EXHIBIT 1.1
____________ SHARES
CUBIST PHARMACEUTICALS, INC.
COMMON STOCK, $0.001 PAR VALUE
UNDERWRITING AGREEMENT
October __, 2003
October __, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
Pacific Growth Equities, LLC
XX Xxxxxxxxx+Co, LLC
Xxxxxx Xxxxxx Xxxxxx, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Cubist Pharmaceuticals, Inc, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") __________ shares of its Common Stock, $0.001 par
value (the "FIRM SHARES"). The Company also proposes to issue and sell to the
several Underwriters not more than an additional ___________ shares of its
Common Stock, $0.001 par value (the "ADDITIONAL SHARES"), if and to the extent
that you, as Managers of the offering, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such shares of common stock
granted to the Underwriters in Section 2 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "SHARES." The
shares of Common Stock, $0.001 par value of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (File No. 333-103660) (the
"S-3 REGISTRATION STATEMENT"), including a prospectus (the "BASE PROSPECTUS"),
relating to the Shares, and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
final prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating
to the Shares pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the S-3
Registration Statement, including the exhibits thereto, as amended to the date
of this Agreement. If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include
such Rule 462 Registration Statement. The term "PROSPECTUS" means the Base
Prospectus together with the Prospectus Supplement. The term "PRELIMINARY
PROSPECTUS" means a preliminary prospectus supplement specifically relating to
the Shares, together with the Base Prospectus. All references to the
Registration Statement, Base Prospectus, preliminary prospectus or Prospectus
shall include in each case the documents, if any, incorporated therein by
reference. The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this
Agreement with respect to the Registration Statement or the Prospectus shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), that are deemed to be incorporated by reference in the Registration
Statement or the Prospectus, including without limitation any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the S-3 Registration Statement that is deemed
to be incorporated by reference in the Registration Statement.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the knowledge
of the Company, threatened by the Commission. The Company has previously
furnished to you, without charge, conformed copies of the Registration
Statement (without exhibits thereto but including documents incorporated by
reference) for delivery to each of the Underwriters.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) the Registration
Statement, when it became effective and as of the date of filing of the
Company's Annual Report on Form 10-K for the year ended December 31, 2002,
did not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole (a "COMPANY MATERIAL ADVERSE
EFFECT").
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as an entity in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Company Material Adverse Effect; all of the issued shares of capital stock
of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly by the
Company or a subsidiary of the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus.
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(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of the Shares will
not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of (i) applicable law, (ii) the certificate of incorporation
or by-laws of the Company, (iii) any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or (iv) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, except with respect to clauses (i), (iii)
and (iv) for any contraventions that would not, singly or in the aggregate,
have a Company Material Adverse Effect. No consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, except (i) such as have been obtained or made under the
Securities Act or the rules and regulations of the Nasdaq National Market,
(ii) such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares or (iii)
such as may be required by the rules and regulations of the National
Association of Securities Dealers, Inc. in connection with the purchase and
distribution of the Shares (other than those relating to the Nasdaq
National Market).
(j) Subsequent to the respective dates as of which information is
given in the Prospectus, there has not occurred any material adverse
change, or any development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(l) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(n) The Company and its subsidiaries (i) are in 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 all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply
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with the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a Company Material Adverse Effect.
(o) There are no costs or liabilities associated with Environmental
Laws (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) which would, singly or in the aggregate, have a Company Material
Adverse Effect.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement, except for such rights as have been duly waived.
