IDENIX PHARMACEUTICALS, INC. (a Delaware corporation) 7,248,936 Shares of Common Stock PURCHASE AGREEMENT
Exhibit
99.1
IDENIX
PHARMACEUTICALS, INC.
(a
Delaware corporation)
7,248,936
Shares of Common Stock
Dated: August
5, 2009
IDENIX
PHARMACEUTICALS, INC.
(a
Delaware corporation)
7,248,936
Shares of Common Stock
(Par
Value $0.001 per Share)
August 5,
2009
Leerink
Xxxxx LLC
Xxx
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000
as
Representative of the several Underwriters
Ladies
and Gentlemen:
Idenix
Pharmaceuticals, Inc., a Delaware corporation (the “Company”) confirms its
agreement with Leerink Xxxxx LLC (“Leerink Xxxxx”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters,”
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Leerink Xxxxx is acting as
representative (in such capacity, the “Representative”), with respect
to the issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of shares of Common
Stock, par value $0.001 per share, of the Company (“Common Stock”) set forth in
said Schedule A. The aforesaid 7,248,936 shares of Common Stock to be
purchased by the Underwriters are hereinafter called the
“Securities.” If the only firm named in Schedule A hereto is Leerink
Xxxxx, then the term “Underwriters” shall be deemed to refer solely to Leerink
Xxxxx.
The
Company understands that the Underwriters propose to make a public offering of
the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
The
Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-153471),
including the related preliminary prospectus or prospectuses, covering the
registration of the Securities under the Securities Act of 1933, as amended (the
“1933 Act”). Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of
Rule 430B (“Rule 430B”) of the rules and regulations of the Commission
under the 1933 Act (the “1933 Act Regulations”) and paragraph (b) of
Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The information
included in such prospectus that was omitted from such registration statement at
the time it became effective but that is deemed to be part of and included in
such registration statement pursuant to Rule 430B (or Rule 430A of the 1933
Act Regulations, as applicable) is referred to as “Rule 430B Information.”
Each prospectus used in connection with the offering of the Securities that
omitted the Rule 430B Information is herein called a “preliminary
prospectus.” Such registration statement, at any given time, including all
exhibits, financial schedules and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as amended from time
to time, and the documents otherwise deemed to be a part thereof or included
therein by 1933 Act Regulations, is herein called the “Registration
Statement.” Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the
“Rule 462(b) Registration Statement,” and after such filing, if applicable,
the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called the
“Prospectus.” For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“XXXXX”).
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All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in or
otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “1934 Act”), which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
SECTION
1. Representations and
Warranties.
(a) Representations and Warranties by
the Company. The Company represents and warrants to each Underwriter as
of the date hereof, as of the Applicable Time referred to in
Section 1(a)(i) hereof, and as of the Closing Time referred to in Section
2(b) hereof and agrees with each Underwriter, as follows:
(i) Compliance with Registration
Requirements. At the time of filing it met and for the purposes of this
offering, the Company meets the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement, any Rule 462(b) Registration Statement
and any post-effective amendment thereto has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration Statement,
any Rule 462(b) Registration Statement or any post-effective amendment thereto
has been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective, the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and, as amended, as applicable, will
comply in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and did not and, as amended, as applicable, will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued and at
the Closing Time, included or, as amended or supplemented, as applicable, will
include an untrue statement of a material fact or omitted or, as amended or
supplemented, as applicable, will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
As of the
Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time, the Statutory Prospectus (as defined below) and the information included
on Schedule B hereto (collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included any untrue
statement of a material fact or omitted 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.
As used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 8:30 a.m. (Eastern time) on August 5, 2009 or such other time as
agreed upon in writing by the Company and Leerink Xxxxx.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show for an offering that is a written
communication” within the meaning of Rule 433(d)(8)(i) whether or not
required to be filed with the Commission or (iii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms, in each
case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form required to be retained in the Company’s
records pursuant to Rule 433(g).
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“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a
Bona Fide Electronic Road Show (as defined in Rule 433), as evidenced by its
being specified in Schedule D hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any preliminary or
other prospectus deemed to be a part thereof.
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until
any earlier date that the issuer notified or notifies Leerink Xxxxx as described
in Section 3(e), did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in
the Registration Statement or the Prospectus, including any document
incorporated by reference therein, and any preliminary or other prospectus
deemed to be a part thereof that has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus, or any amendment or supplement to the foregoing, made
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Leerink Xxxxx expressly for use
therein.
Each
preliminary prospectus (including the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto)
complied when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
At the
time of filing the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto and at the date hereof, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405
of the 1933 Act Regulations.
(ii) Incorporated
Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respect with the requirements of the
1934 Act, and the rules and regulations of the Commission under the 1934 Act
(the “1934 Regulations”).
(iii) Independent
Accountants. The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements.
The financial statements included in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company at the dates
indicated and the statement of operations, stockholders’ equity and cash flows
of the Company for the periods specified; said financial statements, together
with the related schedules and notes, have been prepared in conformity with
generally accepted accounting principles (“GAAP”) applied on a consistent basis
throughout the periods involved, except as stated therein. The supporting
schedules to such financial statements included or incorporated by reference in
the Registration Statement, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data included
in the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement.
