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): July 8, 2015
ANTHERA PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Charter)
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| Delaware |
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001-34637 |
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20-1852016 |
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of Incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
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| 25801 Industrial Boulevard, Suite B, Hayward,
California |
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94545 |
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(Zip Code) |
Registrant’s telephone number, including area code: (510) 856-5600
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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.
Amendment to LPC Agreement
On
July 8, 2015, Anthera Pharmaceuticals, Inc. (“Anthera”) and Lincoln Park Capital Fund, LLC (“LPC”) amended the Purchase Agreement, dated as of March 12, 2015, by and between Anthera and LPC (the “LPC
Agreement”) to reduce the total amount of Anthera’s common shares available for purchase by LPC under the LPC Agreement from $10,000,000 to $6,000,000. The foregoing description of the LPC Agreement is qualified in its entirety by
reference to the LPC Agreement, a copy of which is filed as Exhibit 10.1 to Anthera’s Form 8-K filed on March 16, 2015.
Underwriting Agreement
On July 9,
2015, Anthera entered into an equity underwriting agreement (the “Underwriting Agreement”) with Citigroup Global Markets Inc. and Piper Jaffray & Co., as representatives of the several underwriters (the “Underwriters”)
named therein, pursuant to which Anthera agreed to issue and sell an aggregate of 3,333,334 shares of its common stock to the Underwriters. Under the terms of the Underwriting Agreement, Anthera granted the Underwriters a 30-day option to purchase
up to an additional 500,000 shares of its common stock, and on July 10, 2015 the Underwriters exercised this option. The aggregate of 3,833,334 shares in the offering (the “Offering”) were sold at a public offering price of $7.50 per
share, and were purchased by the Underwriters at a price of $7.05 per share. The aggregate net proceeds to Anthera from the Offering are expected to be approximately $26.8 million, after deducting the Underwriters’ commissions and discounts and
other estimated offering expenses payable by the Company.
The Offering was made pursuant to Anthera’s effective registration
statement on Form S-3 (Registration No. 333-187780), which was previously filed with the Securities and Exchange Commission (“SEC”) and became effective on April 18, 2013, and a related prospectus supplement filed with the
SEC.
The Offering is scheduled to close on or about July 14, 2015, subject to the satisfaction of customary closing
conditions. In the Underwriting Agreement, the Company agrees to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended, or to contribute to payments that the Underwriters may
be required to make because of such liabilities.
The foregoing description of the Underwriting Agreement is qualified in its entirety by
reference to the Underwriting Agreement, a copy of which is filed as Exhibit 1.1 to this Form 8-K and is incorporated herein by reference. A copy of the opinion of Goodwin Procter LLP relating to the validity of the shares issued in
the Offering is attached hereto as Exhibit 5.1.
Item 8.01 Other Events.
On July 8, 2015, Anthera issued a press release announcing that it had commenced the Offering. On July 9, 2015, the Company issued a
press release announcing that it had priced the Offering. Copies of these press releases are attached hereto as Exhibits 99.1 and 99.2, respectively.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following documents are filed as exhibits to this report:
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| 1.1 |
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Underwriting Agreement, dated as of July 9, 2015, among Anthera Pharmaceuticals, Inc. and the Underwriters named therein |
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| 5.1 |
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Opinion of Goodwin Procter LLP |
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Consent of Goodwin Procter LLP (contained in Exhibit 5.1) |
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| 99.1 |
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Press release dated July 8, 2015 |
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| 99.2 |
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Press release dated July 9, 2015 |
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SIGNATURES
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.
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| Date: July 13, 2015 |
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Anthera Pharmaceuticals, Inc. |
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By: |
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/s/ May Liu |
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May Liu |
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Senior Vice President of Finance and Administration |
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Exhibit 1.1
3,333,334 Shares
Anthera
Pharmaceuticals, Inc.
Common Stock
($0.001 Par Value)
EQUITY
UNDERWRITING AGREEMENT
July 9, 2015
Citigroup Global Markets Inc.
Piper Jaffray & Co.
As Representatives of the
Several Underwriters
c/o
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Piper
Jaffray & Co.
800 Nicollet Mall, Suite 1000
Minneapolis, Minnesota 55402
Ladies and
Gentlemen:
Anthera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), proposes to sell to the several
underwriters (the “Underwriters”) named in Schedule I hereto for whom you are acting as the representatives (the “Representatives”) an aggregate of 3,333,334 shares (the “Firm Shares”) of the
Company’s common stock, $0.001 par value (the “Common Stock”). The respective amounts of the Firm Shares to be so purchased by the several Underwriters are set forth opposite their names in Schedule I hereto. The Company also
proposes to sell at the Underwriters’ option an aggregate of up to 500,000 additional shares of the Company’s Common Stock (the “Option Shares”) as set forth below.
As the Representatives, you have advised the Company (a) that you are authorized to enter
into this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are willing, acting severally and not jointly, to purchase the numbers of Firm Shares set forth opposite their respective names in Schedule I, plus
their pro rata portion of the Option Shares set forth opposite their respective names in Schedule II if you elect to exercise the option in whole or in part for the accounts of the several Underwriters. The Firm Shares and the Option Shares (to the
extent the aforementioned option is exercised) are herein collectively called the “Shares.”
In consideration of the
mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows:
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY. |
The Company represents and warrants to each of the Underwriters as follows:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the “Securities
Act”), and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-187780), including a related Base Prospectus (as defined below), for
registration under the Securities Act of the offering and sale of the Shares. Such Registration Statement (as defined below), including any amendments thereto filed prior to the Applicable Time (as defined below), has become effective. The Company
may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Shares, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement relating to the Shares in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Securities Act and the rules
thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Applicable Time or, to the extent not completed at the Applicable
Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any preliminary prospectus supplement) as the Company has advised you, prior to the Applicable Time, will be included
or made therein. The Registration Statement, at the Applicable Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date (as defined below) of the Registration Statement was not earlier than the date three years
before the Applicable Time.
(b) On each Effective Date, the Registration Statement did, and when the Prospectus (as defined below) is
first filed in accordance with Rule 424(b) and on the applicable Closing Date (as defined herein), the Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the respective rules thereunder; on
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each Effective Date and at the Applicable Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the applicable Closing Date, the Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information contained in or omitted from the Preliminary Prospectus (as defined below) or the Prospectus (or any supplement thereto) in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through the Representatives, specifically for use therein, it being understood and agreed that the only such information is that described in Section 13 hereof.
(c) As of the Applicable Time and as of the applicable Closing Date, neither (i) the General Use Free Writing Prospectus(es) (as defined
below) issued at or prior to the Applicable Time, the Base Prospectus, the Preliminary Prospectus used most recently prior to the Applicable Time and the information included on Schedule III hereto, all considered together (collectively, the
“General Disclosure Package”), nor (ii) any individual Limited Use Free Writing Prospectus (as defined below), when considered together with the General Disclosure Package, included or will include any untrue statement of a
material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to information contained in or omitted from any Issuer Free Writing Prospectus (as defined below) or the General Disclosure Package, in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the Representatives, specifically for use therein, it being understood and agreed that the only such information is that described in Section 13 hereof. As used in this Agreement:
“Applicable Time” means 8:40 a.m. (New York time) on the date of this Agreement or such other time as agreed to by the
Company and the Representatives.
