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): January 8, 2010
SYNTA
PHARMACEUTICALS CORP.
(Exact name of registrant as specified in its
charter)
Delaware
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001-33277
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04-3508648
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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45
Hartwell Avenue
Lexington,
MA 02421
(Address of principal executive offices and
zip code)
Registrants telephone number, including area code: (781) 274-8200
(Former name or former
address, if changed since last report.)
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))
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ITEM 1.01 Entry
into a Material Definitive Agreement.
On
January 8, 2010, Synta Pharmaceuticals Corp. (the Company) entered into
an underwriting agreement (the Underwriting Agreement) with Lazard Capital
Markets LLC, as sole book-running manager for the offering, and RBC Capital
Markets Corporation, as co-manager (the Underwriters), related to a public
offering (the Offering) of 5,555,556 shares of the Companys common stock,
par value $0.0001 per share (the Common Stock), at a public offering price of
$4.50 per share (the Offering Price).
Under the terms of the Underwriting Agreement, the Company has granted
the Underwriters an option, exercisable for 30 days, to purchase up to an
additional 833,333 shares of Common Stock to cover over-allotments, if any, at
the Offering Price. The Offering is expected to close on January 13, 2010,
subject to the satisfaction of customary closing conditions. The net proceeds
to the Company are expected to be approximately $23.1 million after deducting
the underwriting discounts and commissions and estimated expenses payable by the
Company that are associated with this Offering, assuming no exercise by the
Underwriters of their over-allotment option.
The Offering is being made
pursuant to a prospectus supplement dated January 8, 2010 and an
accompanying prospectus dated August 28, 2008, pursuant to the Companys
existing effective shelf registration statement on Form S-3 (File No. 333-152833),
which was filed with the Securities and Exchange Commission (the Commission)
on August 7, 2008 and declared effective by the Commission on August 28,
2008.
The Underwriting Agreement
contains customary representations, warranties, and agreements by the Company,
and customary conditions to closing, indemnification obligations of the Company
and the Underwriters, including for liabilities under the Securities Act of
1933, as amended, other obligations of the parties, and termination provisions.
A copy of the opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. relating to the legality of the issuance and
sale of the shares of Common Stock in the Offering is attached as Exhibit 5.1
hereto. A copy of the Underwriting Agreement is filed herewith as Exhibit 1.1
and is incorporated herein by reference. The foregoing description of the
Offering by the Company and the documentation related thereto does not purport
to be complete and is qualified in its entirety by reference to such Exhibits.
The Underwriting Agreement has been included to
provide investors and security holders with information regarding its terms. It
is not intended to provide any other factual information about the Company. The
representations, warranties and covenants contained in the Underwriting
Agreement were made only for purposes of such agreement and as of specific
dates, were solely for the benefit of the parties to such agreement, and may be
subject to limitations agreed upon by the contracting parties, including being
qualified by confidential disclosures exchanged between the parties in
connection with the execution of the Underwriting Agreement. The
representations and warranties may have been made for the purposes of
allocating contractual risk between the parties to the agreement instead of
establishing these matters as facts, and may be subject to standards of
materiality applicable to the contracting parties that differ from those
applicable to investors.
ITEM 8.01 Other Events.
On January 8, 2010, the
Company issued a press release announcing that it had priced the Offering. The
Companys press release is filed as Exhibit 99.1 to this Report and is
incorporated herein by reference.
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ITEM 9.01 Financial
Statements and Exhibits.
(d) Exhibits.
Exhibit
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Number
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Description
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1.1
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Underwriting
Agreement dated January 8, 2010 by and among Synta Pharmaceuticals
Corp., Lazard Capital Markets LLC, as sole book-running manager, and RBC
Capital Markets Corporation, as co-manager.
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5.1
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Opinion
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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23.1
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Consent
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in the
opinion filed as Exhibit 5.1).
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99.1
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Press
Release, dated January 8, 2010.
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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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SYNTA PHARMACEUTICALS CORP.
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Dated:
January 8, 2010
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/s/
Keith S. Ehrlich
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Keith
S. Ehrlich
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Vice
President, Finance and Administration
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Chief
Financial Officer
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EXHIBIT INDEX
Exhibit No.
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Description
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1.1
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Underwriting
Agreement dated January 8, 2010 by and among Synta Pharmaceuticals
Corp., Lazard Capital Markets LLC, as sole book-running manager, and RBC
Capital Markets Corporation, as co-manager.
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5.1
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Opinion
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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23.1
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Consent
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in the
opinion filed as Exhibit 5.1).
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99.1
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Press Release, dated January 8, 2010.
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Exhibit 1.1
5,555,556 Shares of Common
Stock
par value $0.0001
SYNTA PHARMACEUTICALS CORP.
UNDERWRITING AGREEMENT
January 8, 2010
LAZARD
CAPITAL MARKETS LLC
RBC CAPITAL MARKETS CORPORATION
c/o
Lazard Capital Markets LLC
30
Rockefeller Plaza
New
York, New York 10020
Dear
Sirs:
1. INTRODUCTION. Synta Pharmaceuticals Corp., a Delaware
corporation (the Company),
proposes to issue and sell to the several Underwriters (defined below),
pursuant to the terms and conditions of this Underwriting Agreement (this Agreement), up to an aggregate of
5,555,556 shares of common stock, $0.0001 par value per share (the Common Stock) of the Company (the Firm Shares). The Company hereby confirms that Lazard
Capital Markets LLC (LCM) and
RBC Capital Markets Corporation (RBC,
and together with LCM, the Underwriters)
acted as the Underwriters in accordance with the terms and conditions
hereof. LCM is acting as the
representative of the Underwriters and in such capacity is hereinafter referred
to as the Representative.