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(v) No Material Adverse Change
in Business. Since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business (a “Material
Adverse Effect”), (B) there have been no transactions entered into by the
Company or its subsidiaries other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries, taken as a
whole, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the
Company. Each of the Company and its significant subsidiaries (as defined
in Rule 1-02 of Regulation S-X) has been duly organized and is validly existing
as a corporation or other valid legal entity in good standing under the laws of
the jurisdiction in which it is chartered and organized and has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company and each of its significant
subsidiaries is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not reasonably be expected to result in a Material Adverse
Effect.
(vii) Subsidiaries. The
subsidiaries set forth in Exhibit 21.1 of the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2009, as filed with the Commission on July
31, 2009 (the “10-Q”), which is incorporated by reference in the Prospectus, are
the only subsidiaries of the Company, and all of the issued shares of capital
stock of such subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable and (except for directors’ qualifying shares) are
owned by the Company, either directly or indirectly, free and clear of any
liens, encumbrances, equities or claims.
(viii) Capitalization. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Prospectus, except for subsequent issuances, if any, pursuant to this
Agreement, the Amended and Restated Stockholders' Agreement, dated as of July
23, 2004, with Novartis Pharma AG (“Novartis”), except to the extent Novartis
has waived its rights to such issuances, including pursuant to the S-3 Financing
Waiver and Consent between the Company and Novartis, dated as of May 19, 2009
and the waiver and consent between the Company and Novartis dated January 28,
2009 (a “Novartis Issuance”), or the employee, director and/or consultant
compensation, benefit or stock plans described in the Prospectus or pursuant to
the exercise, conversion or exchange of convertible or exchangeable securities
or options or rights referred to in the Prospectus. All of the shares
of issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(ix) Domestication. The
Company has filed all notices, reports, documents or other information required
to be filed by it pursuant to, and has obtained any and all authorizations,
approvals, orders, consents, licenses, certificates, permits; registrations or
qualifications required to be obtained under, and has otherwise complied with
all requirements of, all applicable laws of the Cayman Islands and the State of
Delaware in connection with the consummation of the de-registration of the
Company in the Cayman Islands (the “Cayman Deregistration”), the replacement of
the Company’s Cayman Islands’ Memorandum and Articles of Association with a
Delaware certificate of incorporation and by-laws and the domestication of the
Company in the State of Delaware pursuant to Section 388 of the Delaware General
Corporation Law (the “Delaware Domestication”) and the Cayman Deregistration and
the Delaware Domestication (together, the “Domestication”) are legal, effective
and valid and in accordance with the laws of the Cayman Islands and the State of
Delaware. To the Company’s and its subsidiaries’ knowledge, the consummation of
the Domestication has not conflicted with or resulted in a breach or violation
of any of the terms or provisions of, or constituted a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, and
which will not affect the validity of the Domestication or the transactions
contemplated by this Agreement. The Domestication did not result in any
violation of the provisions of the Memorandum and Articles of Association of the
Company, as in effect at such time, or the provisions of any certificate of
incorporation, by-laws, memorandum, articles of association or other governing
documents (as applicable) of any of the Company’s subsidiaries, as in effect at
such time, or any statute, rule or regulation, or, to the Company’s and its
subsidiaries’ knowledge, any order or decree of any court or regulatory
authority or other governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties.
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(x) Authorization of
Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) Authorization and
Description of Securities. The Securities to be purchased by the
Underwriters from the Company have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-assessable; the
Common Stock conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability by reason of being such a
holder; and the issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company that have not been
validly waived.
(xii) Absence of Defaults and
Conflicts. Neither the Company nor any of its significant
subsidiaries is (i) in violation of its charter or by-laws or (ii) in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it may be
bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, “Agreements and Instruments”), except for
such defaults that would not reasonably be expected to result in a Material
Adverse Effect; and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein (including the
issuance and sale of the Securities) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action of the Company and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or, except as would not reasonably be
expected to result in a Material Adverse Effect, any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its assets, properties or operations. As used herein, a
“Repayment Event” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company.
(xiii) Fair
Summaries. The statements set forth (i) in the Prospectus
under the captions “Description of Common Stock” and “Underwriting,” (ii) in the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2008, as filed with the Commission on March 4, 2009, which is incorporated by
reference in the Prospectus, under the captions “Business – Collaboration and
License Agreements” through and including “Business – University of
Cagliari,” and “Business – Patents and
Licenses,” (iii) in the Company’s proxy statement, as filed with the
Commission on April 28, 2009, portions of which are incorporated by reference in
the Prospectus, under the captions “Compensation Discussion and Analysis” and
“Certain Relationships, Related Transactions and Director Independence,” and
(iv) in the 10-Q under the captions “Risk Factors – Factors Related to Our
Relationship with Novartis,” “Risk Factors – Factors Related to Patents and
Licenses” and “Risk Factors – Factors Related to Our Dependence on Third Parties
– Our license agreement with GSK is important to our business. The royalties and
other payments we receive under our licensing arrangement with GSK could be
delayed, reduced or terminated if GSK terminates or fails to perform its
obligations under its agreement with us or if GSK is unsuccessful in its sales
efforts,” insofar as they purport to describe the documents referred to therein,
are accurate, complete and fair in all material respects.
