Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): February 3, 2011
(Exact
Name of Registrant as Specified in Charter)
Delaware
|
|
001-33038
|
|
84-1475672
|
(State
or Other Jurisdiction
of
Incorporation)
|
|
(Commission
File Number)
|
|
(IRS
Employer
Identification
No.)
|
1180
Avenue of the Americas
19th
Floor
New
York, NY
|
|
10036
|
(Address
of Principal Executive Offices)
|
|
(Zip
Code)
|
(646) 214-0700
(Registrant’s
telephone number, including area code)
Not
applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following
provisions:
o
|
Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425).
|
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12).
|
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b)).
|
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c)).
|
Item
1.01
|
Entry
into a Material Definitive
Agreement.
|
On
February 3, 2011, ZIOPHARM Oncology, Inc. (the “Company”) entered into an
underwriting agreement (the “Underwriting Agreement”) with Barclays Capital Inc.
(the “Underwriter”) relating to the issuance and sale of 9,600,000 shares of the
Company’s common stock, par value $0.001 per share. The price to the public in
this offering is $5.75 per share, and the Underwriter has agreed to purchase the
shares from the Company pursuant to the Underwriting Agreement at a purchase
price of $5.425 per share. Under the terms of the Underwriting Agreement, the
Company has also granted the Underwriter an option, exercisable for 30 days, to
purchase up to an additional 1,440,000 shares of common stock at a purchase
price of $5.425 per share. The net proceeds to the Company from this
offering are expected to be approximately $51.6 million, after deducting
underwriting discounts and commissions and estimated offering expenses payable
by the Company, assuming no exercise by the Underwriter of its option to
purchase additional shares of common stock. The transactions contemplated by the
Underwriting Agreement are expected to close on or about February 8, 2011,
subject to the satisfaction of customary closing conditions.
The offering is being made pursuant to
the Company’s effective registration statement on Form S-3 (Registration
Statement No. 333-166444) previously filed with the Securities and Exchange
Commission, and a prospectus supplement thereunder. The Underwriting
Agreement is filed as Exhibit 1.1 to this report, and the description of the
terms of the Underwriting Agreement is qualified in its entirety by reference to
such exhibit. The benefits and representations and warranties set
forth in the Underwriting Agreement are not intended to and do not constitute
continuing representations and warranties of the Company to persons not a party
thereto, including without limitation, any future or other
investor. A copy of the opinion of Maslon Edelman Borman & Brand,
LLP relating to the legality of the issuance and sale of the shares in the
offering is attached as Exhibit 5.1 hereto.
On February 3, 2011, the Company issued
a press release announcing that it had priced the offering. The press
release is attached as Exhibit 99.1.
|
Financial
Statements and Exhibits.
|
Exhibit No.
|
|
Description
|
|
|
|
1.1
|
|
Underwriting
Agreement dated February 3, 2011 between ZIOPHARM Oncology, Inc. and
Barclays Capital Inc.
|
5.1
|
|
Opinion
of Maslon Edelman Borman & Brand, LLP
|
23.1
|
|
Consent
of Maslon Edelman Borman & Brand, LLP (included as part of Exhibit
5.1)
|
99.1
|
|
Press
Release, dated February 3,
2011
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
|
|
|
ZIOPHARM
Oncology, Inc.
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Richard
Bagley |
|
|
|
Name:
Richard Bagley
|
|
|
|
Title:
President, Chief Operating Officer and Chief Financial
Officer
|
|
|
|
|
|
INDEX OF
EXHIBITS
Exhibit No.
|
|
Description
|
|
|
|
1.1
|
|
Underwriting
Agreement dated February 3, 2011 between ZIOPHARM Oncology, Inc. and
Barclays Capital Inc.
|
5.1
|
|
Opinion
of Maslon Edelman Borman & Brand, LLP
|
99.1
|
|
Press
Release, dated February 3, 2011
|
Unassociated Document
Exhibit
1.1
9,600,000
Shares
ZIOPHARM
ONCOLOGY, INC.
Common
Stock
($0.001
par value per Share)
UNDERWRITING
AGREEMENT
February
3, 2011
Barclays
Capital Inc.
745
Seventh Avenue
New York,
New York 10019
Ladies
and Gentlemen:
ZIOPHARM
Oncology, Inc., a Delaware corporation (the “Company”), proposes to sell
9,600,000 shares (the “Firm
Stock”) of the Company’s common stock, par value $0.001 per share (the
“Common
Stock”). In addition, the Company proposes to grant to
Barclays Capital Inc., as the sole underwriter (the “Underwriter”), an option to
purchase up to 1,440,000 additional shares of the Common Stock on the terms set
forth in Section 2 (the “Option
Stock”). The Firm Stock and the Option Stock, if purchased,
are hereinafter collectively called the “Stock.” This is to
confirm the agreement (this “Agreement”) concerning the
purchase of the Stock from the Company by the Underwriter.
1. Representations, Warranties and
Agreements of the Company. The Company represents,
warrants and agrees that:
(a) A
registration statement on Form S-3 relating to the Stock has (i) been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the “Securities Act”), and the
rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder;
(ii) been filed with the Commission under the Securities Act; and
(iii) become effective under the Securities Act. Copies of such
registration statement and any amendment thereto have been delivered by the
Company to you as the Underwriter. As used in this
Agreement:
(i)
“Applicable
Time” means 8:50 a.m. (New York City time) February 3, 2011;
(ii)
“Effective
Date” means any date as of which any part of such registration statement
relating to the Stock became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations of effective by the
Commission;
2
(iii) “Issuer Free Writing
Prospectus” means each “free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(iv) “Preliminary Prospectus” means
any preliminary prospectus relating to the Stock included in such registration
statement or filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement thereto relating to
the Stock;
(v) “Pricing Disclosure Package”
means, as of the Applicable Time, the most recent Preliminary Prospectus,
together with each Issuer Free Writing Prospectus filed or used by the Company
on or before the Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and Regulations;
(vi) “Prospectus” means the final
prospectus relating to the Stock, including any prospectus supplement thereto
relating to the Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “Registration Statement” means,
collectively, the various parts of such registration statement, each as amended
as of the Effective Date for such part, including any Preliminary Prospectus or
the Prospectus and all exhibits to such registration statement.
Any
reference to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be. Any reference to the “most recent Preliminary
Prospectus” shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement or filed pursuant to Rule 424(b) prior to
or on the date hereof (including, for purposes hereof, any documents
incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any document filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after
the date of such Preliminary Prospectus or the Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus or the Prospectus,
as the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company on Form
10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Date that is incorporated by reference in the
Registration Statement. Any reference herein to the term
“Registration Statement” shall be deemed to include any registration statement
to register additional shares of Common Stock under Rule 462(b) of the Rules and
Regulations (the “Rule 462(b)
Registration Statement”). The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending the effectiveness of the Registration Statement, and no
proceeding or examination for such purpose has been instituted or threatened by
the Commission.
3
(b) The
Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant
made a bona fide offer
(within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Stock, is not on the date hereof and will not be on the applicable Delivery Date
an “ineligible issuer” (as defined in Rule 405 of the Rules and Regulations).
The Company has been since the time of initial filing of the Registration
Statement and continues to be eligible to use Form S-3 for the offering of the
Stock.
(c) The
Registration Statement conformed and will conform in all material respects on
the Effective Date and on the applicable Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conformed, and
the Prospectus will conform, in all material respects when filed with the
Commission pursuant to Rule 424(b) and on the applicable Delivery Date to the
requirements of the Securities Act and the Rules and Regulations. The
documents incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated will conform,
when filed with the Commission, in all material respects to the requirements of
the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, 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; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein, which information is specified in Section
8(e).
(e) The
Prospectus will not, as of its date and on the applicable Delivery Date, 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, in the light
of the circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter specifically for
inclusion therein, which information is specified in Section 8(e).