“Base Prospectus” shall mean the base prospectus referred to in Section 1(a) above
contained in the Registration Statement at the Applicable Time.
“Effective Date” shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement (as defined below) became or becomes effective.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule IV to this
Agreement.
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“Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act, relating to the Shares in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g) under the Securities Act.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Free Writing Prospectus.
“Preliminary Prospectus” shall mean any preliminary prospectus
supplement to the Base Prospectus referred to in Section 1(a) above which is used prior to the filing of the Prospectus, together with the Base Prospectus.
“Prospectus” shall mean the final prospectus supplement relating to the Shares that was first filed pursuant to
Rule 424(b) after the Applicable Time, together with the Base Prospectus.
“Registration Statement” shall mean the
registration statement referred to in Section 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the applicable Closing Date, shall also mean
such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Rule 462(b)
Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.
(d) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. Each of TRX Services, Ltd. and Anthera Pharmaceuticals, Ltd.
(the “Subsidiaries”) have been duly organized and is validly existing as a corporation in good standing under the laws of the United Kingdom and Ireland, respectively, with corporate power and authority to own or lease its
properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Subsidiaries are the only subsidiaries, direct or indirect, of the Company. The Company and the Subsidiaries are
duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification, except for such jurisdictions where the failure to so qualify would not (i) have a material adverse effect on the
earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries taken as a whole or (ii) prevent the consummation of the transactions contemplated
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hereby (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”). The
outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company free and clear of all liens, encumbrances and equities and claims; and no options,
warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in either Subsidiary are outstanding.
(e) The outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable;
the Shares have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive rights of stockholders exist with respect to any of the Shares or the issue and sale
thereof. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of
any shares of Common Stock. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company 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.
(f) The information set forth under the caption “Capitalization” in the Registration Statement and the Prospectus (and any similar
section or information contained in the General Disclosure Package) is true and correct. All of the Shares conform to the description thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. The form of
certificates for the Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation and to any requirements of the Company’s organizational documents. Subsequent to the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise specifically stated therein or in this Agreement, the Company has not: (i) issued any debt securities or incurred any liability or
obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
(g) The Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus
or the Prospectus relating to the proposed offering of the Shares, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted or, to the Company’s knowledge, threatened by the Commission. The
Registration Statement contains, and the Prospectus and any amendments or supplements thereto will contain, all statements which are required to be stated therein by, and will conform to, the requirements of the Securities Act and the rules and
regulations of the Commission (the “Rules and Regulations”).
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(h) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Shares or until any earlier date that the Company notified or notifies the Representatives pursuant to Section 4(c) hereof, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration Statement, the General Disclosure Package or the Prospectus. The foregoing does not apply to statements or omissions from any Issuer Free Writing Prospectus in
reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representatives, specifically for use therein.
(i) The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the offering and
sale of the Shares other than any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus (as defined below) and other materials, if any, permitted under the Securities Act and consistent with Section 4(b) hereof. The
Company will file with the Commission all Issuer Free Writing Prospectuses in the time required under Rule 433(d) under the Securities Act. The Company has satisfied or will satisfy the conditions in Rule 433 under the Securities Act to avoid a
requirement to file with the Commission any electronic road show.
(j) (i) At the time of filing the Registration Statement and
(ii) as of the date hereof (with such date being used as the determination date for purposes of this clause(ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act, without taking
into account any determination by the Commission pursuant to Rule 405 under the Securities Act that it is not necessary that the Company be considered an ineligible issuer), including, without limitation, for purposes of Rules 164 and 433 under the
Securities Act with respect to the offering of the Shares as contemplated by the Registration Statement.
(k) The financial statements of
the Company, together with related notes and schedules as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, present fairly the financial position and the results of operations and cash flows of the Company
and the Subsidiaries, at the indicated dates and for the indicated periods. Such financial statements and related schedules have been prepared in accordance with generally accepted principles of accounting (“GAAP”), consistently
applied throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary and selected financial and statistical data included in the
Registration Statement, the General Disclosure Package and the Prospectus presents fairly in all material respects the information shown therein and such data has been compiled on a basis consistent with the financial statements presented therein
and the books and records of the
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Company. All disclosures, if any, contained in the Registration Statement, the General Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term is
defined by the Rules and Regulations) comply with Regulation G of the Exchange Act, and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The Company and the Subsidiaries do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations or any “variable interest entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46R), not disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus. There are no financial statements (historical or pro forma) that are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus that are not
included as required.
(l) BDO USA, LLP, who have audited certain of the financial statements filed with the Commission as part of the
Registration Statement, the General Disclosure Package and the Prospectus, is an independent registered public accounting firm with respect to the Company and the Subsidiaries within the meaning of the Securities Act and the applicable Rules and
Regulations and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(m) Except as disclosed in
the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor either of the Subsidiaries is aware of (i) any material weakness in the Company’s internal control over financial reporting or
(ii) change in internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(n) 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 in all material respects with any provision of the Sarbanes-Oxley Act of 2002, as amended, including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(o) There is no action, suit, claim or proceeding pending or, to the knowledge of the Company, threatened against the Company or the
Subsidiaries before any court or administrative agency or otherwise, domestic or foreign, which if determined adversely to the Company or the Subsidiaries would have a Material Adverse Effect, except as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus.
(p) The Company and the Subsidiaries have good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove described or described in the Registration Statement, the General Disclosure Package and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except those reflected in such financial statements or described in the Registration Statement, the General Disclosure Package and the Prospectus or which are not material in amount. The Company and the Subsidiaries occupy their leased properties
under valid and binding leases conforming in all material respects to the description thereof set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
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(q) The Company and the Subsidiaries have filed all Federal, State, local and foreign tax returns
which have been required to be filed and have paid all taxes indicated by such returns and all assessments received by them or any of them to the extent that such taxes have become due and are not being contested in good faith and for which an
adequate reserve for accrual has been established in accordance with GAAP, except as would not have a Material Adverse Effect. All material tax liabilities have been adequately provided for in the financial statements of the Company, and the Company
does not know of any actual or proposed additional material tax assessments.
(r) Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus, as each may be amended or supplemented, (i) there has not been a Material Adverse Effect, whether or not occurring in the ordinary course of business, and
(ii) there has not been any material transaction entered into or any material transaction that is probable of being entered into by the Company or the Subsidiaries, other than transactions in the ordinary course of business and changes and
transactions described in the Registration Statement, the General Disclosure Package and the Prospectus, as each may be amended or supplemented. The Company and the Subsidiaries have no material contingent obligations which are required to be
disclosed in the Company’s financial statements but are not so disclosed. Since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, there has not been
any change in the capital stock or long-term debt of the Company or the Subsidiaries otherwise than as set forth or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(s) Neither the Company nor either of the Subsidiaries is or with the giving of notice or lapse of time or both, will be, (i) in
violation of its certificate or articles of incorporation, by-laws or other organizational documents or (ii) in violation of or in default under any agreement, lease, contract, indenture or other instrument or obligation to which it is a party
or by which it, or any of its properties, is bound and, solely with respect to this clause (ii), which violation or default would have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof will not conflict with or result in a breach of (i) any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or the Subsidiaries is a party or by which the Company or the Subsidiaries or any of their respective properties is bound, except for such conflicts, breaches or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect, (ii) the certificate or articles of incorporation or by-laws of the Company or (iii) any law, order, rule or regulation judgment, order, writ or decree applicable to the Company or the
Subsidiaries of any court or of any government, regulatory body or administrative agency or other governmental body having jurisdiction, except for such conflicts or breaches that would not, individually or in the aggregate, have a Material Adverse
Effect.