(xiv) Absence of Labor
Dispute. No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries’ principal suppliers, manufacturers,
customers or contractors, which, in either case, would reasonably be expected to
result in a Material Adverse Effect.
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(xv) Absence of
Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries, which
is required to be disclosed in the Registration Statement and is not disclosed
therein, or, other than as disclosed therein, which would reasonably be expected
to result in a Material Adverse Effect, or which would materially and adversely
affect the properties or assets of the Company and its subsidiaries, taken as a
whole, or the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company and its
subsidiaries is a party or of which any of its property or assets is the subject
which are not described in the Registration Statement, the General Disclosure
Package or the Prospectus, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material Adverse
Effect.
(xvi) Accuracy of Exhibits.
There are no contracts or documents which are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits thereto
which have not been so described and filed as required.
(xvii) Intellectual
Property.
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(A)
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The
Company and its subsidiaries own, possess, license or have other rights
under the patents and patent applications, copyrights, trademarks, service
marks, trade names, technology and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary rights) necessary, or
used, in any material respect, for the conduct of their business in the
manner in which it is being conducted and in the manner in which it is
intended to be conducted as set forth in the Prospectus and reasonably
necessary in connection with the commercialization of product candidates
(the “Product Candidates”) described in the Prospectus as being under
development (collectively, the “Company Intellectual
Property”).
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(B)
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To
the Company’s and its subsidiaries’ knowledge, (I) none of the claims of
patents owned or licensed by the Company or any of its subsidiaries and
constituting Company Intellectual Property are unenforceable or invalid,
and (II) none of the claims of patent applications owned or licensed by
Company or any of its subsidiaries and constituting Company Intellectual
Property specifically covering Product Candidates or their use would be
unenforceable or invalid if issued as patents, in each case except as
enforceability may be limited by bankruptcy and other similar laws
affecting the rights of creditors generally and general principles of
equity.
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(C)
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The
Company and its subsidiaries own or possess valid licenses or other rights
under the patents and patent applications set forth in the patent schedule
provided by the Company to you on the date hereof (the “Patent Schedule”),
which Patent Schedule lists all such patents and patent applications
necessary for, or used in, any material respect to conduct the business of
the Company and its subsidiaries in the manner in which it is being
conducted and in the manner intended to be conducted as described in the
Prospectus and necessary in connection with the development and
commercialization of Product Candidates described in the Prospectus as
being under development by the
Company.
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(D)
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Neither
the Company nor any of its subsidiaries is obligated to pay a material
royalty, grant a license, or provide other material consideration to any
third party in connection with the Company Intellectual Property other
than as disclosed in the
Prospectus.
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(E)
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Neither
the Company nor any of its subsidiaries has received any written notice of
infringement with respect to the Company Intellectual Property other than
as disclosed in the Prospectus or as would not reasonably be expected to
have a Material Adverse Effect; except as disclosed in the Prospectus,
there are no pending or, to the knowledge of the Company, threatened
actions, suits, proceedings or claims by others against the Company or any
of its subsidiaries claiming that the Company or any of its subsidiaries
is infringing any patent, trade secret, trade xxxx, service xxxx,
copyright or other proprietary right, information or
materials.
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(F)
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The
discoveries, inventions, products or processes of the Company and its
subsidiaries referred to in the Prospectus do not, to the knowledge of the
Company and any of its subsidiaries, infringe or interfere with any right
or patent of any third party, or any discovery, invention, product or
process that is the subject of a patent application filed by any third
party, which could reasonably be expected to have a Material Adverse
Effect.
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(G)
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Except
as described in the Prospectus, neither the Company nor any of its
subsidiaries has received any notice of any inventorship challenges with
respect to the patents and patent applications within Company Intellectual
Property nor has any interference, conflict, opposition, declaratory
action or nullity proceeding been declared or provoked with respect to
such patents and patent
applications.
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(H)
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Except
as disclosed in the Prospectus with respect to Novartis and GSK with
respect to the IDX899 Product Candidate, no third party, including any
academic or governmental organization, possesses rights to the Company
Intellectual Property which, if exercised, could enable such party to
develop products competitive to the Product Candidates or could reasonably
be expected to have a Material Adverse
Effect.
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(I)
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The
Company and its subsidiaries and, to the Company’s and its subsidiaries’
knowledge, their respective licensors are not in breach of, and have
complied with all terms of, any license or other agreement relating to
Company Intellectual Property, except for such breaches or non-compliance
that could not reasonably be expected to have a Material Adverse
Effect.
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(J)
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There
are no contracts or other documents material to the Company Intellectual
Property other than those described in the Prospectus. Neither the Company
nor any of its subsidiaries is aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments
of any nature) or other agreement, or subject to any judgment, decree or
order of any court or administrative agency, that would conflict with the
Company’s or its subsidiaries’
business.
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(K)
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None
of the execution or delivery of this Agreement, or the carrying on of the
Company’s and its subsidiaries’ business by the employees of the Company
and its subsidiaries, will, to the Company’s and its subsidiaries’
knowledge, conflict with or result in a breach of terms, conditions, or
provisions of, or constitute a default under, any contract, covenant or
instrument under which any such employee is now
obligated.
