Exhibit A LOCK-UP LETTER AGREEMENT
Exhibit A
Barclays Capital Inc.
Xxxxxxxxx & Company, Inc.
As Representatives of the several
Underwriters named in Schedule I
of the Underwriting Agreement,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxx & Company, Inc.
As Representatives of the several
Underwriters named in Schedule I
of the Underwriting Agreement,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the “Underwriters”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by
the Underwriters of shares (the “Stock”) of Common Stock, par value $0.001 per share (the “Common
Stock”), of Pacira Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and that the
Underwriters propose to reoffer the Stock to the public (the “Offering”).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the
prior written consent of Barclays Capital Inc. and Xxxxxxxxx & Company, Inc. (the
“Representatives”), on behalf of the Underwriters, the undersigned will not, directly or
indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to, result in the disposition by
any person at any time in the future of) any shares of Common Stock (including, without limitation,
shares of Common Stock that may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock
that may be issued upon exercise of any options or warrants) or securities convertible into or
exercisable or exchangeable for Common Stock, (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3)
make any demand for or exercise any right or cause to be filed a registration statement, including
any amendments thereto, with respect to the registration of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock or any other securities
of the Company, or (4) publicly disclose the intention to do any of the foregoing for a period
commencing on the date hereof and ending on the 90th day after the date of the final
prospectus used to sell the Stock (such 90-day period, the “Lock-Up Period”) pursuant to the
Underwriting Agreement.
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs, or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event, unless the
Representatives waive such extension in writing. The undersigned hereby acknowledges that the
Company has agreed in the Underwriting Agreement to provide written notice of any event that would
result in an extension of the Lock-Up Period pursuant to the previous sentence to the undersigned
(in accordance with Section 5(x) of the Underwriting
Agreement) and agrees that any such notice properly delivered will be deemed to have given to,
and received by, the undersigned. The undersigned hereby further agrees that, prior to engaging in
any transaction or taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement to and including the
34th day following the expiration of the Lock-Up Period, it will give notice thereof to
the Company and will not consummate such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period (as such may have been extended
pursuant to this paragraph) has expired.
Notwithstanding the foregoing or anything to the contrary herein, the restrictions contained
in this Lock-Up Letter Agreement shall not apply to (i) shares of Common Stock acquired in open
market transactions by the undersigned after the consummation of the Offering, (ii) bona fide
gifts, shares transferred by will or intestate succession, sales or other dispositions of shares of
any class of the Company’s capital stock, in each case that are made exclusively between and among
the undersigned or members of the undersigned’s family, or affiliates of the undersigned, including
its partners (if a partnership) or members (if a limited liability company), (iii) shares of the
Company’s capital stock transferred to any corporation, partnership, limited liability company, or
other entity all of beneficial ownership interests of which are held by the undersigned, the
undersigned’s family or affiliates of the undersigned, (iv) the exercise of stock options to
purchase shares of Common Stock granted under an equity incentive plan of the Company; provided
that any shares of Common Stock obtained by such exercise or exchange shall remain subject to the
terms of this Lock-Up Letter Agreement, (v) shares of Common Stock acquired as a participant in the
Offering, (vi) the offer, sale or disposition of shares of Common Stock or any securities
convertible into or exercisable or exchangeable for any shares of Common Stock upon the
consummation of a merger or consolidation of the Company with another entity or in connection with
any acquisition of the Company (however structured) by another business or entity, in which all
holders of Common Stock or such securities convertible into or exercisable or exchangeable for any
shares of Common Stock are entitled to offer, sell or dispose of such securities in such
transaction (each a “Company Acquisition”) or any vote or other action in favor of, or in
connection with, such Company Acquisition, and (vii) the offer, sale or disposition of shares of
Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common
Stock in connection with any sale, lease, exclusive license or other conveyance of all or
substantially all of the assets of the Company by another business or entity; provided that, in the
case of clauses (ii) and (iii) above, (A) it shall be a condition to any such transfer that (a) the
transferee/donee agrees to be bound by the terms of this Lock-Up Letter Agreement (including,
without limitation, the restrictions set forth in the preceding sentence) to the same extent as if
the transferee/donee were a party hereto, (b) each party (donor, donee, transferor or transferee)
shall not be required by law (including without limitation the disclosure requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) to make, and shall agree to not voluntarily make, any public announcement of the
transfer or disposition, and (c) the undersigned notifies the Representatives at least two business
days prior to the proposed transfer or disposition, and (B) that no filing by any party (donor,
donee, transferor or transferee) under the Exchange Act shall be required or shall be voluntarily
made in connection with such transfer or distribution (other than a filing on a Form 5, Schedule
13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to
above).
The restrictions set forth in this Lock-Up Letter Agreement shall not apply to the
establishment of a trading plan that complies with Rule 10b5-1 under the Exchange Act; provided
however, that no sales shall be made pursuant to such trading plan during the Lock-Up Period.
In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to
decline to make any transfer of securities if such transfer would constitute a violation or breach
of this Lock-Up Letter Agreement.
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It is understood that, if the Company notifies the Underwriters that it does not intend to
proceed with the Offering, if the Underwriting Agreement does not become effective, if the
Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Stock, or in the event that the
Underwriting Agreement has not been executed on or before December 31, 2011, the undersigned will
be released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will proceed with the
Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the Underwriters.
[Signature page follows]
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The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours, |
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By: | ||||
Name: | ||||
Title: | ||||
Dated:
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