The Company also proposes to issue and sell to the
several Underwriters not more than an additional 833,333 shares of its Common
Stock (the Additional Shares) if
and to the extent that you, as Underwriters, shall have, severally and not jointly,
determined to exercise your right to purchase such shares of Common Stock
granted to the Underwriters below and in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the Shares.
The Underwriters may exercise their over-allotment
purchase right in whole or from time to time in part by giving written notice
not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number
of Additional Shares to be purchased by the Underwriters and the date on which
such shares are to be purchased. If any
Additional Shares are to be purchased, the number of Additional Shares to be
purchased by each Underwriter shall be the number of Additional Shares which
bears the same ratio to the aggregate number of Additional Shares being
purchased as the number of Firm Shares purchased by such Underwriter bears to
the aggregate number of Firm Shares purchased from the Company by the
Underwriters,
subject, however, to such
adjustments to eliminate any fractional Shares as the Representative in its
sole discretion shall make. Each
purchase date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm Shares nor
later than ten business days after the date of such notice. Additional Shares may be purchased hereby
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each
day, if any, that Additional Shares are to be purchased (an Option Closing Date).
2. DELIVERY AND PAYMENT.
On the basis of the
representations, warranties and agreements of the Company herein contained, and
subject to the terms and conditions set forth in this Agreement:
2.1 The Company agrees to issue and sell
and the Underwriters, severally and not jointly, agree to purchase from the
Company an aggregate of 5,555,556 Firm Shares at a purchase price of $4.23 per
share of Common Stock (the Purchase Price).
2.2 Payment of the Purchase Price for,
and delivery of, the Firm Shares shall be made at the time and date of closing
and delivery of the documents required to be delivered to the Underwriters
pursuant to Sections 4 and 6 hereof shall be at 10:00 A.M.,
New York time, on January 13, 2010 (the Closing
Date) at the office of Mintz Levin Cohn Ferris Glovksy &
Popeo P.C., One Financial Center, Boston, MA 02111 or at such other time and
date as the Representative and the Company determine pursuant to Rule 15c6-1(a) under
the Securities Exchange Act of 1934, as amended (the Exchange Act), the Company shall deliver
the Firm Shares, which shall be registered in the name or names and shall be in
such denominations as the Underwriters may request at least one (1) business
day before the Closing Date, to the Underwriters, which delivery shall be made
through the facilities of the Depository Trust Companys DWAC system.
2.3 Payment of the Purchase Price for,
and delivery of, any Additional Shares shall be made at the Option Closing Date
or at such other time and date as the Representative and the Company determine
pursuant to Rule 15c6-1(a) under the Exchange Act, the Company shall
deliver the Additional Shares, which shall be registered in the name or names
and shall be in such denominations as the Underwriters may request at least one
(1) business day before the Option Closing Date, to the Underwriters,
which delivery shall be made through the facilities of the Depository Trust
Companys DWAC system. The Option
Closing Date may be simultaneous with, but not earlier than, the Closing Date;
and in the event that such time and date are simultaneous with the Closing
Date, the term Closing Date shall refer to the time and date of delivery of
the Firm Shares and Additional Shares.
2.4 Prior to the earlier of (i) the
date on which this Agreement is terminated and (ii) either of the First
Closing Date or the Option Closing Date, the Company shall not, without the
prior written consent of the Representative, solicit or accept offers to
purchase shares of the Common Stock or securities convertible into Common Stock
(other than pursuant to the exercise of options or warrants to purchase shares
of Common
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Stock
that are outstanding at the date hereof) otherwise than through the
Underwriters in accordance herewith.