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(L)
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To
the Company’s and its subsidiaries’ knowledge, the U.S. government does
not have any right in any Company Intellectual
Property.
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(M)
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To
the Company’s and its subsidiaries’ knowledge, it is not and will not be
necessary to use any inventions, trade secrets or proprietary information
or materials of any of its consultants, or its employees (or persons it
currently intends to hire) made prior to their employment or engagement by
the Company or its subsidiaries except for those inventions and
proprietary information licensed to the Company or its
subsidiaries.
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(N)
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The
Company and its subsidiaries have complied with the required duty of
candor and good faith in dealing with the United States Patent and
Trademark Office (the “PTO”), including the duty to disclose to the PTO
all information believed to be material to the patentability of the
Company's patents and pending U.S. patent applications within the Company
Intellectual Property.
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(O)
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The
Company, CNRS, L’Universite Montpellier II (“UMII”) and Universita Degli
Studi di Cagliari (“UDSC”) are identified or will be identified, as
applicable, in the records of the PTO as the holders of record to the U.S.
patents and patent applications as set forth in the Patent
Schedule.
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(P)
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To
the knowledge of the Company, except as described in the Prospectus, no
other entity or individual (i.e., other than the
Company, CNRS, UMII and UDSC) has any rights, title or interest in the
patents or patent applications set forth in the Patent Schedule or any
trademarks, copyrights or other intellectual property rights of the
Company.
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(Q)
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The
Company, CNRS, UMII and UDSC are similarly listed or will be listed in the
records of corresponding foreign agencies with respect to the foreign
counterparts of the foregoing set forth in the Patent
Schedule.
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(R)
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There
are no legal or governmental proceedings pending relating to patents,
trade secrets, trade marks, service marks, copyrights or other proprietary
information or materials constituting Company Intellectual Property, other
than PTO or foreign patent office review of pending applications for
patents and trademarks, and no such proceedings are contemplated or, to
the knowledge of the Company, threatened by governmental authorities or
others.
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(S)
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The
Company and its subsidiaries have diligently prosecuted, and are
diligently prosecuting, claims in the patent applications within the
Company Intellectual Property, which contain claims covering products of
the Company and Product Candidates or their method of
use.
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(xviii) Contracts. Each
of (i) the Cooperative Antiviral Research Activity Agreement, dated January 4,
1999, between Idenix France and UDSC, as amended by the Letter Agreement, dated
April 14, 2002, by and between Idenix France and UDSC, and by the Letter
Agreement, dated May 8, 2003, by and among the Company, Idenix France, Novartis
and UDSC, and by the Agreement, dated June 30, 2004, by and between the Company
and UDSC (the “UDSC Cooperative Agreement”), (ii) the License Agreement, dated
December 14, 2000, between the Company and UDSC, as amended by the Letter
Agreement, dated April 14, 2002, by and between Idenix France and UDSC, by the
Letter Agreement, dated May 8, 2003, by and among the Company, Idenix France,
Novartis and UDSC, and by the Agreement, dated June 30, 2004, by and between the
Company and UDSC (the “UDSC License Agreement”), (iii) the Development, License
and Commercialization Agreement, dated as of May 8, 2003, by and among the
Company, Idenix Cayman and Novartis as amended on April 30, 2004, December 21,
2004, February 27, 2006, September 28, 2007 and January 28, 2009
and (iv) the License Agreement, dated as of February 4, 2009, by and among the
Company and SmithKline Xxxxxxx Corporation, doing business as GlaxoSmithKline
(“GSK”), whereby the Company granted GSK an exclusive license to develop,
manufacture and commercialize certain non-nucleoside reverse transcriptase
inhibitor compounds claimed in certain patents and patent applications owned or
controlled by the Company, including the compound developed by the Company known
as IDX899, for the treatment and prophylaxis of human diseases and conditions on
a worldwide basis, is a valid and binding obligation of the parties thereto and
enforceable against such parties in accordance with its terms, except as
enforceability may be limited by bankruptcy and other similar laws affecting the
rights of creditors generally and general principles of equity.
(xix) University of
Cagliari. Under the Research Agreement and License Agreement
with the University of Cagliari, as amended in 2002, 2003, 2004, 2005 and 2006,
the Company has the right to take any and all actions which are necessary to
enforce or defend Company Intellectual Property rights that are co-owned with
and/or licensed from the University of Cagliari under such agreements, and the
Company has the right to join the University of Cagliari as a party plaintiff in
any such action. The University of Cagliari has agreed to cooperate, assist and
participate, including without limitation as a party plaintiff, in enforcing or
defending the Company Intellectual Property rights that are co-owned with and/or
licensed from the University of Cagliari under such agreements.
(xx)
Absence of Further
Requirements. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act, the 1933 Act Regulations,
state securities laws or the rules and regulations of the Financial Industry
Regulatory Authority (“FINRA”) or The Nasdaq Stock Market.