(q) The information contained in the Registration Statement and
Prospectus concerning the issued patents and pending patent applications,
owned by or licensed to the Company or any of its subsidiaries, which are
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, in the manner in which it has been and is
contemplated to be conducted as described in the Prospectus (the "PATENT
RIGHTS"), is accurate in all material respects. The Company and its
subsidiaries own or have valid, binding, enforceable licenses or other
rights to use any patents, trademarks, trade names, service marks, service
names, copyrights, confidential and proprietary information, including
trade secrets, know-how, inventions and technology, whether patented or
not, proprietary computer software and other intellectual property rights
(collectively, the "INTELLECTUAL PROPERTY") necessary to conduct the
business of the Company and its subsidiaries, taken as a whole, in the
manner in which it has been and is contemplated to be conducted, as
described in the Prospectus, and without any conflict with the rights of
others, except as described in the Prospectus and except for such conflicts
which, if determined adversely to the Company or any of its subsidiaries,
would not have, singly or in the aggregate, a Company Material Adverse
Effect. Neither the Company nor any of its subsidiaries has knowledge that,
or has received any notice from any other person alleging that, the
business of the Company or any of its subsidiaries in the manner in which
it has been and is contemplated to be conducted, as described in the
Prospectus, conflicts with the Intellectual Property rights of others,
except for such conflicts which, if determined adversely to the Company or
any of its subsidiaries, would not have, individually or in the aggregate,
a Company Material Adverse Effect.
(r) All patent applications in the Patent Rights have been duly and
properly filed or caused to be filed with the United States Patent and
Trademark Office ("PTO") and, in some cases, applicable foreign and
international patent authorities, and assignments for all patents and/or
patent applications in the Patent Rights have been properly executed and
recorded for each named inventor. To the knowledge of the Company, all
printed publications and patent references material to the patentability of
the inventions claimed in the Patent Rights have been disclosed to those
patent offices so requiring. To the knowledge of the Company, each of the
Company, its assignors or its licensors, as applicable, has met its duty of
candor and good faith to the PTO for the Patent Rights. To the knowledge of
the Company, no material misrepresentation has been made to any patent
office in connection with the Patent Rights. The Company and its
subsidiaries are not aware or any facts material to a determination of
patentability regarding the Patent Rights not disclosed to the PTO or other
applicable patent office. The Company and its subsidiaries are not aware of
any facts not disclosed to the PTO or other applicable patent office which
would preclude the patentability, validity or enforceability of an patent
or patent application in the Patent Rights. The Company has no knowledge of
any facts which would preclude the Company or its licensor, as applicable,
from having clear title to the patents and patent applications in the
Patent
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Rights. To the Company's knowledge, the patents in the Patent Rights
are valid and enforceable, and have not been adjudged invalid or
unenforceable in whole or in part.
(s) To the knowledge of the Company, no third party is engaging in any
activity that infringes, misappropriates or otherwise violates the
Intellectual Property owned by or licensed to the Company or any of its
subsidiaries, except as described in the Prospectus or except for such
activities which, individually or in the aggregate, would not have a
Company Material Adverse Effect.
(t) With respect to each material agreement governing rights in and to
any Intellectual Property licensed by or licensed to the Company or any of
its subsidiaries, (i) such agreement is valid and binding and in full force
and effect against the Company or the subsidiary of the Company that is
party to such material agreements, and, to the knowledge of the Company,
each other party thereto; (ii) none of the Company or its subsidiaries has
received any notice of termination or cancellation under such agreement,
which notice of termination or cancellation has not been withdrawn,
received any notice of breach or default under such agreement, which breach
has not been cured, and granted to any third party any rights, adverse or
otherwise, under such agreement that would constitute a material breach of
such agreement; and (iii) none of the Company, any of its subsidiaries or,
to Company's knowledge, any other party to such agreement, is in breach or
default thereof in any material respect, and no event has occurred that,
with notice or lapse of time, would constitute such a material breach or
default or permit termination, modification or acceleration under such
agreement.
(u) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, including without limitation all such certificates,
authorizations and permits required by the United States Food and Drug
Administration (the "FDA") or any other federal, state or foreign agencies
or bodies engaged in the regulation of pharmaceuticals or biohazardous
materials, except where the failure to so possess such certificates,
authorizations and permits, singly or in the aggregate, would not have a
Company Material Adverse Effect; and neither the Company or any of its
subsidiaries have received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Company Material Adverse Effect.