2.5 No Shares which the Company has
agreed to sell pursuant to this Agreement shall be deemed to have been
purchased and paid for, or sold by the Company, until such Shares shall have
been delivered to the Underwriters thereof against payment by each of the
Underwriters. If the Company shall default in its obligations to deliver any
Shares to the Underwriters, the Company shall indemnify and hold each
Underwriter harmless against any loss, claim, damage or expense arising from or
as a result of such default by the Company in accordance with the procedures
set forth in Section 7(c) herein.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company represents and warrants to, and
agrees with, the Underwriters that:
(a) The Company has prepared and filed in conformity with the
requirements of the Securities Act of 1933, as amended (the Securities Act), and published rules and
regulations thereunder (the Rules and
Regulations) adopted by the Securities and Exchange Commission (the
Commission) a shelf
Registration Statement (as hereinafter defined) on Form S-3 (File No. 333-152833),
which became effective as of August 28, 2008 (the Effective Date), including a base
prospectus relating to the Shares (the Base
Prospectus), and such amendments and supplements thereto as may
have been required to the date of this Agreement. The term Registration
Statement as used in this Agreement means the registration
statement (including all exhibits, financial schedules and all documents and
information deemed to be a part of the Registration Statement pursuant to Rule 430B
of the Rules and Regulations), as amended and/or supplemented to the date
of this Agreement, including the Base Prospectus. The Registration Statement is effective under
the Securities Act and no stop order preventing or suspending the effectiveness
of the Registration Statement or suspending or preventing the use of the
Prospectus has been issued by the Commission and no proceedings for that
purpose have been instituted or, to the Companys knowledge, are threatened by
the Commission. The Company, if required
by the Rules and Regulations of the Commission, will file the Prospectus
(as defined below), with the Commission pursuant to Rule 424(b) of
the Rules and Regulations. The term Prospectus
as used in this Agreement means the Prospectus, in the form in which it is to
be filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, or, if the Prospectus is not to be filed with the Commission
pursuant to Rule 424(b), the Prospectus in the form included as part of
the Registration Statement as of the Effective Date, except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by
the Company for use in connection with the offering and sale of the Shares
which differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of
the Rules and Regulations), the term Prospectus
shall refer to such revised prospectus or prospectus supplement, as the case
may be, from and after the time it is first provided to the Underwriters for
such use (or in the form first made available to the Underwriters by the
Company to meet requests of prospective purchasers pursuant to Rule 173
under the
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Securities Act) . Any preliminary prospectus
or prospectus subject to completion included in the Registration Statement or
filed with the Commission pursuant to Rule 424 of the Rules and
Regulations is hereafter called a Preliminary
Prospectus. Any reference
herein to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the Exchange Act), on or before the last to
occur of the Effective Date, the date of the Preliminary Prospectus, or the
date of the Prospectus, and any reference herein to the terms amend, amendment,
or supplement with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the
filing of any document under the Exchange Act after the Effective Date, the
date of such Preliminary Prospectus or the date of the Prospectus, as the case
may be, which is incorporated by reference and (ii) any such document so
filed. If the Company has filed an abbreviated registration statement to
register additional securities pursuant to Rule 462(b) under the Rules and
Regulations (the 462(b) Registration
Statement), then any reference herein to the Registration Statement
shall also be deemed to include such 462(b) Registration Statement.
(b) As of the Applicable Time (as defined below) and as of the
Closing Date and any Option Closing Date, neither (i) any General Use Free
Writing Prospectus (as defined below) issued at or prior to the Applicable
Time, and the Pricing Prospectus (as defined below) and the information
included on Schedule A hereto, all considered together (collectively,
the General Disclosure Package),
(ii) any individual Limited Use Free Writing Prospectus (as defined below),
nor (iii) the bona fide electronic road show (as defined in Rule 433(h)(5) of
the Rules and Regulations), if any, that has been made available without
restriction to any person, when considered together with the General Disclosure
Package, included or will include, any untrue statement of a material fact or
omitted or as of the Closing Date or any Option Closing Date 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, in reliance upon, and in conformity with,
written information furnished to the Company by the Representative by or on
behalf of the Underwriters specifically for inclusion therein, which
information the parties hereto agree is limited to the Underwriters
Information (as defined in Section 17). As used in this paragraph (b) and
elsewhere in this Agreement:
Applicable Time
means 8:00 A.M., New York time, on the date of this Agreement.
General Use Free Writing Prospectus
means any Issuer Free Writing Prospectus that is identified on Schedule A
to this Agreement.
Issuer Free Writing Prospectus
means any issuer free writing prospectus,
as defined in Rule 433 of the Rules and Regulations 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 Companys records pursuant to
Rule 433(g) of the Rules and Regulations.
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Limited Use Free Writing
Prospectuses means any Issuer Free Writing Prospectus that is
not a General Use Free Writing Prospectus.
Pricing Prospectus
means the Preliminary Prospectus, if any, and the Base Prospectus, each as
amended and supplemented immediately prior to the Applicable Time, including
any document incorporated by reference therein and any prospectus supplement
deemed to be a part thereof.
(c) No order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
relating to the Offering has been issued by the Commission, and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act has been
instituted or, to the Companys knowledge, threatened by the Commission, and
each Preliminary Prospectus (if any), at the time of filing thereof, conformed
in all material respects to the requirements of the Securities Act and the Rules and
Regulations, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from any Preliminary Prospectus, in reliance upon, and
in conformity with, written information furnished to the Company by the
Representative by or on behalf of the Underwriters specifically for inclusion
therein, which information the parties hereto agree is limited to the
Underwriters Information (as defined in Section 17).
(d) At the time the Registration Statement became effective,
at the date of this Agreement and at the Closing Date and any Option Closing
Date, the Registration Statement conformed and will conform in all material
respects to the requirements of the Securities Act and the Rules and
Regulations and 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 to make the statements therein not misleading; the Prospectus, at the
time the Prospectus was issued and at the Closing Date and any Option Closing
Date, conformed and will conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the foregoing
representations and warranties in this paragraph (d) shall not
apply to information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by the Representative by or on behalf of the
Underwriters specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriters Information (as defined in Section 17).
(e) Each Issuer Free Writing Prospectus, if any, 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 Representative as described in Section 4(e),
did not, does not and will not include any information that
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conflicted, conflicts or will conflict with
the information contained in the Registration Statement, Pricing Prospectus or
the Prospectus, including any document incorporated by reference therein and
any prospectus supplement deemed to be a part thereof that has not been
superseded or modified, or includes an untrue statement of a material fact or
omitted or would omit to state 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. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus in reliance
upon, and in conformity with, written information furnished to the Company by
the Representative by or on behalf of the Underwriters specifically for
inclusion therein, which information the parties hereto agree is limited to the
Underwriters Information (as defined in Section 17).