(f) The
documents incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents filed and incorporated by
reference therein will not, when filed with the Commission, 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, in the light of the
circumstances under which they were made, not misleading.
4
(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein, which information is specified in Section
8(e).
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), when considered together with
the Pricing Disclosure Package as of the Applicable Time, did 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, in the light of
the circumstances under which they were made, not misleading.
(i)
Each Issuer
Free Writing Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations on the date
of first use, and the Company has complied with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Company has not made any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the prior written consent
of the Underwriter. The Company has retained in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Rules and Regulations.
(j)
Each of the Company and
its subsidiaries (as defined in Section 16) has been duly organized, is validly
existing and in good standing as a corporation or other business entity under
the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity
in each jurisdiction in which its ownership or lease of property or the conduct
of its businesses requires such qualification, except where the failure to be so
qualified or in good standing could not, in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), results of operations, stockholders’ equity, properties, business or
prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
Each of the Company and its subsidiaries has all power and authority necessary
to own or hold its properties and to conduct the businesses in which it is
engaged, except
where the failure to be so qualified or in good standing would not reasonably be
expected to result in a Material Adverse Effect. The Company does not
own or control, directly or indirectly, any corporation, association or other
entity other than ZIOPHARM Oncology Limited, a private limited company
incorporated in England and Wales under the Companies Act
1985. ZIOPHARM Oncology Limited, has no assets (other than as
statutorily required) or liabilities (contingent or otherwise) and conducts no
operations and is not a “significant subsidiary” (as defined in Rule
405).
5
(k) The
Company has an authorized capitalization as set forth in each of the most recent
Preliminary Prospectus and the Prospectus, and all of the issued shares of
capital stock of the Company have been duly authorized and validly issued, are
fully paid and non-assessable, conform to the description thereof contained in
the most recent Preliminary Prospectus and were issued in compliance with
federal and state securities laws and not in violation of any preemptive right,
resale right, right of first refusal or similar right. No options,
warrants or other rights to purchase or exchange any securities for shares of
the Company’s capital stock are outstanding other than those accurately
described in each of the most recent Preliminary Prospectus and the Prospectus,
and any of such options, warrants and other rights to purchase or exchange any
securities for shares of the Company’s capital stock have been duly authorized
and validly issued, conform to the description thereof contained in the most
recent Preliminary Prospectus and were issued in material compliance with
federal and state securities laws. All of the issued shares of
capital stock of each subsidiary of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims, except for such liens, encumbrances, equities or claims as could not,
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(l) The
shares of the Stock to be issued and sold by the Company to the Underwriter
hereunder have been duly authorized and, upon payment and delivery in accordance
with this Agreement, will be validly issued, fully paid and non-assessable, will
conform to the description thereof contained in the most recent Preliminary
Prospectus, will be issued in compliance with federal and state securities laws
and will be free of statutory and contractual preemptive rights, rights of first
refusal and similar rights, except for such rights as have been duly
waived.
(m) The
Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been
duly and validly authorized, executed and delivered by the Company, and is
enforceable against the Company in accordance with its terms, except as rights
to indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(n) The
execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby and the application of the
proceeds from the sale of the Stock as described in the most recent Preliminary
Prospectus will not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, impose any lien, charge or encumbrance upon
any property or assets of the Company and its subsidiaries, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, license
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; (ii) result in any violation of the provisions of the charter or
by-laws (or similar organizational documents) of the Company or any of its
subsidiaries; or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets, except in the case of clauses (i) and (iii) above, to the
extent any such conflict, breach or violation would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6
(o) No
consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets is required for the
execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby, the application of the
proceeds from the sale of the Stock as described in the most recent Preliminary
Prospectus, except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities laws in
connection with the purchase and sale of the Stock by the Underwriter or that
may be required under applicable state securities or blue sky laws and from the
Financial Industry Regulatory Authority (“FINRA”).
(p) Other
than as disclosed in the most recent Preliminary Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right (other than rights which have been waived in
writing or otherwise satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(q) The
Company has not sold or issued any securities that would be integrated with the
offering of the Stock contemplated by this Agreement pursuant to the Securities
Act, the Rules and Regulations or the interpretations thereof by the
Commission.
(r)
Neither the Company nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included or incorporated by
reference in the most recent Preliminary Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, and since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries or any
adverse change, or any development involving a prospective adverse change, in or
affecting the condition (financial or otherwise), results of operations,
stockholders’ equity, properties, management, business or prospects of the
Company and its subsidiaries taken as a whole, in each case except as could not,
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
7
(s) The
Company is insured by recognized, financially sound and reputable institutions
with policies in such amounts and with such deductibles and covering such risks
as are reasonably adequate and customary for its business as currently conducted
and described in the most recent Preliminary Prospectus and the Prospectus,
including, but not limited to, policies covering real and personal property
owned or leased by the Company against theft, damage, destruction, acts of
vandalism and policies covering the Company for product liability claims and
clinical trial liability claims. The Company has no reason to believe
that it will not be able (i) to renew its existing insurance coverage as
and when such policies expire or (ii) 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. The Company has not been denied any insurance coverage
material to the Company which it has sought or for which it has
applied.
(t) The
Company has established and maintains disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)), which (i) are designed
to ensure that material information relating to the Company is made known to the
Company’s principal executive officer and its principal financial officer by
others within the Company, particularly during the periods in which the periodic
reports required under the Exchange Act are being prepared; (ii) have been
evaluated by management of the Company for effectiveness as of the end of the
Company’s most recent fiscal quarter; and (iii) the Company’s principal
executive officer and principal financial officer concluded to be effective at
the reasonable assurance level. Based on the most recent evaluation
of its internal control over financial reporting, the Company is not aware of
(i) any significant deficiencies or material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the Company’s ability to record, process, summarize
and report financial information or (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in the
Company’s internal control over financial reporting. The Company is
not aware of any change in its internal control over financial reporting that
has occurred during its most recent fiscal quarter that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(u) Since
the date as of which information is given in the most recent Preliminary
Prospectus and except as described in the most recent Preliminary Prospectus,
the Company has not (i) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in the
ordinary course of business, (ii) entered into any material transaction not in
the ordinary course of business or (iii) declared or paid any dividend on its
capital stock.
(v) The
historical financial statements (including the related notes and supporting
schedules) included or incorporated by reference in the most recent Preliminary
Prospectus comply as to form in all material respects with the requirements of
Regulation S-X under the Securities Act and present fairly the financial
condition, results of operations and cash flows of the entities purported to be
shown thereby at the dates and for the periods indicated and have been prepared
in conformity with accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto.
8
(w) Each
of (i) McGladrey & Pullen, LLP and (ii) Caturano and Company, Inc., who has
certified certain financial statements of the Company and its consolidated
subsidiaries, whose report appears in the most recent Preliminary Prospectus or
is incorporated by reference therein are (a) an independent public accountants
as required by the Securities Act and the Rules and Regulations, (b) in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X and (c) a registered public
accounting firm as defined by the Public Company Accounting Oversight Board (the
“PCAOB”) whose
registration has not been suspended or revoked and, to the Company’s knowledge,
who has not requested such registration to be withdrawn.
(x) The
financial statements filed with the Commission as a part of the Registration
Statement and included in the Preliminary Prospectus, the most recent
Preliminary Prospectus and the Prospectus present fairly the financial position
of the Company as of and at the dates indicated and the results of its
operations and cash flows for the periods specified. The supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. Such financial statements and
supporting schedules have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a consistent
basis throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting
schedules are required to be included in the Registration Statement or any
applicable Prospectus. The financial data set forth or incorporated
by reference in each applicable Prospectus fairly present the information set
forth therein on a basis consistent with that of the audited financial
statements contained in the Registration Statement and each applicable
Prospectus. To the Company’s knowledge, no person who has been
suspended or barred from being associated with a registered public accounting
firm, or who has failed to comply with any sanction pursuant to Rule 5300
promulgated by the PCAOB, has participated in or otherwise aided the preparation
of, or audited, the financial statements, supporting schedules or other
financial data filed with the Commission as a part of the Registration Statement
and included in any applicable Prospectus.