(v) The studies, tests and preclinical trials, conducted by or on
behalf of the Company that are described in the Prospectus were and, if
still pending, are being, conducted in all material respects in accordance
with experimental protocols, procedures and controls pursuant to, where
applicable, accepted professional scientific standards; the descriptions of
the results of such studies, tests and trials contained in the Prospectus
are accurate in all material respects; and neither the Company or any of
its subsidiaries has received any notices or correspondence from the FDA or
any foreign, state or local governmental body exercising comparable
authority requiring the termination, suspension or material modification of
any studies, tests or preclinical or clinical trials conducted by or on
behalf of the Company which termination, suspension or material
modification would have a Company Material Adverse Effect.
(w) PricewaterhouseCoopers LLP are, and during the periods covered in
its report included in the Registration Statement and the Prospectus were,
independent accountants with respect to the Company as required by the
Securities Act and the rules and regulations of the Commission thereunder.
(x) The consolidated financial statements of the Company and its
subsidiaries (together with the related notes thereto) incorporated by
reference in the Registration Statement and the Prospectus (i) complied as
to form, as of their respective dates of filing with the Commission, in all
material respects with applicable accounting requirements and the published
rules and regulations of the Commission with respect thereto (including
Regulation S-X), (ii) have been prepared in accordance with
5
generally accepted accounting principles in the United States (except in
the case of unaudited statements, to the extent permitted by Regulation S-X
for quarterly reports on Form 10-Q) applied on a consistent basis during
the periods and at the dates involved (except as may be indicated in the
notes thereto) and (iii) fairly present, in all material respects, the
consolidated financial condition and results of the operations and cash
flows of the Company and its subsidiaries as of the respective dates
indicated and for the respective periods specified, subject in the case of
interim periods to normal year-end adjustments. The Company and its
subsidiaries have devised and maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of consolidated financial statements of the Company in
conformity with generally accepted accounting principles as applied in the
United States and to maintain accountability for assets of the Company and
its subsidiaries; (iii) access to assets of the Company and its
subsidiaries is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets of
the Company and its subsidiaries is compared with the existing assets at
regular intervals and appropriate action is taken with respect to with
respect to any differences. The principal executive officer and principal
financial officer of the Company have made all certifications required by
the Xxxxxxxx-Xxxxx Act or any related rules and regulations promulgated by
the Commission, and the statements contained in any such certification are
complete and correct in all material respects. The Company maintains
"disclosure controls and procedures" (as defined in Rule 13a-14(c) under
the Exchange Act), and such controls and procedures are effective (i) to
ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in
the Commission's rules and forms and (ii) to ensure that information
required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is accumulated and communicated to the
Company's management, including its principal executive officer and
principal financial officer, as appropriate to allow timely decisions
regarding required disclosure. The Company does not have any material
weaknesses in its internal controls, and, to the knowledge of the Company,
there has been no fraud, whether or not material, that involves management
or other employees who have a significant role in the Company's internal
controls. The Company is otherwise in compliance in all material respects
with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the
rules and regulations promulgated by the Commission.
(y) No material labor dispute with the employees of the Company or its
subsidiaries exists, or, to the knowledge of the Company, is imminent; and
the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its or its subsidiaries' principal
suppliers, manufacturers or contractors that could be reasonably expected
to have a Company Material Adverse Effect. The Company is not aware that
any key employee or significant group of employees of the Company or any of
the subsidiaries plans to terminate employment with the Company or any of
its subsidiaries.
(z) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company reasonably
believes are adequate for the conduct of its business and are customary in
the businesses in which the Company and its subsidiaries are engaged; and
neither the Company nor any of its subsidiaries has any reason to believe
that it will not be able to renew 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 have a Company Material Adverse Effect.
(aa) Except as otherwise disclosed in the Prospectus, each material
contract, agreement and license filed as an exhibit to the Registration
Statement, the Company's Annual Report on Form 10-K for the year ended
December 31, 2002 or the Company's Quarter Reports on Form 10-Q filed since
6
January 1, 2003, to which the Company or any of its subsidiaries is bound
is legal, valid, binding, enforceable in accordance with its terms and in
full force and effect against the Company or the subsidiary of the Company
that is party to such material contract, agreement or license, and, to the
knowledge of the Company, each other party thereto. Neither the Company nor
any of its subsidiaries nor, to the Company's knowledge, any other party is
in material breach or default with respect to any such contract, agreement
or license, and, to the Company's knowledge, no event has occurred which
with notice or lapse of time would constitute a material breach or default,
or permit termination, modification, or acceleration, under any such
contract, agreement or license. To the Company's knowledge, no party has
repudiated any material provision of any such contract, agreement or
license.