(f) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and none of such documents contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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 to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) The Company is not an ineligible issuer (as defined in Rule 405
under the Securities Act) as of the eligibility determination date for purposes
of Rules 164 and 433 under the Securities Act with respect to the
Offering. The Company has not, directly
or indirectly, distributed and will not distribute any offering material in
connection with the Offering other than any Preliminary Prospectus, the
Prospectus and other materials, if any, permitted under the Securities Act and
consistent with Section 4(b) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses (other than a road show, as described in Rule 433(d)(8) of
the Rules and Regulations), if any, in the time and manner required under Rules 163(b)(2) and
433(d) of the Rules and Regulations.
(h) The Company and each of its subsidiaries (as defined in Section 15)
have been duly organized and are validly existing as corporations or other
legal entities in good standing under the laws of their respective
jurisdictions of organization. The
Company and each of its subsidiaries are duly qualified to do business and are
in good standing as foreign corporations or other legal entities in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification and have all
power and authority (corporate or other) necessary to own or
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hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not (i) have, singly or
in the aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, assets, business or prospects of the Company
and its subsidiaries taken as a whole, or (ii) impair in any material
respect the ability of the Company to perform its obligations under this
Agreement or to consummate any transactions contemplated by the Agreement, the
General Disclosure Package or the Prospectus (any such effect as described in
clauses (i) or (ii), a Material Adverse
Effect). The Company owns or
controls, directly or indirectly, only the following corporations,
partnerships, limited liability partnerships, limited liability companies,
associations or other entities: Synta Securities Corp., a Massachusetts
securities corporation, and Synta Limited, a United Kingdom company.
(i) The Company has the full right, power and authority to
enter into this Agreement, and to perform and to discharge its obligations
hereunder and thereunder; and this Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid and binding obligation of
the Company enforceable in accordance with its terms, except as rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
(j) The Firm Shares and the Additional Shares to be issued
and sold by the Company to the Underwriters hereunder have been duly and
validly authorized and, when issued and delivered by the Company against
payment therefor as provided herein will conform to the description thereof
contained in the General Disclosure Package and the Prospectus. The issuance and sale of the Firm Shares and
the Additional Shares are not subject to any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase such Shares.
(k) The Company has an authorized capitalization as set forth
in the Pricing Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
nonassessable, have been issued in compliance with federal and state securities
laws, and conform to the description thereof contained in the General
Disclosure Package and the Prospectus.
As of September 30, 2009, there were 33,978,300 shares of Common
Stock issued and outstanding and no shares of Preferred Stock, par value $0.0001
of the Company issued and outstanding and 4,964,084 shares of Common Stock were
issuable upon the exercise of all options, warrants and convertible securities
outstanding as of such date. Since such date, the Company has not issued any
securities, other than Common Stock of the Company issued pursuant to the
exercise of stock options previously outstanding under the Companys stock
plans or the issuance of options or restricted Common Stock under the Companys
stock plans. All of the stock options, warrants
and other rights to purchase or exchange any securities for shares of the
Companys capital stock have been duly authorized and validly issued, and were
issued in compliance with US federal and state securities laws. None of the outstanding shares of Common
Stock was issued in violation of any
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preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding
shares of capital stock, options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or
any of its subsidiaries other than those described above or accurately
described in the General Disclosure Package.
The description of the Companys stock option, stock bonus and other
stock plans or arrangements, and the stock options or other rights granted
thereunder, as described in the General Disclosure Package and the Prospectus,
accurately and fairly present the information required to be shown with respect
to such plans, arrangements, stock options and rights.
(l) All the outstanding shares of capital stock or other
equity interests of each subsidiary of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and, except to the extent
set forth in the General Disclosure Package or the Prospectus, are owned by the
Company directly or indirectly through one or more wholly-owned subsidiaries,
free and clear of any claim, lien, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party.
(m) The execution, delivery and performance of this Agreement
by the Company, the issue and sale of the Firm Shares or any Additional Shares
by the Company and the consummation of the transactions contemplated hereby and
thereby will not (with or without notice or lapse of time or both) (i) conflict
with or result in a breach or violation of any of the terms or provisions of,
constitute a default or Debt Repayment Triggering Event (as defined below)
under, give rise to any right of termination or other right or the cancellation
or acceleration of any right or obligation or loss of a benefit under, or give
rise to the creation or imposition of any lien, encumbrance, security interest,
claim or charge upon any property or assets of the Company or any subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or
by-laws (or analogous governing instruments, as applicable) of the Company or
any of its subsidiaries or (iii) result in any violation of any law,
statute, rule, regulation, judgment, order or decree of any court or
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets,
except, in the case of clauses (i) and (iii) of this paragraph (m),
such as would not, singly or in the aggregate, be expected to have a Material
Adverse Effect. A Debt Repayment Triggering Event means any
event or condition that gives, or with the giving of notice or lapse of time
would give the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holders behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
(n) Except for the registration of the Common Stock under the
Securities Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state
or foreign securities laws, the
8
Financial Industry Regulatory Authority (FINRA) and the NASDAQ Global Market (the NASDAQ GM) in connection with the offering
and sale of the Shares by the Company, and the listing of the Shares on the
NASDAQ GM, no consent, approval, authorization or order of, or filing,
qualification or registration with, any court or governmental agency or body,
foreign or domestic, which has not been made, obtained or taken and is not in
full force and effect, is required for the execution, delivery and performance
of this Agreement by the Company, the offer or sale of the Shares or the
consummation of the transactions contemplated hereby or thereby.
