
may be exercised in whole or in part at any time on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the Company
setting forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of Option
Securities to be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments
as you in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised
on or before the third Business Day immediately preceding the Closing Date) shall be made at 10:00
AM, New York City time, on [•], 2011, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Company will deliver the Option Securities (at the
expense of the Company) to the Representatives on the date specified by the Representatives (which
shall be within three Business Days after exercise of said option) for the respective accounts of
the several Underwriters, against payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement
11
for the Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Agreements of the Underwriters. Each Underwriter severally covenants with the
Company not to take any action, without the prior consent of the Company, that would result in the
Company being required to file with the Commission under Rule 433(d) of the Securities Act a Free
Writing Prospectus prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder, but for the action of the Underwriter.
5. Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Without the prior consent of the Representatives, the Company has not made and will
not make any offer relating to the Securities that would constitute a Free Writing
Prospectus. Any such Free Writing Prospectus the use of which has been consented to by the
Representatives is listed on Schedule III hereto.
(b) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or supplement to which you
reasonably object. The Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. As filed, such final prospectus shall comply in all
material respects with the Securities Act and the rules thereunder and, except to the extent
the Representatives shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made therein. The Company
will file any material required to be filed pursuant to Rule 433(d) under the Securities Act
within the applicable time periods prescribed for such filings by Rule 433 and has satisfied
and will satisfy the conditions under Rule 433 to avoid a requirement to file with the
Commission any electronic road show. The Company will promptly advise the Representatives
(i) when the Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (ii) when, prior to termination of the offering
of the Securities, any amendment to the Registration Statement shall have been filed or
become effective, (iii) of any request by the Commission or its staff for any amendment of
the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement
to the Prospectus or for any additional information, (iv) of the issuance by the
12
Commission of any stop order suspending the effectiveness of the Registration Statement
or of any notice objecting to its use or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the occurrence of any such
suspension or objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop
order or relief from such occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective as soon as
practicable.
(c) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Disclosure Package would include any untrue statement
of a material fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made at such time not
misleading or any information in any Issuer Free Writing Prospectus would conflict with the
information contained in the Registration Statement, the Company will (i) notify promptly
the Representatives so that any use of the Disclosure Package may cease until it is amended
or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement,
omission or conflict; and (iii) supply any amendment or supplement to you in such quantities
as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as
then supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made or the circumstances then prevailing not misleading, or if it
shall be necessary to amend the Registration Statement or supplement the Prospectus to
comply with the Securities Act or the rules thereunder, the Company promptly will (i) notify
the Representatives of any such event; (ii) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance; and (iii) supply any
supplemented Prospectus to you in such quantities as you may reasonably request.
(e) As soon as reasonably practicable, the Company will make generally available to its
security holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158.
(f) Upon request, the Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement (without exhibits
thereto) and to each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
13
Underwriter or dealer may be required by the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of each
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Representatives may reasonably request.
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may reasonably request and
will maintain such qualifications in effect so long as reasonably required for the
distribution of the Securities; provided that in no event shall the Company be obligated to:
(i) qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it is not now so
subject, or (ii) to subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h) The Company will not, without the prior written consent of each of the
Representatives, offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act, any other shares of Common Stock, any options or warrants
to purchase any shares of Common Stock, or any securities convertible into, or exercisable,
or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any
such transaction, for a period of 180 days after the date of the Underwriting Agreement.
The restrictions contained in the preceding sentence shall not apply to (i) the Securities
to be sold hereunder, (ii) the issuance by the Company of shares or options to purchase
shares of Common Stock pursuant to the Company’s equity plans disclosed in the Prospectus,
(iii) the issuance by the Company of shares of Common Stock upon the conversion or exchange
of a security outstanding at the Execution Time, (iv) the issuance by the Company of any
shares of Common Stock pursuant to the terms of any appreciation rights outstanding at the
Execution Time or (v) the filing by the Company of a Registration Statement on Form S-8 or a
successor form thereto. Notwithstanding the foregoing, if (x) during the last 17 days of
the 180-day restricted period the Company issues an earnings release or announces material
news or a material event, or a material event relating to the Company occurs, or (y) prior
to the expiration of the 180-day restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the 180-day
period, the restrictions imposed in this clause shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the announcement
of the material news or the announcement or occurrence of a material event. The Company
will provide the Representatives and each individual subject to the restricted period
pursuant to the lockup letters described in Section 6(o) with prior notice of any such
announcement that gives rise to an extension of the restricted period.