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(t) The execution and delivery of, and the performance by the Company of its obligations under,
this Agreement has been duly and validly authorized by all necessary corporate action on the part of the Company, and this Agreement has been duly executed and delivered by the Company.
(u) Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions herein contemplated (except such additional steps as may be required by the Commission, the Financial
Industry Regulatory Authority, Inc. (“FINRA”) or such additional steps as may be necessary to qualify the Shares for public offering by the Underwriters under state securities or Blue Sky laws) has been obtained or made and is in
full force and effect.
(v) The Company and the Subsidiaries each own or possess the right to use all patents, patent rights, trademarks,
trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights
(“Intellectual Property”) necessary to carry on their business in all material respects; neither the Company nor either of the Subsidiaries has infringed, and neither the Company nor either of the Subsidiaries has received notice of
conflict with, any Intellectual Property of any other person or entity. The Company has taken all reasonable steps necessary to secure interests in such Intellectual Property from its contractors. There are no outstanding options, licenses or
agreements of any kind relating to the Intellectual Property of the Company that are required to be described in the Registration Statement, the General Disclosure Package and the Prospectus and are not described in all material respects. The
Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property of any other person or entity that are required to be set forth in the Prospectus and are not described in all material respects.
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 any of its officers, directors or employees or otherwise in violation of the rights
of any persons; the Company has not received any written or oral communications alleging that the Company has violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus, would violate, infringe or conflict with, any of the Intellectual Property of any other person or entity, except to the extent such violation, infringement or conflict would not, individually or in the aggregate, have a
Material Adverse Effect.
(w) Neither the Company, nor to the Company’s knowledge, any of its affiliates, has taken or may take,
directly or indirectly, any action designed to cause or result in, or which has
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constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares. The
Company acknowledges that the Underwriters may engage in passive market making transactions in the Shares on The Nasdaq Global Market in accordance with Regulation M under the Exchange Act.
(x) Neither the Company nor either of the Subsidiaries is or, after giving effect to the offering and sale of the Shares contemplated
hereunder and the application of the net proceeds from such sale as described in the Registration Statement, General Disclosure Package and the Prospectus, will be an “investment company” within the meaning of such term under the
Investment Company Act of 1940 as amended (the “1940 Act”), and the rules and regulations of the Commission thereunder.
(y) The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by the
Company’s most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the Company’s internal control over financial reporting
(as such term is defined in the Exchange Act) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(z) The Company maintains “disclosure controls and procedures” (as defined in Rules 13a-14(c) and 15d-14(c) under the Exchange Act);
the Company’s “disclosure controls and procedures” are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and regulations of the Exchange Act, and that all such information is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports.
(aa) The statistical, industry-related and market-related data included in the Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate, and such data agree with the sources from which they are derived.
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(bb) 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 and the money laundering statutes and 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 best knowledge of the Company, threatened.
(cc) 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 (i) is, or is controlled or 50% or more owned by or is acting on behalf of,
an individual or entity that is currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S.
Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury)
or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”), (ii) is located, organized or resident in a country or territory
that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) or (iii) will, directly or
indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by,
or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).
(dd) Except as has been disclosed to the Underwriters or is not material to the analysis under any Sanctions, neither the Company nor any of
its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Company or any of its subsidiaries have any plans to increase its
dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries.
(ee) The Company and the
Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company reasonably deems adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses and in similar industries.
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(ff) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, the Company and the Subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company and the Subsidiaries would have any
liability; the Company and the Subsidiaries have not incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each “pension plan” for which the Company or the Subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(gg) To the Company’s knowledge, there are no affiliations or associations between any member of FINRA and any of the Company’s
officers, directors or 5%-or-greater securityholders, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(hh) Neither the Company nor either of the Subsidiaries is in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the manufacture, processing, distribution, use, treatment, storage, transport, handling, disposal or release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”), owns or operates any real property contaminated with any substance that is subject to environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would, individually or in the aggregate, have a
Material Adverse Effect; and the Company is not aware of any pending investigation which could reasonably be expected to lead to such a claim.
(ii) The Shares have been approved for listing subject to notice of issuance on The Nasdaq Global Market.
(jj) There are no relationships or related-party transactions involving the Company or the Subsidiaries or any other person required to be
described in the Registration Statement, the General Disclosure Package and the Prospectus which have not been described as required.
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(kk) Neither the Company nor either of the Subsidiaries has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign office in violation of any law which violation is required to be disclosed in the Registration Statement, the General Disclosure Package and the Prospectus.
(ll) As of the date of the initial filing of the Registration Statement referred to in Section 1(a) above, there were no outstanding
personal loans made, directly or indirectly, by the Company to any director or executive officer of the Company.
(mm) The Subsidiaries
are not 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.
(nn) Neither the Company nor either of
the Subsidiaries nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or the Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, the Subsidiaries and their respective affiliates have conducted their
businesses in compliance in all material respects 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.
(oo) Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, and except for this Agreement,
there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection
with the public offer and sale of the Shares.
(pp) No material labor dispute with the employees of the Company or the Subsidiaries
exists, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that would be
reasonably likely to have a Material Adverse Effect.
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(qq) The Company has not sold or issued and will not sell or issue any securities that would be
integrated with the offering of the Shares pursuant to the Securities Act, the Rules and Regulations or the interpretations thereof by the Commission.
(rr) The Company and the Subsidiaries possesses such permits, certificates, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business of the Company as described in the Registration Statement, the
General Disclosure Package and the Prospectus, including without limitation, all such registrations, approvals, certificates, authorizations and permits required by the United States Food and Drug Administration (the “FDA”) and/or
other federal, state, local or foreign agencies or bodies engaged in the regulation of clinical trials, pharmaceuticals, or biohazardous substances or materials, except where the failure so to possess would not, singly or in the aggregate, have a
Material Adverse Effect; the Company is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, have a Material
Adverse Effect; and the Company has not received any written notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect. Where required by applicable laws and regulations of the FDA, the Company has submitted to the FDA an Investigational New Drug Application or amendment or supplement thereto for a clinical trial it has
conducted or sponsored or is conducting or sponsoring, except where such failure would not, singly or in the aggregate, have a Material Adverse Effect; all such submissions were in material compliance with applicable laws and rules and regulations
when submitted and no material deficiencies have been asserted by the FDA with respect to any such submissions, except any deficiencies which could not, singly or in the aggregate, have a Material Adverse Effect.