(y) The
statistical and market-related data included in the most recent Preliminary
Prospectus and the consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the most recent
Preliminary Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate in all material respects.
(z) Neither
the Company nor any subsidiary is, and as of the applicable Delivery Date and,
after giving effect to the offer and sale of the Stock and the application of
the proceeds therefrom as described in the most recent Preliminary Prospectus
and the Prospectus, none of them will be, (i) an “investment company” within the
meaning of such term under the Investment Company Act of 1940, as amended (the
“Investment Company
Act”), and the rules and regulations of the Commission thereunder or (ii)
a “business development company” (as defined in Section 2(a)(48) of the
Investment Company Act).
9
(aa) There
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or assets of the Company or
any of its subsidiaries is the subject that could, in the aggregate, reasonably
be expected to have a Material Adverse Effect or could, in the aggregate,
reasonably be expected to have a material adverse effect on the performance of
this Agreement or the consummation of the transactions contemplated hereby; and
to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others.
(bb) Except
as described in the most recent Preliminary Prospectus, no relationship, direct
or indirect, exists between or among the Company, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company, on the
other hand, that is required to be described in the most recent Preliminary
Prospectus which is not so described.
(cc) No
labor disturbance by the employees of the Company or its subsidiaries exists or,
to the knowledge of the Company, is imminent that could reasonably be expected
to have a Material Adverse Effect.
(dd) (i)
Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee
Retirement Security Act of 1974, as amended (“ERISA”)) for which the Company
or any member of its “Controlled Group” (defined as any organization which is a
member of a controlled group of corporations within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any
liability (each a “Plan”) has been maintained in
material compliance with its terms and with the requirements of all applicable
statutes, rules and regulations including ERISA and the Code; (ii) with respect
to each Plan subject to Title IV of ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur, (b) no “accumulated funding deficiency” (within the meaning of Section
302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or
is reasonably expected to occur, (c) the fair market value of the assets under
each Plan exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan) and (d) neither
the Company or any member of its Controlled Group has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC in the ordinary course and
without default) in respect of a Plan (including a “multiemployer plan”, within
the meaning of Section 4001(c)(3) of ERISA); and (iii) each Plan that is
intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or by failure to act, which would
reasonably be expected to cause the loss of such qualification.
(ee) The
Company and each of its subsidiaries have filed all federal, state, local and
foreign income and franchise tax returns required to be filed through the date
hereof, subject to permitted extensions, and have paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company or any of its
subsidiaries, nor does the Company have any knowledge of any tax deficiencies
that could, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
10
(ff) There
are no transfer taxes or other similar fees or charges under Federal law or the
laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by
the Company or sale by the Company of the Stock.
(gg) Neither
the Company nor any of its subsidiaries (i) is in violation of its charter or
by-laws (or similar organizational documents), (ii) is in default, and no event
has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii) is in violation of
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over it or its property or assets or has failed to
obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the
conduct of its business, except in the case of clauses (ii) and (iii), to the
extent any such conflict, breach, violation or default could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(hh) There
is and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith.
(ii)
The Company and each
of its subsidiaries have such permits, licenses, patents, franchises,
certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“Permits”) as are necessary
under applicable law to own their properties and conduct their businesses in the
manner described in the most recent Preliminary Prospectus, except for any of
the foregoing that could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; each of the Company and its subsidiaries has fulfilled
and performed all of its obligations with respect to the Permits, and no event
has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of the
rights of the holder or any such Permits, except for any of the foregoing that
could not reasonably be expected to have a Material Adverse Effect.
11
(jj) The
Company owns, possesses or can acquire on reasonable terms sufficient
trademarks, trade names, patent rights, copyrights, domain names, licenses,
approvals, trade secrets and other similar rights (collectively, “Intellectual Property Rights”)
reasonably necessary to conduct its businesses as now conducted; except to the
extent failure to own, possess or acquire such Intellectual Property Rights
would not result in a Material Adverse Effect. The Company has not
received and has no reason to believe that it will receive, any notice of
infringement or conflict with asserted Intellectual Property Rights of
others. Except as would not be reasonably likely to result,
individually or in the aggregate, in a Material Adverse Effect (A) to the
Company’s knowledge there is no infringement, misappropriation or violation by
third parties of any of the Intellectual Property Rights owned by the Company;
(B) there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the rights of the Company in or to any
such Intellectual Property Rights, and the Company is unaware of any facts which
would form a reasonable basis for any such claim, that would reasonably be
expected, individually or in the aggregate, together with any other claims in
this subsection (p) to result in a Material Adverse Effect; (C) the Intellectual
Property Rights owned by the Company and, to the Company’s knowledge, the
Intellectual Property Rights licensed to the Company have not been adjudged by a
court of competent jurisdiction invalid or unenforceable, in whole or in part,
and there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property Rights, and, except as described in the most recent
Preliminary Prospectus and the Prospectus, the Company is unaware of any facts
which would form a reasonable basis for any such claim that would reasonably be
expected, individually or in the aggregate, together with any other claims in
this subsection (p) to result in a Material Adverse Effect; (D) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes, misappropriates or otherwise
violates any Intellectual Property Rights or other proprietary rights of others,
the Company has not received any written notice of such claim and the Company is
unaware of any other facts which would form a reasonable basis for any such
claim that would reasonably be expected, individually or in the aggregate,
together with any other claims in this subsection (p) to result in a Material
Adverse Effect; (E) the Company is not aware of any prior art that could
reasonably be expected to render any patent held by or licensed to the Company
invalid or any U.S. patent application held by or licensed to the Company
unpatentable which prior art was required to be disclosed to the U.S. Patent and
Trademark Office during the prosecution of the applicable patent application and
which was not so disclosed to the U.S. Patent and Trademark Office; (F) to the
Company’s knowledge, all prior art references relevant to the patentability of
any pending claim of any patent applications comprising or that have resulted in
Intellectual Property Rights known to the Company, applicable inventor(s) or
licensors, or any of their counsel during the prosecution of such patent
applications that were required to be disclosed to the relevant patent authority
were so disclosed by the required time, and, to the best of the Company’s
knowledge, neither the Company nor any such inventor, licensor or counsel made
any misrepresentation to, or omitted any material fact from, the relevant patent
authority during such prosecution; and (G) to the Company’s knowledge, no
employee of the Company is in or has ever been in violation in any material
respect of any term of any employment contract, patent disclosure agreement,
invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a
former employer where the basis of such violation relates to such employee’s
employment with the Company, or actions undertaken by the employee while
employed with the Company and would reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect. To
the Company’s knowledge, all material technical information developed by and
belonging to the Company for which it has not sought, and does not intend to
seek, to patent or otherwise protect pursuant to applicable intellectual
property laws has been kept confidential or disclosed only under obligations of
confidentiality. The Company is not a party to or bound by any
options, licenses or agreements with respect to the Intellectual Property Rights
of any other person or entity that are required to be set forth in the
Prospectus and are not described therein. The most recent Preliminary
Prospectus contains in all material respects the same description of the matters
set forth in the preceding sentence contained in the Prospectus. None
of the technology employed by the Company has been obtained or is being used by
the Company in violation of any contractual obligation binding on the Company
or, to the Company’s knowledge, any of its officers, directors or employees or
otherwise in violation of the rights of any persons, except in each case for
such violations that would not reasonably be expected to result in a Material
Adverse Effect.