(o) Ernst & Young, LLP, who have certified certain
financial statements and related schedules included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus, and have audited the Companys internal control over financial
reporting and managements assessment thereof, is an independent registered
public accounting firm as required by the Securities Act and the Rules and
Regulations and the Public Company Accounting Oversight Board (United States)
(the PCAOB). Except as pre-approved in accordance with the
requirements set forth in Section 10A of the Exchange Act, Ernst &
Young, LLP has not been engaged
by the Company to perform any prohibited activities (as defined in Section 10A
of the Exchange Act).
(p) The financial statements, together with the related notes
and schedules, included or incorporated by reference in the General Disclosure
Package, the Prospectus and in the Registration Statement fairly present the
financial position and the results of operations and changes in stockholders
equity and cash flows of the Company and its consolidated subsidiaries and
other consolidated entities at the respective dates or for the respective
periods therein specified. Such
statements and related notes and schedules have been prepared in accordance
with generally accepted accounting principles in the United States (GAAP) applied on a consistent basis
throughout the periods involved except as may be set forth in the related notes
included or incorporated by reference in the General Disclosure Package and
except that unaudited financial statements may not contain the footnotes
required by GAAP. The financial
statements, together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package and the Prospectus
comply in all material respects with the Securities Act, the Exchange Act, and
the Rules and Regulations and the rules and regulations under the
Exchange Act. No other financial
statements or supporting schedules or exhibits are required by the Securities
Act or the Rules and Regulations to be described, or included or
incorporated by reference in the Registration Statement, the General Disclosure
Package or the Prospectus. There is no
pro forma or as adjusted financial information which is required to be included
in the Registration Statement, the General Disclosure Package, or and the
Prospectus or a document incorporated by reference therein in accordance with
the Securities Act and the Rules and Regulations which has not been
included or incorporated as so required.
(q) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included
or incorporated by reference in the General Disclosure Package, any material
loss or interference with its business from fire,
9
explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
General Disclosure Package; and, since such date, there has not been any change
in the capital stock (other than the issuance of Common Stock pursuant to the
exercise of stock options under the Companys stock plans, and the issuance of
options and restricted Common Stock under the Companys stock plans) or
long-term debt of the Company or any of its subsidiaries or any material
adverse changes, or any development involving a prospective material adverse
change, in or affecting the business, assets, general affairs, management,
financial position, prospects, stockholders equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the General Disclosure Package.
(r) Except as set forth in the General Disclosure Package,
there is no legal or governmental action, suit, claim or proceeding pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the subject
which is required to be described in the Registration Statement, the General
Disclosure Package or the Prospectus or a document incorporated by reference
therein and is not described therein, or which, singly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could be
expected to have a Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby; and to the best of the Companys knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(s) Neither the Company nor any of its subsidiaries is in (i) violation
of its charter or by-laws (or analogous governing instrument, as applicable), (ii) default
in any respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which it is
a party or by which it is bound or to which any of its property or assets is
subject or (iii) violation in any respect of any law, ordinance,
governmental rule, regulation or court order, decree or judgment to which it or
its property or assets may be subject except, in the case of clauses (ii) and
(iii) of this paragraph (s), for any violations or defaults which would
not, singly or in the aggregate, have a Material Adverse Effect.
(t) The Company and each of its subsidiaries possesses all
licenses, certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate local, state, federal or foreign
regulatory agencies or bodies , including,
without limitation, the United States Food and Drug Administration (the FDA) and any agency of any foreign
government and any other foreign regulatory authority exercising authority
comparable to that of the FDA (including any non-governmental entity whose
approval or authorization is required under foreign law comparable to that
administered by the FDA), which are necessary or desirable for the
ownership of their respective properties or the conduct of their respective
businesses as described in the General Disclosure Package and the Prospectus
(collectively, the Governmental Permits),
except where any failures to possess or make the same would
10
not, singly or in the aggregate, have a
Material Adverse Effect. The Company and
its subsidiaries are in compliance with all such Governmental Permits; all such
Governmental Permits are valid and in full force and effect, except where the
validity or failure to be in full force and effect or the failure to be in
compliance would not, singly or in the aggregate, have a Material Adverse
Effect. All such Governmental Permits
are free and clear of any restriction or condition that are in addition to, or
materially different from those normally applicable to similar licenses,
certificates, authorizations and permits. Neither the Company nor any
subsidiary has received notification of any revocation or modification (or
proceedings related thereto) of any such Governmental Permit and the Company
has no reason to believe that any such Governmental Permit will not be renewed.