(ss) The Company has operated and currently is in compliance with the United States Federal Food, Drug, and Cosmetic Act, all applicable rules
and regulations of the FDA and other federal, state, local and foreign governmental bodies exercising comparable authority, except where the failure to so operate or be in compliance would not, individually or in the aggregate, have a Material
Adverse Effect. The preclinical and clinical studies conducted by or, to the Company’s knowledge, on behalf of the Company that are described in the Registration Statement, the General Disclosure Package and the Prospectus were, and, if still
pending, are being, conducted in all material respects in accordance with the protocols submitted to the FDA, and all applicable laws and regulations; the descriptions of the preclinical and clinical studies, and results thereof, conducted by or, to
the Company’s knowledge, on behalf of the Company contained in the Registration Statement, the General Disclosure Package and the Prospectus are accurate and complete in all material respects; the Company is not aware of any other trials or
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studies, the results of which reasonably call into question the results described or referred to in the Registration Statement, the General Disclosure Package and the Prospectus; the Company is
not in receipt of any written communications from the FDA or any foreign, state or local governmental body exercising comparable authority that reasonably call into question the results of the studies described or referred to in the Registration
Statement, the General Disclosure Package and the Prospectus; and the Company has not received any written notice or correspondence from the FDA or any foreign, state or local governmental body exercising comparable authority requiring the
termination, suspension, or clinical hold of any tests or preclinical or clinical studies, or such written notice or correspondence from any Institutional Review Board or comparable authority requiring the termination or suspension of a clinical
study, conducted by or on behalf of the Company, which termination, suspension, or clinical hold would reasonably be expected to have a Material Adverse Effect.
(tt) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that could result in a violation or a sanction for violation by such persons of the Foreign Corrupt Practices Act
of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder; and the Company and its subsidiaries have instituted and maintain policies and procedures to
ensure compliance therewith. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other
relevant jurisdiction, or the rules or regulations thereunder.
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2. |
PURCHASE, SALE AND DELIVERY OF THE SHARES. |
(a) On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of $7.05 per share, the number of Firm Shares set forth opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in Federal (same
day) funds to an account designated by the Company against delivery of certificates therefor to the Representatives for the several accounts of the Underwriters. Such payment and delivery are to be made through the facilities of The Depository Trust
Company, New York, New York at 10:00 a.m., New York time, on the third business day after the date of this Agreement or at such other time and date not later than five business days thereafter as you and the Company shall agree upon, such time and
date being herein referred to as the “First Closing Date.” (As used herein, “business day” means a day on which The Nasdaq Global Market is open for trading and on which banks in New York are open for business and
are not permitted by law or executive order to be closed.)
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(c) In addition, on the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase the Option Shares at the price per share as set forth in the first paragraph of this Section 2, less an amount per share
equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Option Shares. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before
the First Closing Date and (ii) at any time, and from time to time, thereafter within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company setting forth the number of Option Shares as
to which the several Underwriters are exercising the option and the time and date at which such certificates are to be delivered. The time and date at which certificates for Option Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the First Closing Date (any such time and date being herein referred to as an “Option
Closing Date,” which may be the First Closing Date). The First Closing Date and any Option Closing Date, if any, are sometimes herein referred to as a “Closing Date.” If the date of exercise of the option is three or more
days before the First Closing Date, the notice of exercise shall set the First Closing Date as an Option Closing Date. The number of Option Shares to be purchased by each Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such Underwriter bears to the total number of Firm Shares, adjusted by you in such manner as to avoid fractional shares. You, as Representatives of the several Underwriters, may
cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company. To the extent, if any, that the option is exercised, payment for the Option Shares shall be made on an Option Closing Date in
Federal (same day funds) through the facilities of The Depository Trust Company in New York, New York drawn to the order of the Company.
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3. |
OFFERING BY THE UNDERWRITERS. |
It is understood that the several Underwriters are to make a public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public at the initial public offering price set forth in the Prospectus. The Representatives may from time to time thereafter change the public offering price and other selling
terms.
It is further understood that you will act as the Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and the several other Underwriters.
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4. |
COVENANTS OF THE COMPANY. |
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Securities Act a Prospectus in a form
approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430B under the Securities Act and (B) not file any amendment to the Registration Statement
or any Rule 462(b) Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(b) The Company
will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be
filed by the Company with the Commission under Rule 433 under the Securities Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written
consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record
keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such
Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show.
(c) The Company will advise the Representatives promptly of (A) any proposal to amend or supplement the Registration Statement, any
Preliminary Prospectus, the General Disclosure Package or the Prospectus, and will not effect or distribute such amendment or supplement without the Representatives’ consent, which shall not be unreasonably withheld or delayed, (B) when
any Rule 462(b) Registration Statement shall have been filed with the Commission, (C) when any post-effective amendment to the Registration Statement shall have become effective, (D) any request of the Commission for amendment of the
Registration Statement, any Rule 462(b) Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, (E) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to
Section 8A of the Securities Act and (F) the receipt of any notice with respect to any suspension of qualification of the Shares for
17
offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such order and to
obtain as soon as possible the lifting thereof, if issued.
(d) The Company will cooperate with the Representatives in endeavoring to
qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably
required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The
Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution
of the Shares.
(e) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may
reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required under the
Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request.
(f) The Company will comply with the Securities Act and the Rules and Regulations, and the Exchange Act and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a)
under the Securities Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not,
in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the applicable law.
(g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the
18
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will
prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not,
in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law.
(h) The Company will make generally available to its security holders, as soon as it is practicable to do so, an earnings statement (which
need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
(i) Prior to the First Closing Date, the Company will furnish to the Underwriters,
as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the
Registration Statement, the General Disclosure Package and the Prospectus.
(j) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of the
Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representatives, except for the (i) Shares to be sold hereunder, (ii) shares of Common Stock issued by the Company upon
the exercise of an option, warrant or similar security or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, (iii) shares of Common Stock issued or options to purchase Common Stock granted to the
Company’s employees pursuant to existing employee benefit plans of the Company referred to in the Prospectus and (iv) shares of Common Stock sold pursuant to Section 2.2 of that certain Stock Purchase Agreement between the Company and
Zenyaku Kogyo Co., Ltd dated December 11, 2014.
(k) The Company will use its best efforts to list the Shares for quotation on The
Nasdaq Global Market.
(l) The Company has caused each officer and director of the Company set forth on Schedule V to furnish to you, on
or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”).
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(m) The Company shall apply the net proceeds of its sale of the Shares as set forth in the
Registration Statement, General Disclosure Package and the Prospectus.
(n) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Shares in such a manner as would require the Company or either Subsidiary to register as an investment company under the 1940 Act.