12
(kk) Except
as described in the most recent Preliminary Prospectus, (A) there are no
proceedings that are pending, or known to be contemplated, against the Company
or any of its subsidiaries under any laws, regulations, ordinances, rules,
orders, judgments, decrees, permits or other legal requirements of any
governmental authority, including without limitation any international,
national, state, provincial, regional, or local authority, relating to the
protection of human health or safety, the environment, or natural resources, or
to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) in which
a governmental authority is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000 or more will
be imposed, (B) the Company and its subsidiaries are not aware of any issues
regarding compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws or concerning hazardous or toxic substances
or wastes, pollutants or contaminants, that could reasonably be expected to have
a material effect on the capital expenditures, earnings or competitive position
of the Company and its subsidiaries, and (C) none of the Company and
its subsidiaries anticipates material capital expenditures relating to
Environmental Laws.
(ll)
No subsidiary of the
Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in the most recent Preliminary
Prospectus.
(mm) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of the Company,
any director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries, has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977 (the “FCPA”); or (iv) made any
bribe, rebate, payoff, influence payment, kickback or other unlawful payment;
and the Company and, to the Company’s knowledge, the Company’s affiliates have
conducted their respective businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
13
(nn) 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 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”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened, except, in each case,
as would not reasonably be expected to have a Material Adverse
Effect.
(oo) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is 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.
(pp) The
Company has not distributed and, prior to the later to occur of any Delivery
Date and completion of the distribution of the Stock, will not distribute any
offering material in connection with the offering and sale of the Stock other
than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus to which the Underwriter has consented in accordance with Section
1(i) or 5(a)(vi).
(qq) The
Company has not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be expected to
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the shares of the
Stock.
(rr) The
Stock has been approved for listing on the NASDAQ Capital Market.
(ss) All
of the information provided to the Underwriter or to counsel for the Underwriter
by the Company, its officers and directors and, to the Company’s knowledge, the
holders of any securities (debt or equity) or options to acquire any securities
of the Company in connection with letters, filings or other supplemental
information, if any, provided pursuant to FINRA Rule 5110 or the National
Association of Securities Dealers Inc. (the “NASD”) Conduct Rule 2710
or 2720 is true, complete and correct. To enable the Underwriter to rely on
FINRA Rule 5110(b)(7)(C)(i), (i) the Company was subject to the requirements of
Section 12 or 15(d) of the Exchange Act and filed all the material required to
be filed pursuant to Sections 13, 14 or 15(d) of the Exchange Act for a period
of at least thirty-six calendar months immediately preceding the date of this
Agreement; (ii) the Company filed in a timely manner all reports required to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act during the twelve
calendar months and any portion of a month immediately preceding the date of
this Agreement; (iii) the last reported sale price of the Company’s common stock
on the NASDAQ Capital Market on February 2, 2011 was $6.20; (iv) as of such
date, there were greater than 30,000,000 shares of the Company’s common stock
outstanding and held by non-affiliates of the Company; and (v) the Company has
annual trading volume of 3 million shares or more.
14
(tt) The
studies, tests and preclinical and clinical trials conducted by or on behalf of
the Company were and, if still pending, are being conducted in compliance with
experimental protocols, procedures and controls pursuant to accepted
professional scientific standards and all applicable laws and authorizations,
including, without limitation, the Federal Food, Drug and Cosmetic Act and the
rules and regulations promulgated thereunder, except where the failure to be in
compliance has not resulted and would not reasonably be expected to result in a
Material Adverse Effect; the descriptions of the results of such studies, tests
and trials contained in any applicable Prospectus are accurate and complete in
all material respects and fairly present the data derived from such studies,
tests and trials; except to the extent disclosed in any applicable Prospectus,
the Company is not aware of any studies, tests or trials, the results of which
the Company believes reasonably call into question the study, test, or trial
results described or referred to in any applicable Prospectus when viewed in the
context in which such results are described and the clinical state of
development; and the Company has not received any notices or correspondence from
any applicable governmental authority requiring the termination, suspension or
material modification of any studies, tests or preclinical or clinical trials
conducted by or on behalf of the Company.
Any
certificate signed by any officer of the Company and delivered to the
Underwriter or counsel for the Underwriter in connection with the offering of
the Stock shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to the Underwriter.
2. Purchase of the Stock by the
Underwriter. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to sell the Firm Stock to the Underwriter, and the
Underwriter agrees to purchase the Firm Stock.
In
addition, the Company grants to the Underwriter an option to purchase up to
1,440,000 additional shares of Option Stock. Such option is exercisable in
the event that the Underwriter sells more shares of Common Stock than the number
of Firm Stock in the offering and as set forth in Section 4 hereof.
The price
of both the Firm Stock and any Option Stock purchased by the Underwriter shall
be $5.425 per share.
The
Company shall not be obligated to deliver any of the Firm Stock or Option Stock
to be delivered on the applicable Delivery Date, except upon payment for all
such Stock to be purchased on such Delivery Date as provided
herein.
15
3. Offering
of Stock by the Underwriter. The Underwriter proposes to
offer the Firm Stock for sale upon the terms and conditions to be set forth in
the Prospectus.
4. Delivery of and Payment for
the Stock. Delivery of and
payment for the Firm Stock shall be made at 10:00 A.M., New York City time,
on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Underwriter
and the Company. This date and time are sometimes referred to as the
“Initial Delivery
Date.” Delivery of the Firm Stock shall be made to the
Underwriter against payment by the Underwriter and of the aggregate purchase
price of the Firm Stock being sold by the Company to or upon the order of the
Company of the purchase price by wire transfer in immediately available funds to
the accounts specified by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the Underwriter hereunder. The Company
shall deliver the Firm Stock through the facilities of DTC unless the
Underwriter shall otherwise instruct.
The
option granted in Section 2 will expire 30 days after the date of this Agreement
and may be exercised in whole or from time to time in part by written notice
being given to the Company by the Underwriter; provided that if such date
falls on a day that is not a business day, the option granted in Section 2 will
expire on the next succeeding business day. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Underwriter, when the shares
of Option Stock are to be delivered; provided, however, that this
date and time shall not be earlier than the Initial Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. Each date and time the shares of
Option Stock are delivered is sometimes referred to as an “Option Stock Delivery Date,”
and the Initial Delivery Date and any Option Stock Delivery Date are sometimes
each referred to as a “Delivery
Date.”
Delivery
of the Option Stock by the Company and payment for the Option Stock by the
Underwriter shall be made at 10:00 A.M., New York City time, on the date
specified in the corresponding notice described in the preceding paragraph or at
such other date or place as shall be determined by agreement between the
Underwriter and the Company. On the Option Stock Delivery Date, the
Company shall deliver or cause to be delivered the Option Stock to the
Underwriter against payment by the Underwriter and of the respective aggregate
purchase prices of the Option Stock being sold by the Company to or upon the
order of the Company of the purchase price by wire transfer in immediately
available funds to the accounts specified by the Company. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of the Underwriter
hereunder. The Company shall deliver the Option Stock through the
facilities of DTC unless the Underwriter shall otherwise instruct.
16
5. Further Agreements of the Company
and the Underwriter. (a) The Company agrees:
(i) To
prepare the Prospectus in a form approved by the Underwriter and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than the
Commission’s close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to the last
Delivery Date except as provided herein; to advise the Underwriter, promptly
after it receives notice thereof, of the time when any amendment or supplement
to the Registration Statement or the Prospectus has been filed and to furnish
the Underwriter with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Stock; to advise the Underwriter, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Prospectus or any Issuer Free Writing Prospectus,
of the suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding or examination
for any such purpose or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
the Prospectus or any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(ii) To
furnish promptly to the Underwriter and to counsel for the Underwriter a signed
copy of the Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith;
(iii) To
deliver promptly to the Underwriter such number of the following documents as
the Underwriter shall reasonably request: (A) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement and
the computation of per share earnings), (B) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free
Writing Prospectus and (D) any document incorporated by reference in any
Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus
is required at any time after the date hereof in connection with the offering or
sale of the Stock or any other securities relating thereto and if at such time
any events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, to notify the Underwriter and, upon
its request, to file such document and to prepare and furnish without charge to
the Underwriter and to any dealer in securities as many copies as the
Underwriter may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or omission or effect
such compliance;
17
(iv) To
file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the
Company or the Underwriter, be required by the Securities Act or requested by
the Commission;
(v) Prior
to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, any document incorporated by reference in the
Prospectus or any amendment to any document incorporated by reference in the
Prospectus, to furnish a copy thereof to the Underwriter and counsel for the
Underwriter and obtain the consent of the Underwriter to the
filing;
(vi) Not
to make any offer relating to the Stock that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Underwriter.