(u) Each Investigational New
Drug application (IND) submitted
by the Company to the FDA or similar application submitted by the Company to
foreign regulatory bodies, and related documents and information, has been
submitted and maintained in compliance in all material respects with applicable
statutes, rules and regulations administered or promulgated by the FDA or
similar foreign regulatory bodies, (2) the studies, tests and preclinical
and clinical trials conducted by or on behalf of the Company that are described
in the General Disclosure Package or the Prospectus were and, if still pending,
are being, conducted, to the best of the Companys knowledge, in all material
respects in accordance with experimental protocols, procedures and controls
pursuant to, where applicable, accepted professional and scientific standards
for products or product candidates comparable to those being developed by the
Company, and the drug substances used in the clinical trials have been
manufactured under current Good Manufacturing Practices, and (3) the
Company uses commercially reasonable efforts to review, from time to time, the
progress and results of the preclinical studies and clinical trials and, based
upon (i) the information provided to the Company by the third parties
conducting such preclinical studies and clinical trials that are described in
the General Disclosure Package and the Prospectus and the Companys review of
such information, and (ii) the Companys knowledge, the Company reasonably
believes that such descriptions of the results of such preclinical studies and
clinical trials are accurate and complete. The Company has not received any
notices or correspondence from the FDA or any foreign, state or local
governmental body exercising comparable authority requiring the termination,
suspension or material modification of any preclinical studies or clinical
trials conducted by or on behalf of the Company. No filing or submission to the
FDA or any similar foreign regulatory body, that is intended to be the basis for
any approval of the Companys product candidates, contains any material
omission or material false information.
(v) The Company has made
available to counsel to the Underwriters, FDA correspondence logs, and such
logs contain complete and accurate descriptions, in all material respects, of
all material correspondence between the Company on the one hand and the FDA on
the other hand, relating to the clinical trials of the Companys product
candidates under development being conducted under any Company-sponsored INDs.
11
(w) Neither the Company nor any of its subsidiaries is or,
after giving effect to the offering of the Shares and the application of the
proceeds thereof as described in the General Disclosure Package and the
Prospectus, will become an investment company within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder.
(x) Neither the Company, its subsidiaries nor, to the Companys
knowledge, any of the Companys or its subsidiaries officers, directors or
affiliates has taken or will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the
Company, or which caused or resulted in, or which could in the future
reasonably be expected to cause or result in, stabilization or manipulation of
the price of any security of the Company.
(y) The Company and each of its subsidiaries owns or possesses
the right to use all patents, trademarks, trademark registrations, service
marks, service mark registrations, trade names, copyrights, licenses,
inventions, software, databases, know-how, Internet domain names, trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures, and other intellectual property
(collectively, Intellectual Property)
necessary to carry on their respective businesses as currently conducted, and
as proposed to be conducted and described in the General Disclosure Package and
the Prospectus, and the Company is not
aware of any claim to the contrary or any challenge by any other person to the
rights of the Company and its subsidiaries with respect to the foregoing except
for those that could not have a Material
Adverse Effect. The Intellectual
Property licenses described in the General Disclosure Package and the
Prospectus are valid, binding upon, and enforceable by or against the parties
thereto in accordance with their terms.
The Company and each of its subsidiaries has complied with, and is not
in breach nor has received any asserted or threatened claim of breach of, any
Intellectual Property license, and the Company has no knowledge of any breach
or anticipated breach by any other person to any Intellectual Property
license. To the Companys knowledge and
belief, the Companys and each of its subsidiaries businesses as now conducted
and as proposed to be conducted do not and will not infringe or conflict with
any valid and enforceable patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other Intellectual Property or franchise
right of any person. No claim has been
made against the Company or any of its subsidiaries alleging the infringement
by the Company or any of its subsidiaries of any patent, trademark, service
mark, trade name, copyright, trade secret, license in or other intellectual
property right or franchise right of any person. The Company and each of its subsidiaries has
taken all reasonable steps to protect, maintain and safeguard its rights in all
Intellectual Property, including the execution of appropriate nondisclosure and
confidentiality agreements. The
consummation of the transactions contemplated by this Agreement will not result
in the loss or impairment of or payment of any additional amounts with respect
to, nor require the consent of any other person in respect of, the Companys or
any of its subsidiaries right to own, use, or hold for use any of the
Intellectual Property as owned, used or held for use in the conduct of the
businesses as currently conducted. The
Company and each of its subsidiaries has at all times complied with all
applicable laws relating to privacy, data protection, and the collection and
use of
12
personal information collected, used, or held
for use by the Company and any of its subsidiaries in the conduct of the
Companys and its subsidiaries businesses.
No claims have been asserted or, to the Companys knowledge, threatened
against the Company or any of its subsidiaries alleging a violation of any
persons privacy or personal information or data rights and the consummation of
the transactions contemplated hereby will not breach or otherwise cause any
violation of any law related to privacy, data protection, or the collection and
use of personal information collected, used, or held for use by the Company or
any of its subsidiaries in the conduct of the Companys or any of its
subsidiaries businesses. The Company
and each of its subsidiaries takes reasonable measures to ensure that such
information is protected against unauthorized access, use, modification, or
other misuse.
(z) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise
use, all items of real or personal property which are material to the business
of the Company and its subsidiaries taken as a whole, in each case free and
clear of all liens, encumbrances, security interests, claims and defects that
do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the General Disclosure Package and
the Prospectus, are in full force and effect, and neither the Company nor any
subsidiary has received any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any subsidiary
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(aa) No labor disturbance by the employees of the Company or any
of its subsidiaries exists or, to the best of the Companys knowledge, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries principal
suppliers, manufacturers, customers or contractors, that singly or in the
aggregate, might be expected to have a Material Adverse Effect. The Company is not aware that any key
employee or significant group of employees of the Company or any subsidiary
plans to terminate employment with the Company or any such subsidiary.