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(xxi) Absence of
Manipulation. Neither the Company nor, to the knowledge of the Company,
any affiliate of the Company has taken, nor will the Company or any affiliate
take, directly or indirectly, any action which is designed to or which has
constituted or which would be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(xxii) Possession of Licenses and
Permits. The Company and its subsidiaries possesses such permits,
licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business of the
Company and its subsidiaries as described in the Prospectus, including without
limitation, all such registrations, approvals, certificates, authorizations and
permits required by the United States Food and Drug Administration (the “FDA”),
the United States Drug Enforcement Administration, and/or other federal, state,
local or foreign agencies or bodies engaged in the regulation of clinical
trials, pharmaceuticals, biologics or biohazardous substances or materials,
except where the failure so to possess would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings (nor, to the Company’s and its subsidiaries’ knowledge, are any
proceedings threatened against the Company or any of its subsidiaries) relating
to the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material Adverse Effect.
Where required by applicable laws and regulations of the FDA, the Company and
its subsidiaries have submitted to the FDA an Investigational New Drug
Application or amendment or supplement thereto for each clinical trial it has
conducted or sponsored or is conducting or sponsoring, except where such failure
would not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; all such submissions were in material compliance with applicable
laws and rules and regulations when submitted and no material deficiencies have
been asserted by the FDA with respect to any such submissions, except any
deficiencies which could not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(xxiii) Tests and Preclinical and
Clinical Studies. The Company and its subsidiaries have operated and
currently are in compliance with the United States Federal Food, Drug, and
Cosmetic Act, all applicable rules and regulations of the FDA and other federal,
state, local and foreign governmental bodies exercising comparable authority,
except where the failure to so operate or be in compliance would not reasonably
be expected to have a Material Adverse Effect. The clinical studies conducted by
or, to the Company’s knowledge, on behalf of the Company or its subsidiaries
that are described in the Registration Statement and the Prospectus were, and,
if still pending, are being, conducted in all material respects in accordance
with the protocols submitted to the FDA and all applicable laws and regulations;
the preclinical studies conducted by or, to the Company’s knowledge, on behalf
of the Company or its subsidiaries that are described in the Registration
Statement and 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 and scientific
standards for products or product candidates comparable to those being developed
by the Company and its subsidiaries; the descriptions of the tests and
preclinical and clinical studies, and results thereof, conducted by or, to the
Company’s knowledge, on behalf of the Company or its subsidiaries contained in
the Registration Statement and the Prospectus are accurate and complete in all
material respects; the Company is not aware of any other trials or studies, the
results of which reasonably call into question the results described or referred
to in the Registration Statement and the Prospectus; neither the Company nor any
of its subsidiaries are in receipt of any notices or correspondence from the FDA
or any foreign, state or local governmental body exercising comparable authority
that reasonably call into question the results of the trials or studies
described or referred to in the Registration Statement and the Prospectus; and
neither the Company nor any of its subsidiaries have received any notice or
correspondence from the FDA or any foreign, state or local governmental body
exercising comparable authority requiring the termination, suspension, or
clinical hold of any tests or preclinical or clinical studies with respect to
product candidates currently under development, or such notice or correspondence
from any Institutional Review Board or comparable authority requiring the
termination or suspension of a clinical study, conducted by or on behalf of the
Company, which termination, suspension, or clinical hold would reasonably be
expected to have a Material Adverse Effect.
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(xxiv)
Title to
Property. Each of the Company and its subsidiaries has good and
marketable title to all real property owned by it and good title to all other
properties owned by it that are material to the Company and its subsidiaries,
taken as a whole, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, 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 or its subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, taken as a whole, and under which
the Company or its subsidiaries holds properties described in the Prospectus,
are in full force and effect, and, except as described in the Prospectus or as
would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, neither the Company nor its subsidiaries has notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or its
subsidiaries to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xxv)
Investment Company
Act. The Company is not required, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended (the
“1940 Act”).
(xxvi) Environmental Laws.
Except as described in the Prospectus and except as would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect,
(A) neither the Company not its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface-strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos containing materials or
mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (B) the Company
and its subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws to conduct their business as described
in the Prospectus and are in compliance with their requirements, (C) there
are no pending or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and
(D) to the knowledge of the Company, there are no events or circumstances
that would reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxvii) Registration Rights.
There are no persons with rights to have any securities registered pursuant to
the Registration Statement, which rights have not been waived or complied with,
nor, except as specifically set forth in the Prospectus, are there any persons
with rights to have any securities otherwise registered by the Company under the
1933 Act.
(xxviii) Accounting Controls and
Disclosure Controls.
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(A)
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The
Company maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Except as described in the Prospectus,
since the end of the Company’s most recent audited fiscal year, there has
been (1) no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (2) no change in
the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting.
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(B)
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The
Company employs disclosure controls and procedures that are designed to
ensure that information required to be disclosed by the Company in the
reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in
the Commission’s rules and forms, and is accumulated and communicated to
the Company’s management, including its principal executive officer or
officers and the principal financial officer or officers, as appropriate,
to allow timely decisions regarding
disclosure.
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(xxix) Compliance with the
Xxxxxxxx-Xxxxx Act. The Company is in compliance in all material respects
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”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(xxx) FINRA Matters.
Neither the Company nor, to the Company’s knowledge, the Company’s officers,
directors or any of its affiliates (within the meaning of FINRA Conduct Rule
2720(b)(1)(a)), directly or indirectly controls, is controlled by, or is under
common control with, or is an associated person (within the meaning of
Article I, Section 1(dd) of the By-laws of FINRA) of, any member firm
of FINRA.