(bb) The Company has filed a notice of listing of the Shares on The
Nasdaq National Market; the Common Stock is registered pursuant to Section
12(g) of the Exchange Act, and the outstanding shares of Common Stock are
listed for quotation on The Nasdaq National Market, and the Company has
taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or de-listing
the Common Stock from The Nasdaq National Market, nor has the Company
received any notification that the Commission or The Nasdaq National Market
is contemplating terminating such registration or listing.
(cc) The statistical and market-related data contained in the
Registration Statement and Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name. The purchase price per Firm Share to be paid by the several
Underwriters to the Company shall be $9.87 per share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 1,118,010 Additional Shares.
The purchase price per Additional Share to be paid by the several Underwriters
to the Company shall be the Purchase Price. You may exercise this right on
behalf of the Underwriters in whole or from time to time in part by giving
written notice of each election to exercise the option not later than 30 days
after the date of this Agreement. Any exercise notice shall specify the number
of Additional Shares to be purchased by the Underwriters and the date on which
such shares are to be purchased. Each purchase date must be at least one
business day after the written notice is given and may not be earlier than the
closing date for the Firm Shares nor later than ten business days after the date
of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On each Option Closing Date (as defined
below), each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased on such Option Closing Date as the number
of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in
7
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (B) the issuance by the Company of shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof that is disclosed in the Prospectus (or pursuant to a plan
disclosed in the Prospectus) or of which the Underwriters have been advised in
writing, (C) the grant by the Company of options to purchase shares of Common
Stock pursuant to the terms of a plan in effect on the date hereof and filed as
an exhibit to the S-3 Registration Statement or to any filing incorporated by
reference therein and (D) issuances of up to 2,000,000 shares of Common Stock
pursuant to collaborative, licensing or marketing agreements.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$____ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by
you at a price that represents a concession not in excess of $______ a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made by wire
transfer of immediately available funds to the order of the Company against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on October _, 2003, or at such
other time on the same or such other date, not later than October _, 2003, as
shall be designated in writing by you. The time and date of such payment for the
Firm Shares are hereinafter referred to as the "CLOSING Date."
Payment for any Additional Shares shall be made by wire transfer of
immediately available funds to the order of the Company against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in Section 2 or at such other time on the same or on such other
date as shall be designated in writing by you, which date shall not be later
than November __, 2003 unless otherwise agreed to in writing by the Company and
you. The time and date of such payment for Additional Shares are hereinafter
referred to as the "OPTION CLOSING Date."
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be. The Firm Shares and Additional Shares shall be delivered to you
on the Closing Date or an Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential
downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
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(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the President and Chief
Executive Officer or the Senior Vice President and Chief Financial Officer
of the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date. The officer signing and delivering such certificate may
rely upon the best of his knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx XxXxxxxxx LLP, outside counsel for the Company, dated
the Closing Date, substantially in the form of Exhibit A attached hereto
addressed to the Underwriters. Counsel rendering the opinion contained in
Exhibit A may rely as to questions of law not involving the laws of the
United States, the Commonwealth of Massachusetts and the General
Corporation Law of the State of Delaware upon opinions of local counsel,
and as to questions of fact upon representations or certificates of
officers of the Company, and of government officials, in which case their
opinion is to state that they are so relying and that they have no
knowledge of any material misstatement or inaccuracy in any such opinion,
representation or certificate. Copies of any opinion, representation or
certificate so relied upon shall be delivered to you, as Representatives,
and to counsel for the Underwriters. Such opinion shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxx and Xxxx LLP, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in paragraphs (5), (7), (9)
and (11) (but only as to the statements in the Prospectus under
"Description of Capital Stock" and "Underwriting"), and the final
paragraph, of the opinion of counsel for the Company set forth in Exhibit A
hereto.