14
(i) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that would reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each
Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the Securities; (v)
the registration of the Securities under the Exchange Act and the listing of the Securities
on the NASDAQ Global Market; (vi) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several states (including filing
fees and the reasonable and documented fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings required to be made with
FINRA (including filing fees and the reasonable and documented fees and expenses of counsel
for the Underwriters relating to such filings, provided that such fees and expenses are not
to exceed $20,000); (viii) the transportation, lodging and other expenses incurred by or on
behalf of Company representatives in connection with presentations to prospective purchasers
of the Securities; (ix) one-half of the cost of any aircraft chartered in connection with
the roadshow; (x) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company; and (x) all other
costs and expenses incident to the performance by the Company of its obligations hereunder.
It is understood, however, that, except as provided in this Section 5(j), Section 7 and
Section 8, the Underwriters will pay (i) the transportation, lodging and other expenses
incurred by or on behalf of the Underwriters’ representatives in connection with
presentations to prospective purchasers of the Securities; (ii) any advertising expenses
connected with any offers they make; (iii) except as set forth in clauses (vi) and (vii)
above, the fees and disbursements of their counsel (including any local and special
counsel); and (iv) one-half the cost of any aircraft chartered in connection with the
roadshow.
(k) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that
15
would otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained by the Company under
Rule 433; provided that the prior written consent of the parties hereto shall be deemed to
have been given in respect of the Free Writing Prospectuses included in Schedule III hereto
and any electronic road show. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(l) To furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of income, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail; provided, that the Company may satisfy the requirements of
this subsection by making such reports or information generally available on its website or
by filing such information via the Commission’s XXXXX system.
(m) During a period of three years from the effective date of the Registration
Statement, to furnish to you upon written request copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to you (i) as
soon as they are available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission).
(n) To use its best efforts to list, subject to notice of issuance, the Common Stock on
the NASDAQ Global Market.
(o) To file with the Commission such information on Form 10-Q or Form 10-K as may be
required by Rule 463 under the Securities Act.
(p) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Securities Act;
16
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); any material required to be filed by the
Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the
Commission within the applicable time periods prescribed for such filings by Rule 433; and
no stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that purpose shall have
been instituted or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Xxxxxxx Procter LLP, counsel for the
Company, to have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, in substantially the form attached hereto as Exhibit B.
(c) The Company shall have requested and caused Arent Fox LLP, counsel for the Company,
to have furnished to the Representatives their opinion, dated the Closing Date and addressed
to the Representatives, to the effect that the statements in the Disclosure Package and the
Prospectus under the captions “Risk Factors—Commercialization of our biotechnology products
is dependent on regulatory approval” and “Business—Government Regulation—U.S. Regulatory
Process” insofar as such statements constitute summaries of legal or regulatory matters in
the United States and documents or proceedings referred to therein, are accurate in all
material respects and fairly summarize the matters referred to therein.
(d) The Company shall have requested and caused Xxxxxx Xxxxx Leibler, Australian
counsel for the Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, in substantially the form attached hereto
as Exhibit C.
(e) The Company shall have requested and caused Xxxxxx Hartford & Partners, New Zealand
counsel for the Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, , in substantially the form attached
hereto as Exhibit D.
(f) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Securities, the
Registration Statement, the Disclosure Package, the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such
17
documents as they reasonably request for the purpose of enabling them to pass upon such
matters.