(xxxi) Payment of Taxes. All
United States federal income tax returns of the Company and its subsidiaries
required by law to be filed have been filed and all taxes shown by such returns
or otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to
which adequate reserves have been provided. The United States federal income tax
returns of the Company through the fiscal year ended December 31, 2005 have been
settled and no assessment in connection therewith has been made against the
Company. The Company has filed all other tax returns that are required to have
been filed by it pursuant to applicable foreign, state, local or other law
except insofar as the failure to file such returns would not reasonably be
expected to result in a Material Adverse Effect, and has paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company,
except for such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and reserves
on the books of the Company in respect of any income and corporation tax
liability for any years not finally determined are adequate to meet any
assessments or re-assessments for additional income tax for any years not
finally determined, except to the extent of any inadequacy that would not
reasonably be expected to result in a Material Adverse Effect.
(xxxii) Insurance. The
Company and each of its significant subsidiaries carries or is entitled to the
benefits of insurance, with financially sound and reputable insurers, in such
amounts and covering such risks as is generally maintained by companies of
established repute engaged in the same or similar business and at the same or a
similar stage of development, and all such insurance is in full force and
effect. The Company has no reason to believe that it and its significant
subsidiaries will not be able (A) to renew its existing insurance coverage
as and when such policies expire or (B) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not result in a Material Adverse
Effect. Neither the Company nor any of its significant subsidiaries has been
denied any insurance coverage which it has sought or for which it has
applied.
(xxxiii) Statistical and
Market-Related Data. Any statistical and market-related data included in
the Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and, to the
extent required by such sources, the Company has obtained the written consent to
the use of such data from such sources.
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(xxxiv) Foreign Corrupt Practices
Act. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or other person acting on behalf
of the Company 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”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, except in each
case as would not, singly or in the aggregate, reasonably be expected to result
in a Material Adverse Effect, and, to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the FCPA, except
as would not reasonably be expected to have a Material Adverse Effect, and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
(xxxv) Money Laundering
Laws. The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”),
except in each case as would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company or its subsidiaries with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.
(xxxvi) OFAC. Neither the
Company nor, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or person acting on behalf of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(b) Officer’s Certificates. Any
certificate signed by any officer of the Company delivered to the Representative
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered
thereby.
SECTION
2. Sale and Delivery to
Underwriters; Closing.
(a) Securities. On the basis of
the representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the price per share set forth in
Schedule B, the number of Securities set forth in Schedule A opposite
the name of such Underwriter, plus any additional number of Securities which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the
purchase price for, and delivery of certificates for, the Securities shall be
made at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP at 00 Xxxxx
Xxxxxx, Xxxxxx, XX 00000, or at such other place as shall be agreed upon by the
Representative and the Company, at 9:00 A.M. (Eastern time) on the fourth
(third, if the pricing occurs before 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the
Company (such time and date of payment and delivery being herein called “Closing
Time”).
Payment
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company against delivery to the Representative
for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities that it has
agreed to purchase. Subject to Section 10, Leerink Xxxxx, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
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(c) Denominations; Registration.
Certificates for the Securities shall be in such denominations and registered in
such names as the Representative may request in writing at least one full
business day before the Closing Time. The certificates for the Securities will
be made available for examination and packaging by the Representative in The
City of Boston not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION
3. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities
Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B, and will
notify the Representative immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or any
document incorporated by reference therein or otherwise deemed to be a part
thereof or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to Section
8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities. The Company will effect
the filings required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments and Exchange
Act Documents. The Company will give the Representative notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either any preliminary prospectus (including any prospectus included
in the Registration Statement at the time it became effective) or to the
Prospectus, and will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object. The Company has
given the Representative notice of any filings made pursuant to the 1934 Act or
the 1934 Act Regulations within 48 hours prior to the Applicable Time; the
Company will give the Representative notice of its intention to make any such
filing from the Applicable Time to the Closing Time and will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing, as the case may be, and will not file or use any
such document to which the Representative or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration
Statements. The Company has furnished or will deliver to the
Representative and counsel for the Underwriters, without charge, signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith ) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The
Company has delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
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(e) Continued Compliance with Securities
Laws. The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration
Statement relating to the Securities or included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances, prevailing at that subsequent time, not misleading, the Company
will promptly notify Leerink Xxxxx and will promptly amend or supplement, at its
own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(f) Blue Sky Qualifications. The
Company will use its best efforts, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Representative may designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(g) Rule 158. The Company
will timely file such reports pursuant to the 1934 Act as are necessary in order
to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) Use of Proceeds. The Company
will use the net proceeds received by it from the sale of the Securities in the
manner specified in the Prospectus under “Use of Proceeds.”
(i) Listing. The Company will use
its reasonable best efforts to effect and maintain the quotation of the
Securities on the Nasdaq Global Market.