(o) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably
be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
The
Company will pay all costs, expenses and fees incident to the performance of the obligations of the Company under this Agreement, including, without limiting the generality of the foregoing, the following: accounting fees of the Company; the fees
and disbursements of counsel for the Company; any roadshow expenses; the cost of printing and delivering to, or as requested by, the Underwriters copies of the Registration Statement, Preliminary Prospectuses, the Issuer Free Writing Prospectuses,
the Prospectus, this Agreement, the Blue Sky Survey and any supplements or amendments thereto; the filing fees of the Commission; the filing fees and reasonable expenses (including reasonable legal fees and disbursements) incident to securing any
required review by FINRA of the terms of the sale of the Shares; costs and expenses incident to listing the Shares on The Nasdaq Global Market; the costs and expenses (including without limitation any damages or other amounts payable in connection
with legal or contractual liability) associated with the reforming of any contracts for sale of the Shares made by the Underwriters caused by a breach of the representation in Section 1(c) hereof; and the reasonable expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, incurred in connection with the qualification of the Shares under State securities or Blue Sky laws. The Company shall not, however, be required to pay for any of the
Underwriters’ expenses (other than those related to qualification under FINRA regulation and State securities or Blue Sky laws) except that, if this Agreement shall not be consummated because the conditions in Section 6 hereof are not
satisfied (unless such failure is due primarily to the default or omission of any Underwriter), or because this Agreement is terminated by the Representatives pursuant to Section 11 hereof, or by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure, refusal or inability is due primarily to the default or
omission of any Underwriter, the Company shall reimburse the several Underwriters for reasonable and documented out-of-pocket expenses, including reasonable fees and disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing their obligations hereunder; but the Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
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6. |
CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. |
The several obligations of the Underwriters to purchase the Firm Shares on the First Closing Date and the Option Shares, if any, on any Option
Closing Date are subject to the accuracy, as of the Applicable Time and the applicable Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, and each Issuer
Free Writing Prospectus required shall have been filed as required by Rules 424, 430B or 433 under the Securities Act, as applicable, within the time period prescribed by, and in compliance with, the Rules and Regulations, and any request of the
Commission for additional information (to be included in the Registration Statement or otherwise) shall have been disclosed to the Representatives and complied with to its reasonable satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been taken or, to the knowledge of the Company, shall be contemplated
or threatened by the Commission and no injunction, restraining order or order of any nature by a Federal or state court of competent jurisdiction shall have been issued as of the applicable Closing Date which would prevent the issuance of the
Shares.
(b) The Representatives shall have received on the applicable Closing Date the opinion of Goodwin Procter LLP, counsel for the
Company, dated such Closing Date, addressed to the Underwriters in form and substance satisfactory to counsel for the Underwriters to the effect substantially set forth in Exhibit B attached hereto.
(c) The Representatives shall have received on the applicable Closing Date the opinion of Perkins Coie LLP, special counsel for the Company
with respect to intellectual property matters, dated such Closing Date, addressed to the Underwriters in form and substance satisfactory to counsel for the Underwriters to the effect substantially set forth in Exhibit C attached
hereto.
(d) The Representatives shall have received from Cooley LLP, counsel for the Underwriters, an opinion dated as of the applicable
Closing Date with respect to such matters as you may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received, on each of the date hereof, the First Closing Date and, if applicable, any Option Closing Date, a
letter dated the date hereof and such
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Closing Date, as the case may be, in form and substance satisfactory to you, of BDO USA, LLP confirming that they are an independent registered public accounting firm with respect to the Company
and the Subsidiaries within the meaning of the Securities Act and the applicable Rules and Regulations and the PCAOB and stating that in their opinion the financial statements and schedules examined by them and included in the Registration
Statement, the General Disclosure Package and the Prospectus comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related Rules and Regulations, and containing such other statements and
information as is ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain financial and statistical information contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(f) The Representatives shall have received, on each of the date hereof, the First Closing Date
and, if applicable, any Option Closing Date, a letter dated the date hereof and such Closing Date, as the case may be, in form and substance satisfactory to you, of Deloitte & Touche LLP confirming that they are an independent registered
public accounting firm with respect to the Company and the Subsidiaries within the meaning of the Securities Act and the applicable Rules and Regulations and the PCAOB and stating that in their opinion the financial statements and schedules examined
by them and included in the Registration Statement, the General Disclosure Package and the Prospectus comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related Rules and Regulations,
and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain financial and statistical information contained in
the Registration Statement, the General Disclosure Package and the Prospectus.
(g) The Representatives shall have received on the
applicable Closing Date, a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of such Closing Date each of them severally represents as follows:
(i) The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement or no order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been issued, and no proceedings for such purpose or pursuant to Section 8A of the
Securities Act have been taken or are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) The representations
and warranties of the Company contained in Section 1 hereof are true and correct as of the applicable Closing Date;
(iii) All
filings required to have been made pursuant to Rules 424 and 430B under the Securities Act have been made as and when required by such rules;
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(iv) He has carefully examined the General Disclosure Package and any individual Limited Use
Free Writing Prospectus and, in his opinion, as of the Applicable Time, the statements contained in the General Disclosure Package and any individual Limited Use Free Writing Prospectus did not contain any untrue statement of a material fact, and
such General Disclosure Package and any individual Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, did not omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(v) He has carefully examined the Registration Statement and, in
his opinion, as of the Effective Date, the Registration Statement and any amendments thereto did not contain any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein not
misleading, and since the Effective Date, no event has occurred which should have been set forth in a supplement to or an amendment of the Prospectus which has not been so set forth in such supplement or amendment;
(vi) He has carefully examined the Prospectus and, in his opinion, as of its date and the applicable Closing Date, the Prospectus and any
amendments and supplements thereto did not contain any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; and
(vii) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure
Package and Prospectus, there has not been any Material Adverse Effect, whether or not arising in the ordinary course of business.
(h)
The Representatives shall have received on the applicable Closing Date, a certificate of the Secretary of the Company having attached thereto (A) the Company’s certificate of incorporation as in effect at the time of such Closing Date,
(B) the Company’s bylaws as in effect at the time of such Closing Date, (C) resolutions approved by the Company’s Board of Directors authorizing the offer, sale and issuance of the Shares and the transactions contemplated hereby
and (D) good standing certificates (including tax good standing) with respect to the Company from the applicable authorities in Delaware and any other jurisdiction in which the Company is qualified to do business.
(i) The Representatives shall have received on each of the date hereof and the applicable Closing Date, a certificate of the Company’s
Principal Financial Officer substantially in the form attached hereto as Exhibit D.
(j) The Company shall have furnished to
the Representatives such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Representatives may reasonably have requested.
23
(k) The Firm Shares and Option Shares, if any, have been approved for listing on The Nasdaq
Global Market.
(l) The Lockup Agreements described in Section 4(l) hereof shall have been delivered to the Representatives.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Representatives and to Cooley LLP, counsel for the Underwriters.
If any of the conditions
hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by the Representatives by notifying the Company of
such termination in writing or by telegram at or prior to the applicable Closing Date.