(vii) To
comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus; and if at any time after the date hereof any events
shall have occurred as a result of which any Issuer Free Writing Prospectus, as
then amended or supplemented, would conflict with the information in the
Registration Statement, the most recent Preliminary Prospectus or the Prospectus
or would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or, if for any
other reason it shall be necessary to amend or supplement any Issuer Free
Writing Prospectus, to notify the Underwriter and, upon its request, to file
such document and to prepare and furnish without charge to the Underwriter as
many copies as the Underwriter may from time to time reasonably request of an
amended or supplemented Issuer Free Writing Prospectus that will correct such
conflict, statement or omission or effect such compliance;
(viii) As
soon as practicable after the Effective Date and in any event not later than 16
months after the date hereof, to make generally available to the Company’s
security holders and to deliver to the Underwriter an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations;
(ix) Promptly
from time to time to take such action as the Underwriter may reasonably request
to qualify the Stock for offering and sale under the securities laws of Canada
and such other jurisdictions as the Underwriter may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Stock; provided
that in connection therewith the Company shall not be required to (i) qualify as
a foreign corporation in any jurisdiction in which it would not otherwise be
required to so qualify, (ii) file a general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any jurisdiction in
which it would not otherwise be subject;
18
(x) For
a period commencing on the date hereof and ending on the 90th day after the date
of the Prospectus (the “Lock-Up
Period”), not to, 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 or securities convertible
into or exchangeable for Common Stock (other than the Stock and shares issued
pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans existing on the date hereof, or pursuant to
agreements existing on the date hereof and disclosed in the Prospectus), or sell
or grant options, rights or warrants with respect to any shares of Common Stock
or securities convertible into or exchangeable for Common Stock (other than the
grant of options pursuant to option plans existing on the date hereof and
disclosed in the Prospectus); provided, however, that the Company may issue
shares of Common Stock or securities convertible into or exchangeable for Common
Stock to one or more counterparties in connection with the consummation of a
strategic partnership, joint venture, collaboration, merger or the acquisition
or license of any business products or technology (a “Strategic Transaction”)
including without limitation an issuance of 3,636,926 shares of Common Stock
that is contingent upon satisfaction of a development milestone under a Stock
Purchase Agreement dated January 6, 2011 with Intrexon Corporation (the “Intrexon Shares”) (provided
that (A) the sum of the aggregate number of shares of Common Stock so issued in
connection with Strategic Transactions (other than the Intrexon Shares) shall
not exceed 5% of the total outstanding shares of Common Stock immediately
following the completion of this offering of Stock and (B) prior to the issuance
of such shares of Common Stock each recipient of such Common Stock agrees in
writing not to sell, offer, dispose of or otherwise transfer any such Common
Stock during such Lock-Up Period without the prior written consent of the
Underwriter (which consent may be withheld at the sole discretion of the
Underwriter)), (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 such 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) file or cause to be filed a
registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of the
Company (other than any registration statement on Form S-8) or (4) publicly
disclose the intention to do any of the foregoing, in each case without the
prior written consent of Barclays Capital Inc. and to cause each officer,
director and stockholder of the Company set forth on Schedule 1 hereto to
furnish to the Underwriter, prior to the Initial Delivery Date, a letter or
letters, substantially in the form of Exhibit A hereto (the
“Lock-Up Agreements”);
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 in this paragraph 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 Barclays Capital Inc. waives such extension in writing;
except that such extension will not apply if (i) the shares of Common Stock are
“actively traded securities” (as defined in Regulation M), (ii) the Company
meets the applicable requirements of paragraph (a)(1) of Rule 139
under the Securities Act in the manner contemplated by NASD Conduct
Rule 2711(f)(4), and (iii) the provisions of NASD Conduct
Rule 2711(f)(4) do not restrict the publishing or distribution of any
research reports relating to the Company published or distributed by the
Underwriter during the 15 days before or after the last day of the Lock-Up
Period (before giving effect to such extension);
19
(xi) To
apply the net proceeds from the sale of the Stock being sold by the Company as
set forth in the Prospectus;
(b) The
Underwriter agrees that the Underwriter shall not include any “issuer
information” (as defined in Rule 433) in any “free writing prospectus” (as
defined in Rule 405) used or referred to by the Underwriter without the prior
consent of the Company (any such issuer information with respect to whose use
the Company has given its consent, “Permitted Issuer
Information”); provided that (i) no such
consent shall be required with respect to any such issuer information contained
in any document filed by the Company with the Commission prior to the use of
such free writing prospectus and (ii) “issuer information,” as used in this
Section 5(b), shall not be deemed to include information prepared by or on
behalf of the Underwriter on the basis of or derived from issuer
information.
6. Expenses. The
Company agrees, whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, to pay all costs, expenses,
fees and taxes incident to and in connection with (a) the authorization,
issuance, sale and delivery of the Stock and any stamp duties or other taxes
payable in that connection, and the preparation and printing of certificates for
the Stock; (b) the preparation, printing and filing under the Securities Act of
the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto; (c) the distribution of the Registration Statement
(including any exhibits thereto), any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus and any amendment or supplement thereto, or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the production and distribution of this Agreement and any other
related documents in connection with the offering, purchase, sale and delivery
of the Stock; (e) any required review by the FINRA of the terms of sale of the
Stock (including related fees and expenses of counsel to the Underwriter in an
amount that is not greater than $10,000); (f) the listing of the
Stock on the NASDAQ Capital Market and/or any other exchange; (g) the
qualification of the Stock under the securities laws of the several
jurisdictions as provided in Section 5(a)(ix) and the preparation, printing and
distribution of a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriter); (h) the preparation, printing and distribution of
one or more versions of the Preliminary Prospectus and the Prospectus for
distribution in Canada, often in the form of a Canadian “wrapper” (including
related fees and expenses of Canadian counsel to the Underwriter in an amount
that is not greater than $10,000); (i) the investor presentations on any “road
show” undertaken in connection with the marketing of the Stock, including,
without limitation, expenses associated with any electronic roadshow, travel and
lodging expenses of the representatives and officers of the Company and the cost
of any aircraft chartered in connection with the road show; and (j) all other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement; provided that, except as
provided in this Section 6 and in Section 10, the Underwriter shall pay its own
costs and expenses, including the costs and expenses of its counsel, any
transfer taxes on the Stock which it may sell and the expenses of advertising
any offering of the Stock made by the Underwriter.
20
7. Conditions of Underwriter’s
Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy, when made and on each Delivery Date, of
the representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i); the Company shall have complied with all filing requirements
applicable to any Issuer Free Writing Prospectus used or referred to after the
date hereof; no stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of the Prospectus or any Issuer
Free Writing Prospectus shall have been issued and no proceeding or examination
for such purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
(b) FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(c) The
Underwriter shall not have discovered and disclosed to the Company on or prior
to such Delivery Date that the Registration Statement, the Prospectus or the
Pricing Disclosure Package, or any amendment or supplement thereto, contains an
untrue statement of a fact which, in the opinion of Cooley LLP, counsel for the
Underwriter, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Stock, the Registration Statement, the
Prospectus and any Issuer Free Writing Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the Underwriter,
and the Company shall have furnished to such counsel all documents and
information that it may reasonably request to enable them to pass upon such
matters.