(j) Restriction on Sale of
Securities. During a period of 60 days from the date of the
Prospectus, the Company will not, without the prior written consent of Leerink
Xxxxx, (i) directly or indirectly, 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 or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or 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 Securities to be sold hereunder, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectus; (C) any shares of Common Stock issued or options to purchase
Common Stock granted to employees, directors and/or consultants of the Company
pursuant to the employee benefit and stock plans described in the Prospectus,
(D) a Novartis Issuance; or (E) the issuance of up to an
aggregate of 3,000,000 shares of Common Stock in connection with any strategic
transaction that includes a commercial relationship (including joint ventures,
marketing or distribution arrangements, collaboration agreements or intellectual
property license agreements) or any acquisition of assets or not less than a
majority or controlling portion of the equity of another entity, provided that
any such shares of Common Stock and securities issued pursuant to this clause
(E) during the 60-day restricted period described above shall be subject to the
restrictions described above for the remained of such restricted
period.
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(k) Reporting Requirements. The
Company, during the period when the Prospectus is required to be delivered under
the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the rules and regulations of the Commission thereunder.
(l) Issuer Free Writing
Prospectuses. The Company represents and agrees that, unless it obtains
the prior consent of the Representative, and each Underwriter represents and
agrees that, unless it obtains the prior consent of the Company and the
Representative, it has not made and will not make any offer relating to the
Securities that would constitute an “issuer free writing prospectus,” as defined
in Rule 433, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Representative
or by the Company and the Representative, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents
that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record keeping.
SECTION
4. Payment of
Expenses.
(a) Expenses. The Company will
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company’s counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of a Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Permitted Free Writing Prospectus and
of the Prospectus and any amendments or supplements thereto and any costs
associated with electronic delivery of any of the foregoing by the Underwriters
to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of
the Securities, 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, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by FINRA of the terms of the sale of the Securities,
(xi) the fees and expenses incurred in connection with the listing of the
Securities in the Nasdaq Global Market, and (xii) the costs and expenses
(including without limitation any damages or other amounts payable in connection
with legal or contractual liability) associated with the reforming of any
contracts for sale of the Securities made by the Underwriter caused by a breach
of the representation contained in the third paragraph of Section 1(a)(i).
It is understood that, subject to this section and Section 4(b) hereof, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel.
(b) Termination of Agreement. If
this Agreement is terminated by the Representative in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their accountable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
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SECTION
5. Conditions of Underwriters’
Obligations. The obligations of the several Underwriters hereunder are
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder that are required to be
performed or satisfied by it at or prior to the Closing Time, and to the
following further conditions:
(a) Effectiveness of Registration
Statement. The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430B
Information shall have been filed with the Commission in the manner and within
the time frame required by Rule 424(b) without reliance on Rule 424(b)(8)
or a post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of
Rule 430B.
(b) Opinion of Counsel for the
Company. At Closing Time, the Representative shall have received the
favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and
Xxxx LLP, counsel for the Company, in form and substance reasonably satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, to the effect set forth in
Exhibit A hereto.
(c) Opinion of in-house
Counsel. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Xxxx Xxxxxxxxxxx,
Executive Vice President, General Counsel and Secretary of the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A1 hereto.
(d) Opinion of Intellectual Property
Counsel. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Xxxxx Day,
intellectual property counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in Exhibit A2 hereto.
(e) Opinion of Counsel for
Underwriters. At Closing Time, the Representative shall have received the
favorable opinion, dated as of Closing Time, of Ropes & Xxxx LLP, counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, with respect to such matters as the
Representative may reasonably request.
(f) Officers’ Certificate. At
Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any Material Adverse Effect, and the Representative
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such
Material Adverse Effect, (ii) the representations and warranties in Section
1(a) hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or, to their
knowledge, contemplated by the Commission.
(g) Accountant’s Comfort Letter.
At the time of the execution of this Agreement, the Representative shall have
received from PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to the Representative and PricewaterhouseCoopers LLP,
together with signed or reproduced copies of such letter for each of the other
Underwriters 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 the
Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At
Closing Time, the Representative shall have received from PricewaterhouseCoopers
LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
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(i) Approval of Listing. At
Closing Time, the Securities shall have been approved for inclusion in the
Nasdaq Global Market, subject only to official notice of issuance.
(j) Lock-up Agreements. At the
date of this Agreement, the Representative shall have received a lock-up
agreement substantially in the form of Exhibit B hereto signed by the
persons listed on Schedule C hereto.
(k) No Objection. FINRA shall not
have raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(l) Additional Documents. At
Closing Time counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(m) Termination of Agreement. If
any condition specified in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Company at any time at or prior to Closing Time
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and
effect.
SECTION
6. Indemnification.
(a) Indemnification of
Underwriters. The Company agrees to indemnify and hold harmless each
Underwriter, its affiliates, as such term is defined in Rule 501(b) under the
1933 Act (each, an “Affiliate”), its selling agents and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any
and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Leerink Xxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
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provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Leerink
Xxxxx expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430B Information, or any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company,
Directors and Officers. Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a) above, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430B Information, or any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Leerink Xxxxx
expressly for use therein.
(c) Actions against Parties;
Notification. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Leerink Xxxxx and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action and, to the extent it shall
elect, jointly with any other indemnifying party, assume the defense thereof,
with counsel reasonably satisfactory to such indemnified parties; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances; provided, however, that after
notice from the indemnifying party to an indemnified party that the indemnifying
party has elected to assume the defense of any action, the indemnifying party
shall not be liable to such indemnified party for any legal fees or expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if
Failure to Reimburse. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION
7. Contribution. If the
indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (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 Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (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 which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
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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 Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on the cover of the Prospectus.