In such event, the Company and the Underwriters
shall not be under any obligation to each other (except to the extent provided in Sections 5 and 8 hereof).
| |
7. |
CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. |
The obligations of the Company to sell and deliver the portion of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the applicable Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and in effect or proceedings therefor initiated or threatened.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which such Underwriter or any such
controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto,
(ii) with respect to the Registration
24
Statement or any amendment or supplement thereto, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not
misleading, or (iii) with respect to any Preliminary Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or through the
Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 13 hereof; and
(2) to reimburse each Underwriter, each Underwriter’s directors, officers, employees and agents, and each such controlling
person upon demand for any legal or other out-of-pocket expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry related to the offering of the Shares, whether or not such Underwriter or controlling person is a party to any action or proceeding. In the event that it is finally judicially determined that the
Underwriters were not entitled to receive payments for legal and other expenses pursuant to this subparagraph, the Underwriters will promptly return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus, or
any amendment or supplement thereto, (ii) with respect to the Registration Statement, the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not
misleading or (iii) with respect to any Preliminary Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, the omission or alleged omission to state
25
therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and will
reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration
Statement, any Preliminary Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company
by or through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 13 hereof.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to this Section 8, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any party who shall fail to give notice as provided in this Section 8(c) if the party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of the provisions of Section 8(a) or (b). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the reasonable fees and expenses of the counsel retained by the indemnified party in the event (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party shall have failed to assume the defense and employ counsel acceptable to the indemnified party within a reasonable period of time after
notice of commencement of the action. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate
firm for all such indemnified parties. Such firm shall be designated in writing by you in the case of parties indemnified pursuant to Section 8(a) and by the Company in the case of
26
parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, the indemnifying party will
not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual or potential party to such claim, action or proceeding) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action
or proceeding, and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or (b) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
27
liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(d) shall be deemed to include 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 subsection (d), (i) no Underwriter shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Shares purchased by such Underwriter and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 8(d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the General Disclosure Package, any Issuer Free
Writing Prospectus or the Prospectus, or any supplement or amendment thereto, each party against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served upon it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join it as an additional defendant in
any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 8 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter, its directors, officers, employees and agents or any person controlling any Underwriter, the Company, its directors or officers or any persons controlling the Company, (ii) delivery and acceptance of any Shares and
payment therefor hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter, its directors or officers or any person controlling any Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 8.
(g) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act; and the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act.
28
| |
9. |
DEFAULT BY UNDERWRITERS. |
If
on the applicable Closing Date, any Underwriter shall fail to purchase and pay for the portion of the Shares which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company),
you, as Representatives of the Underwriters, shall use your reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the
terms set forth herein, the Shares which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours you, as such Representatives, shall not have procured such other Underwriters, or any others, to purchase the Shares
agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the Shares to be purchased on the applicable Closing Date,
the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Shares which they are obligated to purchase hereunder, to purchase the Shares which such defaulting Underwriter or Underwriters failed to purchase, or
(b) if the aggregate number of Shares with respect to which such default shall occur exceeds 10% of the Shares to be purchased on the applicable Closing Date, the Company or you, as the Representatives of the Underwriters, will have the right,
by written notice given within the next 36-hour period to the parties to this Agreement, to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 5 and 8
hereof. In the event of a default by any Underwriter or Underwriters, as set forth in this Section 9, the applicable Closing Date may be postponed for such period, not exceeding seven days, as you, as Representatives, may determine in order
that the required changes in the Registration Statement, the General Disclosure Package or in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the Underwriters, to (i) Citigroup Global Markets Inc. General Counsel (fax no.:
(646) 291-1469) and confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention: General Counsel; or (ii) Piper
Jaffray & Co. Chief Counsel of Investment Banking and Capital Markets (fax no.: (612) 303-1068) and confirmed to the Chief Counsel of Investment Banking and Capital Markets, Piper Jaffray & Co., at 800 Nicollet Mall, Suite
1000, Minneapolis, Minnesota 55402; if to the Company, to 25801 Industrial Blvd, Suite B, Hayward, California 94545, Attention: Paul Truex, with a copy to Goodwin Procter LLP, Three Embarcadero Center,
24th Floor, San Francisco, California 94111, Attention: Bradley A. Bugdanowitz, Esq.
29
This Agreement may be terminated by you, as
Representatives, by notice to the Company (a) at any time prior to the First Closing Date or, if applicable, any Option Closing Date (if different from the First Closing Date and then only as to Option Shares), if any of the following has
occurred: (i) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect (in the judgment of the Representatives), whether or not
arising in the ordinary course of business, (ii) any outbreak or escalation of hostilities or declaration of war or national emergency or other national or international calamity or crisis (including, without limitation, an act of terrorism) or
change in economic or political conditions if the effect of such outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial markets of the United States would, in your judgment, make it impractical or inadvisable to
market the Shares or to enforce contracts for the sale of the Shares, (iii) suspension of trading in securities generally on the New York Stock Exchange, the NYSE Amex or The Nasdaq Global Market or limitation on prices (other than limitations
on hours or numbers of days of trading) for securities on such trading market, (iv) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in your
opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company, (v) the declaration of a banking moratorium by United States or New York State authorities, (vi) any downgrading, or
placement on any watch list for possible downgrading, in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Exchange
Act); (vii) the suspension of trading of the Company’s common stock by The Nasdaq Global Market, the Commission, or any other governmental authority, or (viii) the taking of any action by any governmental body or agency in respect of
its monetary or fiscal affairs which in your opinion has a material adverse effect on the securities markets in the United States; or
(b)
as provided in Sections 6 and 9 of this Agreement.
This Agreement has been and is made solely
for the benefit of the Underwriters and the Company and their respective successors, executors, administrators, heirs and assigns, and the officers, directors and controlling persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign merely because of such purchase.
| |
13. |
INFORMATION PROVIDED BY UNDERWRITERS. |
The Company and the Underwriters acknowledge and agree that the only
30
information furnished or to be furnished by any Underwriter to the Company for inclusion in the Registration Statement, any Preliminary Prospectus, the General Disclosure Package, any Issuer Free
Writing Prospectus or the Prospectus consists of the information set forth in the third, ninth, tenth and eleventh paragraphs under the caption “Underwriting” in the Prospectus.
The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations, warranties and covenants in this Agreement shall remain in full force and effect regardless of (a) any termination of this Agreement, (b) any investigation made
by or on behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its directors or officers and (c) delivery of and payment for the Shares under this Agreement.
The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length
commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and
(c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that
the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
New York, including, without limitation, Section 5-1401 of the New York General Obligations Law.
The Underwriters, on the one hand,
and the Company (on its own behalf and, to the extent permitted by law, on behalf of its stockholders), on the other hand, waive any right to trial by jury in any action, claim, suit or proceeding with respect to your engagement as underwriter or
your role in connection herewith.
[signature page follows]
31
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the Company and the several Underwriters in accordance with its terms.
|
|
|
| Very truly yours, |
|
| ANTHERA PHARMACEUTICALS, INC. |
|
|
| By |
|
/s/ Paul F. Treux |
| Name: |
|
Paul F. Treux |
| Title: |
|
President and Chief Executive Officer |
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above
written.
|
|
|
| CITIGROUP GLOBAL MARKETS INC. |
|
|
| By: |
|
Citigroup Global Markets Inc. |
|
|
| By |
|
/s/ Jennifer
Jarrett |
| Name: |
|
Jennifer Jarrett |
| Title: |
|
Managing Director |
|
| PIPER JAFFRAY & CO. |
|
|
| By: |
|
Piper Jaffray & Co. |
|
|
| By |
|
/s/ David W.