(bb) No prohibited transaction (as defined in Section 406
of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder (ERISA), or Section 4975 of the
Internal Revenue Code of 1986, as amended from time to time (the Code)) or accumulated funding deficiency
(as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the thirty (30)-day notice
requirement under Section 4043 of ERISA has been waived) has occurred or
could reasonably be expected to occur with respect to any employee benefit plan
of the Company or any of its subsidiaries which could, singly or in the
aggregate, have a
13
Material Adverse Effect. Each employee benefit plan of the Company or
any of its subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code. The Company and its subsidiaries
have not incurred and could not reasonably be expected to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from, any
pension plan (as defined in ERISA). Each
pension plan for which the Company or any of its subsidiaries would have any
liability that is intended to be qualified under Section 401(a) of
the Code is so qualified, and nothing has occurred, whether by action or by
failure to act, which could, singly or in the aggregate, cause the loss of such
qualification.
(cc) The Company and its subsidiaries are in compliance with all
foreign, federal, state and local rules, laws and regulations relating to the
use, treatment, storage and disposal of hazardous or toxic substances or waste
and protection of health and safety or the environment which are applicable to
their businesses (Environmental Laws),
except where the failure to comply would not, singly or in the aggregate, have
a Material Adverse Effect. There has
been no storage, generation, transportation, handling, treatment, disposal,
discharge, emission, or other release of any kind of toxic or other wastes or
other hazardous substances by, due to, or caused by the Company or any of its
subsidiaries (or, to the Companys knowledge, any other entity for whose acts
or omissions the Company or any of its subsidiaries is or may otherwise be
liable) upon any of the property now or previously owned or leased by the
Company or any of its subsidiaries, or upon any other property, in violation of
any law, statute, ordinance, rule, regulation, order, judgment, decree or permit
or which would, under any law, statute, ordinance, rule (including rule of
common law), regulation, order, judgment, decree or permit, give rise to any
liability, except for any violation or liability which would not, singly or in
the aggregate with all such violations and liabilities, have a Material Adverse
Effect; and there has been no disposal, discharge, emission or other release of
any kind onto such property or into the environment surrounding such property
of any toxic or other wastes or other hazardous substances with respect to
which the Company has knowledge, except for any such disposal, discharge,
emission, or other release of any kind which would not, singly or in the
aggregate with all such discharges and other releases, have a Material Adverse
Effect. In the ordinary course of
business, the Company and its subsidiaries conduct periodic reviews of the
effect of Environmental Laws on their businesses and assets, in the course of
which they identify and evaluate associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or
Governmental Permits issued thereunder, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such reviews, the Company and
its subsidiaries have reasonably concluded that such associated costs and
liabilities would not have, singly or in the aggregate, a Material Adverse
Effect.
(dd) The Company and its subsidiaries, each (i) has paid all
federal, state, local and foreign taxes, assessments, governmental or other
charges that are due and payable for which it is liable, including, without
limitation, all sales and use taxes and all taxes which the Company or any of
its subsidiaries is obligated to withhold from amounts owing to employees,
creditors and third parties, and (ii) does not have any tax deficiency
14
or claims outstanding or assessed or, to the
best of its knowledge, proposed against any of them, except those, in each of
the cases described in clauses (i) and (ii) of this paragraph (dd),
that would not, singly or in the aggregate, have a Material Adverse
Effect. The Company and its subsidiaries,
each has not engaged in any transaction which is a corporate tax shelter or
which could be characterized as such by the Internal Revenue Service or any
other taxing authority. The accruals and
reserves on the books and records of the Company and its subsidiaries in
respect of tax liabilities for any taxable period not yet finally determined
are adequate to meet any assessments and related liabilities for any such
period, and since December 31, 2008 the
Company and its subsidiaries each has not incurred any liability for taxes
other than in the ordinary course.
(ee) The Company and each of its subsidiaries carries, or is
covered by, insurance in such amounts and covering such risks as is 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 in similar industries. The
Company has no reason to believe that it or any subsidiary will not be able (i) to
renew its existing insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has been denied any
insurance coverage that they have sought or for which they have applied.
(ff) The Company and its subsidiaries each maintains a system
of internal accounting and other controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
managements general or specific authorizations; (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 managements 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. Except
as described in the General Disclosure Package, since the end of the Companys
most recent audited fiscal year, there has been (A) no material weakness
in the Companys internal control over financial reporting (whether or not
remediated) and (B) no change in the Companys internal control over
financial reporting that has materially affected, or is reasonably likely to
materially affect, the Companys internal control over financial reporting.
(gg) The minute books of the Company and each of its subsidiaries
that would be a significant subsidiary within the meaning of Rule 1-02(w) of
Regulation S-X under the Exchange Act (such a significant subsidiary of the
Company, a Significant Subsidiary)
have been made available to the Underwriters and counsel for the Underwriters,
and such books (i) contain a complete summary of all meetings and actions
of the board of directors (including each board committee) and stockholders of
the Company (or analogous governing bodies and interest holders, as
applicable), and each of its Significant Subsidiaries since the time of its
respective incorporation or organization
15
through the date of the latest meeting and
action, and (ii) accurately in all material respects reflect all
transactions referred to in such minutes.