(e) Maslon
Edelman Borman & Brand, LLP shall have furnished to the Underwriter its
written opinion and negative assurance letter, as counsel to the Company, each
addressed to the Underwriter and dated such Delivery Date, in form and substance
reasonably satisfactory to the Underwriter, each substantially in the form
attached hereto as Exhibits B-1 and
B-2
respectively.
21
(f) Ropes
& Gray LLP shall have furnished to the Underwriter its negative assurance
letter, as intellectual property counsel to the Company, addressed to the
Underwriter and dated such Delivery Date, in form and substance reasonably
satisfactory to the Underwriter, substantially in the form attached hereto as
Exhibit
C.
(g) WilmerHale
LLP shall have furnished to the Underwriter its written opinion, as intellectual
property counsel to the Company, addressed to the Underwriter and dated such
Delivery Date, in form and substance reasonably satisfactory to the Underwriter,
substantially in the form attached hereto as Exhibit
D.
(h) The
Underwriter shall have received from Cooley LLP, counsel for the Underwriter,
such opinion and negative assurance letter, dated such Delivery Date, with
respect to the issuance and sale of the Stock, the Registration Statement, the
Prospectus and the Pricing Disclosure Package and other related matters as the
Underwriter may reasonably require, and the Company shall have furnished to such
counsel such documents as it reasonably request for the purpose of enabling them
to pass upon such matters.
(i)
At the time of execution of this Agreement, the Underwriter shall have received
from Caturano and Company, Inc. a letter, in form and substance satisfactory to
the Underwriter, addressed to the Underwriter and dated the date hereof (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates as of
which specified financial information is given in the most recent Preliminary
Prospectus, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters” to
underwriters in connection with registered public offerings.
(j) With
respect to the letter of Caturano and Company, Inc. referred to in the preceding
paragraph and delivered to the Underwriter concurrently with the execution of
this Agreement (the “Caturano
initial letter”), the Company shall have furnished to the Underwriter a
letter (the “Caturano
bring-down letter”) of such accountants, addressed to the Underwriter and
dated such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the Caturano bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days
prior to the date of the Caturano bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the Caturano initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the Caturano initial
letter.
22
(k) At
the time of execution of this Agreement, the Underwriter shall have received
from McGladrey & Pullen, LLP a letter, in form and substance satisfactory to
the Underwriter, addressed to the Underwriter and dated the date hereof (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates as of
which specified financial information is given in the most recent Preliminary
Prospectus, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters” to
underwriters in connection with registered public offerings.
(l) With
respect to the letter of McGladrey & Pullen, LLP referred to in the
preceding paragraph and delivered to the Underwriter concurrently with the
execution of this Agreement (the “McGladrey initial letter”),
the Company shall have furnished to the Underwriter a letter (the “McGladrey bring-down letter”)
of such accountants, addressed to the Underwriter and dated such Delivery Date
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
McGladrey bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than three days prior to the date of the McGladrey bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the McGladrey initial letter and
(iii) confirming in all material respects the conclusions and findings set
forth in the McGladrey initial letter.
(m) The
Company shall have furnished to the Underwriter a certificate, dated such
Delivery Date, of its Chief Executive Officer and its Chief Financial Officer
stating that:
(ii) No
stop order suspending the effectiveness of the Registration Statement has been
issued; and no proceedings or examination for that purpose have been instituted
or, to the knowledge of such officers, threatened; and
23
(iii) They
have carefully examined the Registration Statement, the Prospectus and the
Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and on
the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material
fact and did not and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which they were
made) not misleading, and (B) since the Effective Date, no event has occurred
that should have been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus that has not
been so set forth;
(n) (i)
Neither the Company nor any of its subsidiaries shall have sustained, since the
date of the latest audited financial statements included or incorporated by
reference in the most recent Preliminary Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree or (ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations, stockholders’
equity, properties, management, business or prospects of the Company and its
subsidiaries taken as a whole, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Underwriter, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(o) Subsequent
to the execution and delivery of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Company’s debt securities or preferred stock
by any “nationally recognized statistical rating organization” (as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations), and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company’s debt securities or preferred stock.
(p) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions, including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on
the financial markets in the United States shall be such), as to make it, in the
judgment of the Underwriter, impracticable or inadvisable to proceed with the
public offering or delivery of the Stock being delivered on such Delivery Date
on the terms and in the manner contemplated in the Prospectus.
24
(q) Except
as contemplated by this Agreement, there is no broker, finder or other party
that is entitled to receive from the Company any brokerage or finder’s fee or
other fee or commission as a result of any transactions contemplated by this
Agreement.
(r) The
Lock-Up Agreements between the Underwriter and the officers, directors and
stockholders of the Company set forth on Schedule 1, delivered
to the Underwriter on or before the date of this Agreement, shall be in full
force and effect on such Delivery Date.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to
counsel for the Underwriter.
8. Indemnification and
Contribution.
(a) The
Company shall indemnify and hold harmless the Underwriter, its directors,
officers and employees and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which the Underwriter or
that director, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) any Preliminary Prospectus,
the Registration Statement, the Prospectus or in any amendment or supplement
thereto, (B) any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or (C) any Permitted Issuer Information used or referred to
in any “free writing prospectus” (as defined in Rule 405) used or referred to by
the Underwriter, (D) any “road show” (as defined in Rule 433) not constituting
an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or
(E) any Blue Sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the Company for use
therein) specifically for the purpose of qualifying any or all of the Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a “Blue Sky Application”) or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any Permitted Issuer Information, any
Non-Prospectus Road Show or any Blue Sky Application, any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter or that director, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any such amendment or supplement thereto or
in any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue
Sky Application, in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company by the Underwriter
specifically for inclusion therein, which information consists solely of the
information specified in Section 8(e). The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to the Underwriter or to any director, officer, employee or controlling person
of the Underwriter.
25
(b) The
Underwriter shall indemnify and hold harmless the Company, its directors,
officers and employees, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Non-Prospectus Road Show or Blue Sky Application, or (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any Non-Prospectus Road Show or Blue
Sky Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company by the Underwriter
specifically for inclusion therein, which information is limited to the
information set forth in Section 8(e). The foregoing indemnity agreement is in
addition to any liability that the Underwriter may otherwise have to the Company
or any such director, officer, employee or controlling person.
26
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of any
claim or the commencement of any action, the indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section
8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the
indemnified party shall have the right to employ counsel to represent jointly
the indemnified party and those other indemnified parties and their respective
directors, officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
under this Section 8 if (i) the indemnified party and the indemnifying party
shall have so mutually agreed; (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to the indemnified
party; (iii) the indemnified party and its directors, officers, employees and
controlling persons shall have reasonably concluded that there may be legal
defenses available to them that are different from or in addition to those
available to the indemnifying party; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the indemnified
parties or their respective directors, officers, employees or controlling
persons, on the one hand, and the indemnifying party, on the other hand, and
representation of both sets of parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, and
in any such event the fees and expenses of such separate counsel shall be paid
by the indemnifying party. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as to the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
27
(d) If
the indemnification provided for in this Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriter, on the other,
from the offering of the Stock or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company, on the one hand, and the Underwriter, on
the other, with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriter, on the other,
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company, as set forth in
the table on the cover page of the Prospectus, on the one hand, and the total
underwriting discounts and commissions received by the Underwriter with respect
to the shares of the Stock purchased under this Agreement, as set forth in the
table on the cover page of the Prospectus, on the other hand. The
relative fault shall be determined by reference to whether the 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 the Underwriter,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company and the Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the net proceeds from the
sale of the Stock underwritten by it exceeds the amount of any damages that the
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The
Underwriter confirms and the Company acknowledges and agrees that the statements
regarding delivery of shares by the Underwriter set forth on the cover page of,
and the concession and reallowance figures and the paragraphs relating to
stabilization by the Underwriter appearing under the caption “Underwriting” in,
the most recent Preliminary Prospectus and the Prospectus are correct and
constitute the only information concerning the Underwriter furnished in writing
to the Company by or on behalf of the Underwriter specifically for inclusion in
any Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto or in
any Non-Prospectus Road Show.