Standinski |
| Name: |
|
David W. Standinski |
| Title: |
|
Managing Director |
For themselves and the other
several Underwriters
named in Schedule I to the
foregoing Agreement.
SCHEDULE I
SCHEDULE OF UNDERWRITERS
|
|
|
|
|
| Underwriter |
|
Number of Firm Shares
to be Purchased |
|
| Citigroup Global Markets Inc. |
|
|
1,566,667 |
|
| Piper Jaffray & Co. |
|
|
1,233,334 |
|
| SunTrust Robinson Humphrey, Inc. |
|
|
533,333 |
|
| Total |
|
|
3,333,334 |
|
S-I
SCHEDULE II
SCHEDULE OF OPTION SHARES
|
|
|
|
|
|
|
|
|
| Name of Seller |
|
Maximum Number
of Option Shares
to be Sold |
|
|
Percentage of
Total Number of
Option Shares |
|
| Citigroup Global Markets Inc. |
|
|
235,000 |
|
|
|
47 |
% |
| Piper Jaffray & Co. |
|
|
185,000 |
|
|
|
37 |
% |
| SunTrust Robinson Humphrey, Inc. |
|
|
80,000 |
|
|
|
16 |
% |
| Total |
|
|
500,000 |
|
|
|
100 |
% |
S-II
SCHEDULE III
|
|
|
|
|
| Number of Firm Shares: |
|
|
|
3,333,334 shares |
| Number of Option Shares: |
|
|
|
500,000 shares |
| Public price per share: |
|
|
|
$7.50 per share |
| Gross spread: |
|
|
|
$0.45 per share |
S-III
SCHEDULE IV
None
S-IV
SCHEDULE V
|
| Paul F. Truex |
| Colin Hislop, M.D. |
| Debra Odink, Ph.D. Klara Dickinson
May Liu |
| Christopher S. Henney Philip T. Sager,
M.D. |
| Brian R. Mueller David E. Thompson
Sanford S. Zweifach Steven B. Engle |
S-V
EXHIBIT A
LOCK-UP AGREEMENT
July
, 2015
Citigroup Global Markets Inc.
Piper Jaffray & Co.
as Representatives
of the several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York,
New York 10013
c/o Piper Jaffray & Co.
800
Nicollet Mall, Suite 1000
Minneapolis, Minnesota 55402
| RE: |
Anthera Pharmaceuticals, Inc. |
Ladies and Gentlemen:
The undersigned understands that Citigroup Global Markets Inc. and Piper Jaffray & Co., as representatives (the
“Representatives”) of the several underwriters (the “Underwriters”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Anthera Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), providing for the public offering by the Underwriters, including the Representatives, of common stock, par value $0.001 (the “Common Stock”), of the Company (the “Public Offering”).
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned
agrees that, commencing on the date hereof and continuing until and including the date that is 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Lock-Up Period”), without the prior written
consent of the Representatives, the undersigned will not, directly or indirectly, offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock (including, without
limitation, shares of Common Stock of the Company which may be deemed to be beneficially owned by the undersigned on the date hereof in accordance
with the rules and regulations of the Securities and Exchange Commission, shares of Common Stock which may be issued upon exercise of a stock option or warrant and any other security convertible
into or exchangeable for Common Stock) or enter into any Hedging Transaction (as defined below) relating to the Common Stock (each of the foregoing referred to as a “Disposition”) during the Lock-Up Period. The foregoing restriction is
expressly intended to preclude the undersigned from engaging in any Hedging Transaction or other transaction which is designed to or reasonably expected to lead to or result in a Disposition during the Lock-Up Period even if the securities would be
disposed of by someone other than the undersigned. “Hedging Transaction” means any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect
to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock.
Notwithstanding the foregoing, the undersigned may transfer (a) shares of Common Stock acquired in open market transactions by the undersigned after the
completion of the Public Offering, (b) any or all of the shares of Common Stock or other Company securities if the transfer is by gift, will or intestacy, and (c) shares of Common Stock (i) as forfeitures of Common Stock to satisfy
tax withholding obligations of the undersigned in connection with the vesting or exercise of equity awards by the undersigned pursuant to the Company’s equity plans, (ii) pursuant to a net exercise or cashless exercise by the undersigned
of outstanding equity awards pursuant to the Company’s equity plans, provided that any Common Stock acquired upon the net exercise or cashless exercise of equity awards described in this clause (ii) above shall be subject to the
restrictions set forth in this Agreement or (iii) pursuant to the conversion or sale of, or an offer to purchase, all or substantially all of the outstanding Common Stock, whether pursuant to a merger, tender offer or otherwise, provided that
any shares received by the undersigned upon conversion would be subject to this Lock-Up Agreement, and in the event the merger, tender offer or other transaction is not completed, the shares will remain subject to the provisions of this Lock-Up
Agreement; provided, however, that in the case of a transfer pursuant to clause (b) above, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding the
securities subject to the provisions of this Lock-Up Agreement; provided, further, that in the case of a transfer pursuant to clauses (c)(i) or (c)(ii) above, no filing under Section 16(a) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with such transactions.
Furthermore,
notwithstanding anything herein to the contrary, the undersigned may enter into an agreement to allow brokerage sales of all or a portion of the undersigned’s shares of Common Stock pursuant to Rule 10b5-1 of the Exchange Act; provided,
however, that (i) no public announcement or disclosure of entry into such agreement is made or required to be made during the Lock-Up Period and (ii) any such brokerage sales may not occur prior to the expiration of the Lock-Up
Period.
The undersigned agrees that the Company may, and that the undersigned will, (i) with respect to any shares of Common Stock
or other Company securities for which the undersigned is the record holder, cause the transfer agent for the Company to note stop transfer instructions with respect to such securities on the transfer books and records of the Company and
(ii) with respect to
any shares of Common Stock or other Company securities for which the undersigned is the beneficial holder but not the record holder, cause the record holder of such securities to cause the
transfer agent for the Company to note stop transfer instructions with respect to such securities on the transfer books and records of the Company.
In addition, the undersigned hereby waives any and all notice requirements and rights with respect to registration of securities pursuant to
any agreement, understanding or otherwise setting forth the terms of any security of the Company held by the undersigned, including any registration rights agreement to which the undersigned and the Company may be party; provided that such
waiver shall apply only to the proposed Public Offering, and any other action taken by the Company in connection with the proposed Public Offering.
The undersigned hereby agrees that, to the extent that the terms of this Lock-Up Agreement conflict with or are in any way inconsistent with
any registration rights agreement to which the undersigned and the Company may be a party, this Lock-Up Agreement supersedes such registration rights agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement. All
authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
Notwithstanding anything herein to the contrary, if (i) the closing of the Public Offering has not occurred prior to
August 31, 2015, (ii) the Company notifies you in writing that it does not intend to proceed with the Public Offering or (iii) the Underwriting Agreement shall be terminated (other than the provisions that survive termination thereof)
prior to payment for and delivery of the Common Stock to be sold pursuant thereto, this agreement shall be of no further force or effect.