(g) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chief Executive Officer and Chief Financial Officer, dated the
Closing Date, to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Prospectus and any amendment or
supplement thereto, as well as each electronic road show used in connection with the
offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement
are true and correct on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Disclosure Package and the Prospectus, there has been no material
adverse effect on the condition (financial or otherwise), stockholders’
equity, prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Disclosure Package and the Prospectus.
(h) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chief Executive Officer, dated the Closing Date, to the effect that
the signer of such certificate confirms that:
(i) the Company has obtained such licenses, certificates, permits,
approvals, variances, waivers and other authorizations required by the USDA
that are necessary for the conduct of the business of the Company as it is
currently conducted and described in the Disclosure Package and the
Prospectus and, to the Company’s knowledge, such are in full force and
effect;
(ii) except as described in the Registration Statement, the Company is
not aware of any lawsuit or regulatory proceeding, pending or threatened,
brought by or before the USDA, in which the Company is or would be the
defendant or respondent, nor is the Company aware of any adverse judgment,
decree, or order currently in effect that has been issued by the USDA
against the Company; and
18
(iii) except as described in the Registration Statement, no action,
suit or proceeding by or before any court of governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries
or its or their property is pending or, to the knowledge of the Company,
threatened that (1) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (2) could reasonably be expected to
have a Material Adverse Effect.
(i) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chief Financial Officer, dated the Closing Date, in substantially the
form attached hereto as Exhibit E.
(j) The Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date, letters,
dated respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Securities Act and the Exchange Act and the applicable
rules and regulations adopted by the Commission thereunder and that they have performed a
review of the unaudited interim financial information of the Company for the nine-month
period ended December 31, 2010 and as at December 31, 2010, in accordance with Statement on
Auditing Standards No. 100 and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included in the Registration Statement, the Preliminary
Prospectus and the Prospectus and reported on by them comply as to form with
the applicable accounting requirements of the Securities Act and the related
rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their limited
review, in accordance with standards established under Statement on Auditing
Standards No. 100, of the unaudited interim financial information for the
nine-month period ended December 31, 2010 and as at December 31, 2010, as
indicated in their report dated [•], 2011; carrying out certain specified
procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
compensation and audit committees of the Company and the subsidiaries; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to March 31, 2010, nothing came to their
attention which caused them to believe that:
19
(1) any unaudited financial statements included in the Registration Statement,
the Preliminary Prospectus and the Prospectus do not comply as to form with
applicable accounting requirements of the Securities Act and with the related rules
and regulations adopted by the Commission with respect to registration statements on
Form S-1; and said unaudited financial statements are not in conformity with GAAP
applied on a basis substantially consistent with that of the audited financial
statements included in the Registration Statement, the Preliminary Prospectus and
the Prospectus;
(2) with respect to the period subsequent to December 31, 2010, there were any
changes, at a specified date not more than five days prior to the date of the
letter, in the capital stock of the Company, increase in long-term debt of the
Company and its subsidiaries decreases in the stockholders’ equity of the Company or
working capital of the Company and its subsidiaries as compared with the amounts
shown on the December 31, 2010 consolidated balance sheet included in the
Registration Statement, the Preliminary Prospectus and the Prospectus, or for the
period from January 1, 2011 to such specified date there were any decreases, as
compared with the corresponding period in 2010, in revenue or gross profit or
increases in net loss of the Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement, the Preliminary
Prospectus and the Prospectus in response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement,
the Preliminary Prospectus and the Prospectus, including the information set
forth under the captions “Summary Consolidated Financial Data,” “Selected
Consolidated Financial Data” and “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” in the Preliminary Prospectus
and the Prospectus, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (j) include any supplement thereto at
the date of the letter.
20
The Company shall have received from PricewaterhouseCoopers LLP (and furnished to
the Representatives) a report with respect to a review of unaudited interim financial
information of the Company for the eight quarters ending March 31, 2010, in accordance with
Statement on Auditing Standards No. 100.