9. Termination. The
obligations of the Underwriter hereunder may be terminated by the Underwriter by
notice given to and received by the Company prior to delivery of and payment for
the Firm Stock if, prior to that time, any of the events described in Sections
7(n), 7(o) and 7(p) shall have occurred or if the Underwriter shall decline to
purchase the Stock for any reason permitted under this Agreement.
28
10. Reimbursement of Underwriter’s
Expenses. If the Company shall fail to tender the Stock
for delivery to the Underwriter for any reason or (b) the Underwriter shall
decline to purchase the Stock for any reason permitted under this Agreement, the
Company will reimburse the Underwriter for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriter in
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company shall pay the full amount thereof to the
Underwriter.
11. Research Analyst Independence.
The Company acknowledges that the Underwriter’s research analysts and
research departments are required to be independent from its investment banking
division and are subject to certain regulations and internal policies, and that
the Underwriter’s research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the
Company and/or the offering that differ from the views of its investment banking
division. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the
Underwriter with respect to any conflict of interest that may arise from the
fact that the views expressed by its independent research analysts and research
departments may be different from or inconsistent with the views or advice
communicated to the Company by the Underwriter’s investment banking
division. The Company acknowledges that the Underwriter is a full
service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of
its customers and hold long or short positions in debt or equity securities of
the companies that may be the subject of the transactions contemplated by this
Agreement.
12. No Fiduciary
Duty. The Company acknowledges and agrees that in connection
with this offering, sale of the Stock or any other services the Underwriter may
be deemed to be providing hereunder, notwithstanding any preexisting
relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriter: (i) no fiduciary or agency relationship between the
Company and any other person, on the one hand, and the Underwriter, on the
other, exists; (ii) the Underwriter is not acting as an advisor, expert or
otherwise, to the Company, including, without limitation, with respect to the
determination of the public offering price of the Stock, and such relationship
between the Company, on the one hand, and the Underwriter, on the other, is
entirely and solely commercial, based on arms-length negotiations; (iii) any
duties and obligations that the Underwriter may have to the Company shall be
limited to those duties and obligations specifically stated herein; and (iv) the
Underwriter and its affiliates may have interests that differ from those of the
Company. The Company hereby waives any claims that the Company may
have against the Underwriter with respect to any breach of fiduciary duty in
connection with this offering.
13. Notices,
Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if
to the Underwriter, shall be delivered or sent by mail or facsimile transmission
to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019,
Attention: Syndicate Registration (Fax: 646-834-8133), with a copy,
in the case of any notice pursuant to Section 8, to the Director of Litigation,
Office of the General Counsel, Barclays Capital Inc., 745 Seventh Avenue, New
York, New York 10019;
29
(b) if
to the Company, shall be delivered or sent by mail or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Chief Executive Officer (Fax: (646) 214-0711).
Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made by Barclays Capital
Inc.
14. Persons Entitled to Benefit of
Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriter, the Company, and their respective
successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the directors, officers
and employees of the Underwriter and each person or persons, if any, who control
the Underwriter within the meaning of Section 15 of the Securities Act and
(B) the indemnity agreement of the Underwriter contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of the directors of the
Company, the officers of the Company who have signed the Registration Statement
and any person controlling the Company within the meaning of Section 15 of
the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
14, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
15. Survival. The
respective indemnities, representations, warranties and agreements of the
Company and the Underwriter contained in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Stock and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
16. Definition of the Terms “Business
Day” and “Subsidiary”. For purposes of this Agreement,
(a) “business day” means
each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close and (b) “subsidiary” has the meaning
set forth in Rule 405 of the Rules and Regulations.
17. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same
instrument.
19. Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
30
If the
foregoing correctly sets forth the agreement between the Company and the
Underwriter, please indicate your acceptance in the space provided for that
purpose below.
|
Very
truly yours,
|
|
|
|
ZIOPHARM
ONCOLOGY, INC.
|
|
|
|
By:
|
/s/ Jonathan Lewis
|
|
|
Name:
Jonathan Lewis, M.D., Ph.D.
|
|
|
Title:
Chief Executive Officer
|
31
Barclays
Capital Inc.
By:
|
/s/ Victoria Hale
|
|
|
Authorized
Representative
|
|
SCHEDULE
1
PERSONS
DELIVERING LOCK-UP AGREEMENTS
Directors and
Officers
Jonathan
Lewis
Richard
Bagley
Murray
Brennan
James
Cannon
Wyche
Fowler, Jr.
Randal J.
Kirk
Timothy
McInerney
Michael
Weiser
Stockholders
Intrexon
Corporation
EXHIBIT
A
LOCK-UP LETTER
AGREEMENT
LOCK-UP
LETTER AGREEMENT
Barclays
Capital Inc.
745
Seventh Avenue
New York,
New York 10019
Ladies
and Gentlemen:
The
undersigned understands that you (the “Underwriter”) propose to enter
into an Underwriting Agreement (the “Underwriting Agreement”)
providing for the purchase by you of shares (the “Stock”) of Common Stock, par
value $0.001 per share (the “Common Stock”), of ZIOPHARM
Oncology, 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 Underwriter,
and for other good and valuable consideration, the undersigned hereby
irrevocably agrees that, without the prior written consent of Barclays Capital
Inc., 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
Prospectus relating to the Offering (such 90-day period, the “Lock-Up Period”); provided,
that this paragraph shall not restrict after March 31, 2011 the sale of shares
of common stock by a member of the Company’s Board of Directors upon the vesting
of shares of restricted common stock outstanding as of the date of this Lock-Up
Letter Agreement as necessary to satisfy tax withholding obligations; provided
further, that such dispositions and sales shall not exceed 40% of the number of
shares of restricted common stock so vesting.
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 Barclays Capital Inc. waives such extension in writing, except that such
extension will not apply if, within three business days prior to the 15th
calendar day before the last day of the Lock-Up Period, the Company delivers a
certificate, signed by the Chief Financial Officer or Chief Executive Officer of
the Company, certifying on behalf of the Company that (A) the shares of Stock
are “actively traded securities” (as defined in Regulation M), (B) the Company
meets the applicable requirements of paragraph (a)(1) of Rule 139 under the
Securities Act of 1933, as amended (the “Securities Act”) in the manner
contemplated by NASD Conduct Rule 2711(f)(4), and (C) the provisions of NASD
Conduct Rule 2711(f)(4) are not applicable to any research reports relating to
the Company published or distributed by any of the Underwriters during the 15
days before or after the last day of the Lock-Up Period (before giving effect to
such extension). 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.
The
foregoing restrictions shall not apply to the transfer of any shares of Common
Stock owned by the undersigned, either during his or her lifetime or on death,
by gift, will or intestate succession to the immediate family of the undersigned or to
a trust the beneficiaries of which are exclusively the undersigned and/or a
member or members of his immediate family; provided that it shall be a condition
to any such transfer that (i) 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, (ii) no filing by any party (donor, donee,
transferor or transferee) under the Securities Exchange Act of 1934, as amended
(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), (iii) each party (donor, donee, transferor or transferee)
shall not be required by law (including without limitation the disclosure
requirements of the Securities Act and the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or
disposition, and (iv) the undersigned notifies Barclays Capital Inc. at least
two business days prior to the proposed transfer or disposition (except with
respect to any transfer or disposition of shares of Common Stock by the
undersigned as the result of the death of the undersigned).