EXHIBIT B
OPINION OF GOODWIN PROCTER LLP PURSUANT TO
SECTION 6(B) OF THE UNDERWRITING AGREEMENT
EXHIBIT C
OPINION OF PERKINS COIE LLP PURSUANT TO
SECTION 6(C) OF THE UNDERWRITING AGREEMENT
EXHIBIT D
PFO CERTIFICATE
PRINCIPAL FINANCIAL OFFICER’S CERTIFICATE
Exhibit 5.1
July 13, 2015
Anthera
Pharmaceuticals, Inc.
25801 Industrial Boulevard, Suite B
Hayward, California 94545
| Re: |
Securities Registered under Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-187780) (as amended
or supplemented, the “Registration Statement”) filed on April 5, 2013 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”),
relating to the registration of the offer by Anthera Pharmaceuticals, Inc., a Delaware corporation (the “Company”) of up to $100,000,000 of any combination of securities of the types specified therein, that was declared effective by the
Commission on April 18, 2013. Reference is made to our opinion letter dated April 5, 2013 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus
supplement (the “Prospectus Supplement”) filed on July 13, 2015 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Company of up to 3,333,334
shares of the Company’s Common Stock, par value $0.001 per share (the “Shares”) covered by the Registration Statement. The Shares include an option granted to the underwriters of the offering to purchase 500,000 Shares. The Shares are
being sold to the several underwriters named in, and pursuant to, an underwriting agreement among the Company and such underwriters (the “Underwriting Agreement”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have
relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the
Delaware General Corporation Law).
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon
issuance and delivery against payment therefor in accordance with the terms of the Underwriting Agreement, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement
and to the references to our firm under the caption “Legal Matters” in the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Goodwin Procter LLP
GOODWIN PROCTER LLP
Exhibit 99.1
Anthera Pharmaceuticals Announces Proposed Public Offering of Common Stock
HAYWARD, Calif., July 8, 2015 /PRNewswire/ — Anthera Pharmaceuticals, Inc. (Nasdaq: ANTH) today announced that it intends
to offer and sell shares of its common stock in an underwritten public offering. The Company expects to grant the underwriters a 30-day option to purchase up to an additional 15% of the shares of common stock offered in the public
offering. The Company intends to use the net proceeds from the offering for clinical research and development and general corporate purposes. The offering is subject to market and other conditions, and there can be no assurance as to
whether or when the offering may be completed, or as to the actual size or terms of the offering.
Citigroup Global Markets Inc. and Piper
Jaffray & Co. are acting as joint book-running managers for the proposed offering.
The securities described above are being offered by the
Company pursuant to a shelf registration statement previously filed with, and declared effective by, the Securities and Exchange Commission (the “SEC”). A preliminary prospectus supplement and accompanying prospectus
relating to the offering will be filed with the SEC and will be available on the SEC’s website at http://www.sec.gov. Copies of the preliminary prospectus supplement and the accompanying prospectus relating
to this offering, when available, may be obtained from Citigroup Global Markets Inc., c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, or by telephone at 800-831-9146 or by email at prospectus@citi.com;
or Piper Jaffray & Co., Attention: Prospectus Department, 800 Nicollet Mall, J12S03, Minneapolis, MN 55402, or by telephone at 800-747-3924 or by email at prospectus@pjc.com.
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, these securities in any state
or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
About Anthera Pharmaceuticals
Anthera
Pharmaceuticals is a biopharmaceutical company focused on advancing the development and commercialization of innovative medicines that benefit patients with unmet medical needs.
Safe Harbor Statement
Any statements contained in
this press release that refer to future events or other non-historical matters, including statements that are preceded by, followed by, or that include such words as “estimate,” “intend,” “anticipate,”
“believe,” “plan,” “goal,” “expect,” “project,” or similar statements, are forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. These forward-looking statements include statements about Anthera’s expectations with respect to its public offering, including statements about its intended use of proceeds from the offering. Such statements are based on
Anthera’s expectations as of the date of this press release and are subject to certain risks and uncertainties that could cause actual results to differ materially, including but not limited to those set forth in Anthera’s public
filings with the SEC, including Anthera’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015. Anthera disclaims any intent or obligation to update any forward-looking statements, whether because of new
information, future events or otherwise, except as required by applicable law.
CONTACT: Dennis Lutz of Anthera Pharmaceuticals,
Inc., dlutz@anthera.com or 510.856.5598.
Exhibit 99.2
Anthera Pharmaceuticals Announces Pricing of Public Offering of Common Stock
HAYWARD, Calif., July 9, 2015 /PRNewswire/ — Anthera Pharmaceuticals, Inc. (Nasdaq: ANTH) today announced the pricing of an
underwritten public offering of 3,333,334 shares of its common stock, offered at a price of $7.50 per share. The Company estimates that the gross proceeds from the offering, before deducting underwriting discounts and commissions and other
estimated offering expenses payable by Anthera, will be approximately $25.0 million. The offering is expected to close on or about July 14, 2015, subject to customary closing conditions. In addition, Anthera has granted the underwriters a
30-day option to purchase up to an additional 500,000 shares of common stock. The Company intends to use the net proceeds from the offering for clinical research and development and general corporate purposes.
Citigroup Global Markets Inc. and Piper Jaffray & Co. are acting as joint book-running managers for the offering. SunTrust Robinson Humphrey, Inc. is
acting as co-manager.
The securities described above are being offered by the Company pursuant to a shelf registration statement previously filed with,
and declared effective by, the Securities and Exchange Commission (the “SEC”). A final prospectus supplement and accompanying prospectus relating to the offering will be filed with the SEC and will be available on
the SEC’s website at http://www.sec.gov. Copies of the final prospectus supplement and the accompanying prospectus relating to this offering, when available, may be obtained from Citigroup Global Markets Inc., c/o
Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, or by telephone at 800-831-9146 or by email at prospectus@citi.com; or Piper Jaffray & Co., Attention: Prospectus Department, 800 Nicollet Mall,
J12S03, Minneapolis, MN 55402, or by telephone at 800-747-3924 or by email at prospectus@pjc.com.
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, these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or
qualification under the securities laws of any such state or jurisdiction.
About Anthera Pharmaceuticals
Anthera Pharmaceuticals is a biopharmaceutical company focused on advancing the development and commercialization of innovative medicines that benefit
patients with unmet medical needs.
Safe Harbor Statement
Any statements contained in this press release that refer to future events or other non-historical matters, including statements that are preceded by,
followed by, or that include such words as “estimate,” “intend,” “anticipate,” “believe,” “plan,” “goal,” “expect,” “project,” or similar statements, are forward-looking
statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include statements about Anthera’s expectations with respect to its public offering, including
statements about its intended use of proceeds from the offering. Such statements are based on Anthera’s expectations as of the date of this press release and are subject to certain risks and uncertainties that could cause actual
results to differ materially, including but not limited to those set forth in Anthera’s public filings with the SEC, including Anthera’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015. Anthera disclaims
any intent or obligation to update any forward-looking statements, whether because of new information, future events or otherwise, except as required by applicable law.
CONTACT: Dennis Lutz of Anthera Pharmaceuticals, Inc., dlutz@anthera.com or 510.856.5598.
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