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 any such
untrue or alleged untrue statement of a material fact or 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
Company and the Underwriters agree that it would not be just and 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 which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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 Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling
agents shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters’ respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION
8. Representations, Warranties
and Agreements to Survive. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter
or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors, or any person controlling the Company and
(ii) delivery of and payment for the Securities.
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SECTION
9. Termination of
Agreement.
(a) Termination; General. The
Representative may terminate this Agreement, by notice to the Company, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or General Disclosure Package, any
Material Adverse Effect, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq Global Market, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, FINRA or any other
governmental authority, or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (v) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this
Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
(c) Termination of Lock-Up Agreements
and Non-distribution Agreements. In the event this Agreement is
terminated for any reason, the Representative shall contemporaneously terminate
or waive in their entirety the agreements referred to in
Section 5(j).
SECTION
10. Default by One or More of
the Underwriters. If one or more of the Underwriters shall fail at
Closing Time to purchase the Securities which it or they are obligated to
purchase under this Agreement (the “Defaulted Securities”), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(i) if the
number of Defaulted Securities does not exceed 10% of the number of Securities
to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the
number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of this
Agreement either the (i) Representative or (ii) the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION
11. Tax Disclosure.
Notwithstanding any other provision of this Agreement, immediately upon
commencement of discussions with respect to the transactions contemplated
hereby, the Company (and each employee, representative or other agent of the
Company) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Company relating to such tax treatment and
tax structure. For purposes of the foregoing, the term “tax treatment” is the
purported or claimed federal income tax treatment of the transactions
contemplated hereby, and the term “tax structure” includes any fact that may be
relevant to understanding the purported or claimed federal income tax treatment
of the transactions contemplated hereby.
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SECTION
12. Notices. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representative at Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000, with a copy
to (i) Xxxxxxx X.X. Xxxxxxx, Leerink Xxxxx LLC, Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, XX 00000 and (ii) Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, XX 00000, attention of Xxxxxxx X’Xxxxx, Esq.; notices to the Company
shall be directed to it at Idenix Pharmaceuticals, Inc., 00 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, attention of President and Chief Executive Officer, with a
copy to Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP at 00 Xxxxx Xxxxxx, Xxxxxx, XX
00000, attention of Xxxxx Xxxxxx, Esq.
SECTION
13. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other hand,
(b) in connection with the offering contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely as a
principal and is not the agent or fiduciary of the Company or its respective
stockholders, creditors, employees or any other party, (c) no Underwriter
has assumed or will assume an advisory or fiduciary responsibility in favor of
the Company with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, and
(e) the Underwriters have not provided any legal, accounting, regulatory or
tax advice with respect to the offering contemplated hereby and the Company has
consulted its own respective legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
SECTION
14. Parties. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION
15. GOVERNING LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION
16. TIME. TIME SHALL BE
OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
17. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION
18. Effect of Headings.
The Section headings herein are for convenience only and shall not affect the
construction hereof.
- 21
-
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters
and the Company in accordance with its terms.
|
Very
truly yours,
IDENIX
PHARMACEUTICALS, INC.
|
||
|
By
|
/s/ Xxxx-Xxxxxx
Sommadossi
|
|
| Name: Xxxx-Xxxxxx Sommadossi | ||
|
Title:
Chief Executive Officer and
Chairman
|
||
CONFIRMED
AND ACCEPTED,
as of the
date first above written:
|
LEERINK
XXXXX LLC
|
||
|
By
|
/s/ Xxxxxx Xxxxx | |
|
Authorized
Signatory
|
||
For
itself and as Representative of the other Underwriters named in Schedule A
hereto.
SCHEDULE
A
|
Name
of Underwriter
|
Number of Securities
|
|||
|
Leerink
Xxxxx LLC.
|
7,248,936 | |||
|
Total.
|
7,248,936 | |||
SCHEDULE
B
IDENIX
PHARMACEUTICALS, INC.
7,248,936 Shares
of Common Stock
(Par
Value $0.001 Per Share)
1. The
number of Securities offered to the public shall be 7,248,936 and the offering
price per share to the public for the Securities shall be $3.14.
2. The
purchase price per share for the Securities to be paid by the several
Underwriters shall be $2.952, being an amount equal to the public offering price
set forth above less $0.188 per share.
SCHEDULE
C
LIST OF
PERSONS SUBJECT TO LOCK-UP
Xxxxxxx
Xxxxx
Xxxxx
Xxxxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxxx-Xxxxxx
Xxxxx
Xxxxxx
Xxxxxxx
Xxxxxxxxx
Xxxxxx
Xxxxxx-Xxxxxx
Xxxx-Xxxxxx
Xxxxxxxxxx
Xxxxxx X.
Xxxxxx, Xx.
Xxxx X.
Xxxxxxx
Xxxxxxx
Xxxxxx
Xxxxx X.
Xxxxxxxxxx
Xxxx
Xxxxxxxxxxx
SCHEDULE
D
None