In
furtherance of the foregoing, the Company and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Letter Agreement.
It is
understood that, if the Company notifies the Underwriter that it does
not intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or 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, the undersigned will be released from its
obligations under this Lock-Up Letter Agreement.
The
undersigned understands that the Company and the Underwriter 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 Underwriter.
[Signature
page follows]
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
|
|
Very
truly yours,
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
Dated:
_____________
|
|
|
EXHIBIT
B-1
FORM OF OPINION OF ISSUER’S
COUNSEL
EXHIBIT
B-2
FORM OF NEGATIVE ASSURANCE
LETTER OF ISSUER’S COUNSEL
EXHIBIT
C
FORM OF NEGATIVE ASSURANCE
LETTER OF ISSUER’S INTELLECTUAL PROPERTY COUNSEL
EXHIBIT
D
FORM OF OPINION OF ISSUER’S
INTELLECTUAL PROPERTY COUNSEL
Unassociated Document
Exhibit
5.1
February
4, 2011
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th Floor
New York,
NY 10036
RE:
|
ZIOPHARM
Oncology, Inc. Registration Statement on Form S-3 (File No.
333-166444)
|
Ladies
and Gentlemen:
We have
acted as counsel to ZIOPHARM Oncology, Inc., a Delaware corporation (the
“Company”), in connection with the proposed issuance by the Company of up to
11,040,000 shares (the “Shares”) of the Company’s common stock, $0.001 par value
per share (the “Common Stock”). The Shares are included in a registration
statement on Form S-3 (File No. 333-166444) (the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Act”), a base prospectus
dated May 10, 2010 filed with the Commission in the Registration Statement (the
“Base Prospectus”), a preliminary prospectus supplement dated February 2, 2011
filed with the Commission pursuant to Rule 424(b) under the Act (together with
the Base Prospectus, the “Preliminary Prospectus”) and a prospectus supplement
dated February 3, 2011 filed with the Commission pursuant to Rule 424(b) under
the Act (together with the Base Prospectus, the “Prospectus”). The
Shares are being sold pursuant to an underwriting agreement dated February 3,
2011 between the Company and Barclays Capital Inc. (the “Underwriting
Agreement”).
In
connection with this opinion, we have examined and relied upon the Registration
Statement and the Prospectus, including the exhibits thereto, the Underwriting
Agreement, the Articles of Incorporation and Bylaws of the Company, each as
amended to date, and such other documents, corporate records and instruments,
and have examined such laws and regulations, as we have deemed necessary for
purposes of rendering the opinions set forth herein. In rendering this opinion,
we have assumed the genuineness and authenticity of all signatures on original
documents; the genuineness and authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as
copies; the accuracy, completeness and authenticity of certificates of public
officials; and the due authorization, execution and delivery of all documents
where due authorization, execution and delivery are prerequisites to the
effectiveness of such documents. As to any facts material to the
opinions expressed herein which we have not independently established or
verified, we have relied upon statements and representations of officers and
other representatives of the Company and others.
Subject
to the foregoing and the other matters set forth herein, it is our opinion that,
as of the date hereof, when the Shares shall have been duly registered on the
books of the transfer agent and registrar therefor in the name or on behalf of
the purchasers, and have been issued by the Company against payment therefor
(not less than par value) in the circumstances contemplated by the Underwriting
Agreement, the issue and sale of the Shares will have been duly authorized by
all necessary corporate action of the Company, and the Shares will be validly
issued, fully paid and nonassessable.
This
opinion is being furnished in connection with the requirements of Item 601(b)(5)
of Regulation S-K promulgated under the Act, and no opinion is expressed herein
as to any matter pertaining to the contents of the Registration Statement, the
Preliminary Prospectus or the Prospectus, other than as expressly stated herein
with respect to the issue of Shares.
The
opinions expressed herein are limited to the federal laws of the United States
and the General Corporation Law of the State of Delaware. Our opinion is based
on these laws as in effect on the date hereof. We express no opinion as to
whether the laws of any particular jurisdiction are applicable to the subject
matter hereof.
This
opinion is for your benefit in connection with the Registration Statement and
may be relied upon only by you and by persons entitled to rely upon it pursuant
to the applicable provisions of the Act. We consent to your filing
this opinion as an exhibit to the Company’s Form 8-K dated February 4, 2011 and
to the reference to our firm in the Prospectus under the heading “Legal
Matters.” In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
|
|
|
|
|
Very
truly yours,
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Maslon
Edelman Borman & Brand, LLP |
|
|
|
|
|
Unassociated Document
Exhibit
99.1
ZIOPHARM
PRICES PUBLIC OFFERING OF COMMON STOCK
NEW YORK, NY – February 3,
2011 - ZIOPHARM Oncology, Inc. (NASDAQ: ZIOP) today announced the pricing
of an underwritten public offering of 9,600,000 shares of its common stock at a
price to the public of $5.75 per share. The public offering is expected to close
on or about February 8, 2011, subject to customary closing conditions. In
addition, ZIOPHARM Oncology has granted the underwriter a 30-day option to
purchase up to 1,440,000 additional shares of common stock to cover
overallotments.
Barclays
Capital Inc. is acting as sole book-running manager in this
offering.
The
securities described above are being offered by ZIOPHARM pursuant to a shelf
registration statement previously filed with and declared effective by the
Securities and Exchange Commission (the “SEC”) on May 13, 2010. Copies of the
prospectus supplement and related prospectus, when available, may be obtained
from Barclays Capital Inc., c/o Broadridge Financial Solutions, 1155 Long Island
Avenue, Edgewood, New York 11717; Barclaysprospectus@broadridge.com (phone:
888-603-5847).
This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of, the shares in any state or other
jurisdiction which such offer, solicitation or sale would be unlawful prior to
the registration or qualification under the securities laws of any such state or
other jurisdiction.
About
ZIOPHARM Oncology, Inc.
ZIOPHARM
Oncology is a biopharmaceutical company engaged in the development and
commercialization of a diverse portfolio of cancer therapeutics. The Company is
currently focused on several clinical programs. Palifosfamide (ZymafosTM or
ZIO-201) references a novel composition (tris formulation) that is the
functional active metabolite of ifosfamide, a standard of care for treating
sarcoma and other cancers. Darinaparsin (ZinaparTM or
ZIO-101) is a novel organic arsenic being developed for the treatment of various
hematologic and solid cancers. Indibulin (ZybulinTM or
ZIO-301) is a novel, oral tubulin binding agent that targets both mitosis and
cancer cell migration. ZIOPHARM is also pursuing the development of novel
DNA-based biotherapeutics in the field of cancer pursuant to a partnering
arrangement with Intrexon Corporation. The partnership includes a clinical-stage
product candidate in a Phase Ib study and a second product candidate that is the
basis of an Investigational New Drug application that ZIOPHARM expects to submit
during the first half of 2011.
ZIOPHARM’s
operations are located in Boston, MA with an executive office in New
York.
Forward-Looking
Safe Harbor Statement
This
press release contains forward-looking statements, including statements related
to ZIOPHARM Oncology's public offering of common stock and the completion of the
offering that involve risks and uncertainties. These forward-looking statements
are based upon ZIOPHARM Oncology's current expectations. Actual results and the
timing of events could differ materially from those anticipated in such
forward-looking statements as a result of risks and uncertainties, which
include, without limitation, risks and uncertainties associated with market
conditions and the satisfaction of customary closing conditions related to the
proposed offering and other risks detailed in ZIOPHARM Oncology's filings with
the SEC. You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date of this press release. All
forward-looking statements are qualified in their entirety by this cautionary
statement, and ZIOPHARM Oncology undertakes no obligation to revise or update
any forward-looking statements to reflect events or circumstances after the date
of this press release.
# # #
Contact:
Tyler
Cook
ZIOPHARM
Oncology, Inc.
617-259-1982
tcook@ziopharm.com