(e) The Underwriters shall have received on the Closing Date an
opinion of Christopher D.T. Guiffrie, the General Counsel of the Company,
dated the Closing Date and substantially in the form of Exhibit B hereto.
(f) The Underwriters shall have received on the Closing Date an
opinion of Fish & Xxxxxxxxxx, special patent counsel for the Company, dated
the Closing Date and substantially in the form of Exhibit C hereto. Such
opinion shall be rendered to the Underwriters at the request of the Company
and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx & Xxxxxxx L.L.P., regulatory counsel for the Company,
dated the Closing Date and substantially in the form of Exhibit D hereto.
Such opinion shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters
and in accordance with SAS 72, from PricewaterhouseCoopers LLP, independent
9
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration Statement
and the Prospectus; PROVIDED that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit E hereto, between you and the executive officers and directors of
the Company relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
(j) No stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Securities Act.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you in New York City, without charge, prior to 10:00
a.m., New York City time, on the business day next succeeding the date of
this Agreement and during the Prospectus Delivery Period (as such term is
defined in Section 6(c) below), as many copies of the Prospectus, any
documents incorporated by reference, and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act that are deemed to be incorporated
by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object (unless advised in writing by outside counsel
reasonably acceptable to you that the filing of such amendment or
supplement is required by law), and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer (the "PROSPECTUS DELIVERY PERIOD"), any event
shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Shares
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with applicable law.
10
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request, PROVIDED the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process or any
jurisdiction where it is not now so qualified ore required to file such a
consent.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending December 31, 2004 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc. (PROVIDED, HOWEVER, that
the reasonable legal fees and expenses of counsel for the Underwriters that
the Company shall be required to pay for this clause (iv) and the foregoing
clause (iii) shall not exceed $10,000 in the aggregate), (v) all fees and
expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Common Stock and all costs and
expenses incident to listing the Shares on the Nasdaq National Market, (vi)
the cost of printing certificates representing the Shares, (vii) the costs
and charges of any transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of
the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, (ix)
the document production charges and expenses associated with printing this
Agreement and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 7 entitled "Indemnity and Contribution,"
and the last paragraph of Section 9 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
7. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section
11
20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein;
provided, however, that with respect to any preliminary prospectus, the
foregoing indemnity agreement shall not inure to the benefit of any
Underwriter from whom the persons asserting any such losses, claims,
damages or liabilities purchased Shares, to any person controlling such
Underwriter or any affiliate of such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of
the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure to send or give a copy
of the Prospectus is the result of noncompliance by the Company with
Section 6(a), 6(b) or 6(c).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated, in the case of parties indemnified pursuant to Section 7(a),
and by the Company, in the case of parties indemnified pursuant to Section
7(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify
12
the indemnified party from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate Public Offering Price of the Shares. The relative fault of
the Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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. The
remedies provided for in this
13
Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of the Shares.
8. TERMINATION. The Underwriters may terminate this Agreement by notice
given by you to the Company, if, after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading in securities generally
shall have been suspended or materially limited on, or by, as the case may be,
either the New York Stock Exchange or the Nasdaq National Market, (ii) trading
or quotation of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such Option Closing Date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not
14
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. COUNTERPARTS. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
CUBIST PHARMACEUTICALS, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Pacific Growth Equities, LLC
XX Xxxxxxxxx+Co, LLC
Xxxxxx Xxxxxx Xxxxxx, Inc.
Acting severally on behalf of themselves and the
several Underwriters named in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
------------------------------------
Name:
Title:
15
SCHEDULE I
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
------------------------------------------------------------------------------------------- ------------------
Xxxxxx Xxxxxxx & Co. Incorporated.........................................................
Pacific Growth Equities, LLC..............................................................
XX Xxxxxxxxx+Co, LLC......................................................................
Xxxxxx Xxxxxx Xxxxxx, Inc.................................................................
Total...............................................................................
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