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in paragraph (j) of
this Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any amendment
thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(l) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(n) The Securities shall have been listed and admitted and authorized for trading on the
NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the
Representatives.
(o) At the Execution Time, the Company shall have furnished to the Representatives a letter
substantially in the form of Exhibit A hereto from each director, officer and stockholder of the
Company.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
21
The documents required to be delivered by this Section 6 shall be delivered at the office of
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx,
XX 00000, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through the Representatives
on demand for all out-of-pocket expenses (including reasonable and documented fees and
disbursements of counsel) that shall have been reasonably incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act and each affiliate of any Underwriter within the meaning
of the Securities Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or in any amendment thereof, or in
any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or
in any amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives specifically
for inclusion therein.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity.
22
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, promptly notify the
indemnifying party in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it has been materially prejudiced through the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be responsible for the
reasonable and documented fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable and documented fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those available
to the indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding and (ii) does not
include a statement as to, or an admission of, fault, culpability or failure to act, by or
on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company on
23
the one hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information provided by the Company on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Securities Act or the
Exchange Act and each affiliate, director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if such nondefaulting
24
Underwriters do not purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by written notice given to the Company prior to delivery of and
payment for the Securities, if at any time prior to such delivery and payment (i) trading in the
Company’s Common Stock shall have been suspended by the Commission or the NASDAQ Global Market or
trading in securities generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Preliminary Prospectus or the
Prospectus.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Xxxxxxx,
Sachs & Co., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Registration Department (fax
no.: (000) 000-0000) and Citigroup Global Markets Inc., General Counsel (fax no.: (000) 000-0000)
and confirmed to the General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to ArborGen Inc., 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx, 00000,
attention: Xxxxxxxx X. Clear, Senior Vice President and Chief Financial Officer (fax no.: (000)
000-0000), with a copy to Xxxxxxx Procter LLP, Exchange Place, Boston, Massachusetts 02109,
attention: Xxxx X. Xxxxxxxxxxx (fax no.: (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
25
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Company on related or other matters). The Company agrees that
it will not claim that the Underwriters have rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Tax Disclosure. Notwithstanding anything herein to the contrary, the Company is
authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company relating to that treatment and structure, without the
Underwriters imposing any limitation of any kind. However, any information relating to the tax
treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply)
to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax
structure” is limited to any facts that may be relevant to that treatment.
20. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
21. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
26
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Preliminary Prospectus that is generally distributed
to investors and used to offer the Securities, (ii) the Issuer Free Writing Prospectuses, if any,
identified in Schedule III hereto, and (iii) any other Free Writing Prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or
becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus referred to in paragraph 1(a)
above and any preliminary prospectus included in the Registration Statement at the Effective Date
that omits Rule 430A Information.
“Prospectus” shall mean the prospectus relating to the Securities that is first filed pursuant
to Rule 424(b) after the Execution Time.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430A, as amended at the Execution Time and, in the event
any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430A” and “Rule 433” refer to such rules under the Securities Act.
“Rule 430A Information” shall mean information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant
to Rule 430A.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration
statement referred to in Section 1(a) hereof.
27
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
[Remainder of page intentionally left blank.]
28
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
Very truly yours, ARBORGEN INC. |
||||
By: | ||||
Name: | ||||
Title: |
The foregoing Agreement is hereby confirmed and accepted as of the date first above written. XXXXXXX, SACHS & CO. |
||||
By: | ||||
(Xxxxxxx, Xxxxx & Co.) | ||||
CITIGROUP GLOBAL MARKETS INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
For themselves and the other several Underwriters named in Schedule I to the foregoing Agreement. |
||||
SCHEDULE I
Number of Underwritten Securities | ||
Underwriters | to be Purchased | |
Xxxxxxx, Sachs & Co. |
||
Citigroup Global Markets Inc. |
||
Xxxxx Xxxxxxx & Co. |
||
RBC Capital Markets LLC |
||
Total
|
SCHEDULE II
Subsidiaries
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package