Exhibit B LOCK-UP LETTER AGREEMENT
Exhibit B
BARCLAYS CAPITAL INC.
XXXXX XXXXXXX & CO.
As Representatives of the several
Underwriters named in Schedule I
of the Underwriting Agreement,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXX XXXXXXX & CO.
As Representatives of the several
Underwriters named in Schedule I
of the Underwriting Agreement,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the
“Underwriters”) propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) providing for the purchase by the Underwriters of
shares (the “Stock”) of Common Stock, par value $0.001 per share (the “Common
Stock”), of Pacira Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and that the Underwriters propose to reoffer the Stock to the public (the
“Offering”).
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Barclays
Capital Inc. and Xxxxx Xxxxxxx & Co., on behalf of the Underwriters, the
undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge,
or otherwise dispose of (or enter into any transaction or device that is designed
to, or could be expected to, result in the disposition by any person at any time
in the future of) any shares of Common Stock (including, without limitation,
shares of Common Stock that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and
Exchange Commission and shares of Common Stock that may be issued upon exercise
of any options or warrants) or securities convertible into or exercisable or
exchangeable for Common Stock, (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, (3) make any demand for
or exercise any right or cause to be filed a registration statement, including
any amendments thereto, with respect to the registration of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock or any other securities of the Company, or (4) publicly disclose the
intention to do any of the foregoing for a period commencing on the date hereof
and ending on the 180th day after the date of the final prospectus
used to sell the Stock (such 180-day period, the “Lock-Up Period”) pursuant to
the Underwriting Agreement.
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up
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
Lock-Up Period, the Company announces that it will release earnings results
during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Letter Agreement 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 occurrence of the material event,
unless the Representatives waive such extension in writing. The undersigned
hereby acknowledges that the Company has agreed in the Underwriting Agreement to
provide written notice of any event that would result in an extension of the
Lock-Up Period pursuant to the previous sentence to the undersigned (in
accordance with Section 5(x) of the Underwriting Agreement) and agrees that any
such notice properly delivered will be deemed to have given to, and received by,
the undersigned. The undersigned hereby further agrees that, prior to engaging
in any transaction or taking any other action that is subject to the terms of
this Lock-Up Letter Agreement during the period from the date of this Lock-Up
Letter Agreement to and including the 34th day following the
expiration of the Lock-Up Period, it will give notice thereof to the Company and
will not consummate such transaction or take any such action unless it has
received written confirmation from the Company that the Lock-Up Period (as such
may have been extended pursuant to this paragraph) has expired. Notwithstanding
the foregoing or anything to the contrary herein, the restrictions contained in
this Lock-Up Letter Agreement shall not apply to (i) shares of Common Stock
acquired in open market transactions by the undersigned after the consummation of
the Offering, (ii) bona fide gifts, shares transferred by will or intestate
succession, sales or other dispositions of shares of any class of the Company’s
capital stock, in each case that are made exclusively between and among the
undersigned or members of the undersigned’s family, or affiliates of the
undersigned, including its partners (if a partnership) or members (if a limited
liability company), (iii) shares of the Company’s capital stock transferred to
any corporation, partnership, limited liability company, or other entity all of
beneficial ownership interests of which are held by the undersigned, the
undersigned’s family or affiliates of the undersigned, (iv) the exercise of stock
options to purchase shares of Common Stock granted under an equity incentive plan
of the Company; provided that any shares of Common Stock obtained by such
exercise or exchange shall remain subject to the terms of this Lock-Up Letter
Agreement, and (v) shares of Common Stock acquired as a participant in the
Offering; provided that, in the case of clauses (ii), (iii) and (iv) above, it
shall be a condition to any such transfer that (a) the transferee/donee agrees to
be bound by the terms of this Lock-Up Letter Agreement (including, without
limitation, the restrictions set forth in the preceding sentence) to the same
extent as if the transferee/donee were a party hereto, (b) each party (donor,
donee, transferor or transferee) shall not be required by law (including without
limitation the disclosure requirements of the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) to
make, and shall agree to not voluntarily make, any public announcement of the
transfer or disposition, and (c) the undersigned notifies Barclays Capital Inc,
and Xxxxx Xxxxxxx & Co. at least two business days prior to the proposed transfer
or disposition; provided further that no filing by any party (donor, donee,
transferor or transferee) under the Exchange Act shall be required or shall be
voluntarily made in connection with such transfer or distribution (other than, a
filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after
the expiration of the 180-day period referred to above).
The restrictions set forth in this Lock-Up Letter Agreement shall not apply
to the establishment of a trading plan that complies with Rule 10b5-1 under the
Exchange Act; provided however, that no sales shall be made pursuant to such
trading plan during the Lock-Up Period.
In furtherance of the foregoing, the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies the Underwriters that it does
not intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Stock, or in the event that the Underwriting
Agreement has not been executed on or before March 31, 2011, the undersigned will
be released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between the
Company and the Underwriters.
[Signature page follows]
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Very truly yours, |
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By: | ||||
Dated: | ||||