(hh) There is no franchise, lease, contract, agreement or
document required by the Securities Act or by the Rules and Regulations to
be described in the General Disclosure Package and in the Prospectus or a
document incorporated by reference therein or to be filed as an exhibit to the
Registration Statement or a document incorporated by reference therein which is
not described or filed therein as required; and all descriptions of any such
franchises, leases, contracts, agreements or documents contained in the
Registration Statement or in a document incorporated by reference therein are
accurate and complete descriptions of such documents in all material respects. Other than as described in the General
Disclosure Package, no such franchise, lease, contract or agreement has been
suspended or terminated for convenience or default by the Company or any of its
subsidiaries or any of the other parties thereto, and neither the Company nor
any of its subsidiaries has received notice nor does the Company have any other
knowledge of any such pending or threatened suspension or termination, except
for such pending or threatened suspensions or terminations that would not,
singly or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(ii) No relationship, direct or indirect, exists between or
among the Company and any of its subsidiaries on the one hand, and the
directors, officers, stockholders (or analogous interest holders), customers or
suppliers of the Company or any of its subsidiaries or any of their affiliates
on the other hand, which is required to be described in the General Disclosure
Package and the Prospectus or a document incorporated by reference therein and
which is not so described.
(jj) No person or entity has the right to require registration
of shares of Common Stock or other securities of the Company or any of its
subsidiaries because of the filing or effectiveness of the Registration
Statement or otherwise, except for persons and entities who have expressly
waived such right in writing or who have been given timely and proper written
notice and have failed to exercise such right within the time or times required
under the terms and conditions of such right.
Except as described in the General Disclosure Package, there are no
persons with registration rights or similar rights to have any securities
registered or to include such securities with the Shares registered by the
Company or any of its subsidiaries under the Securities Act.
(kk) Neither the Company nor any of its subsidiaries owns any margin
securities as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the Federal
Reserve Board), and none of the proceeds of the sale of any of the
Shares will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Shares to be
considered a purpose credit within the meanings of Regulation T, U or X of
the Federal Reserve Board.
16
(ll) Neither the Company nor any of its subsidiaries is a party
to any contract, agreement or understanding with any person (other than the
Underwriters pursuant to this Agreement) that would give rise to a valid claim
against the Company or the Underwriters for a brokerage commission, finders
fee or like payment in connection with the offering and sale of any of the
Shares or any transaction contemplated by this Agreement, the Registration
Statement, the General Disclosure Package or the Prospectus.
(mm) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in
either the General Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(nn) The Company is subject to and in compliance in all material
respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. The Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and is
listed on the NASDAQ GM and the Company has taken no action designed to, or
reasonably likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from the
NASDAQ GM, nor has the Company received any notification that the Commission,
FINRA or the NASDAQ Stock Market LLC is currently contemplating terminating
such registration or listing. No
consent, approval, authorization or order of, or filing, notification or
registration with, the NASDAQ GM is required for the listing and trading of the
shares of Common Stock on the NASDAQ GM, except for (i) a Notification
Form: Listing of Additional Shares; and (ii) a Notification Form: Change
in the Number of Shares Outstanding.
(oo) The Company is in compliance in all material respects with
all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules and
regulations promulgated thereunder or implementing the provisions thereof (the Sarbanes-Oxley Act).
(pp) The Company is in compliance in all material respects with
all applicable corporate governance requirements set forth in the NASDAQ
Marketplace Rules that are then in effect.
(qq) The statistical and market related data included in the
Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources that the Company believes to be reliable and
accurate, and such data agree with the sources from which they are derived.
(rr) Neither the Company nor any subsidiary nor any of their
affiliates (within the meaning of FINRAs NASD Conduct Rule 2720(f)(1))
directly or indirectly controls, is controlled by, or is under common control
with, or is an associated person (within the meaning of Article I, Section 1(ee)
of the By-laws of FINRA) of, any member firm of FINRA.
17
(ss) As of the date of this Agreement, the Company has not been
notified by NASDAQ that approval of the stockholders of the Company under the rules and
regulations of NASDAQ (including Rule 5635 of the NASDAQ Marketplace
Rules) is required for the Company to issue and deliver to the Underwriters the
Shares.
(tt) The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering
statutes and applicable rules and regulations thereunder (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.
(uu) Neither the Company nor any of its subsidiaries nor, to the
Companys knowledge, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (OFAC); and the
Company will not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(vv) At the time the Registration Statement was filed or, if
later, the time of any deemed post-effective amendment for purposes of updating
the Registration Statement under section 10(a)(3) of the Securities Act,
the Company satisfied the requirements for the use of a registration statement
on Form S-3.
(ww) Any certificate signed by or on behalf of the Company and
delivered to the Representative or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the Underwriters
as to the matters covered thereby.
4. FURTHER
AGREEMENTS OF THE COMPANY. The
Company agrees with the Underwriters:
(a) Subject to the Rules and Regulations, to prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the Representative and file such
Rule 462(b) Registration Statement with the Commission on the date
hereof; to prepare the Prospectus in a form approved by the Representative
containing information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rules 430A, 430B and 430C of the Rules and
Regulations and to file such Prospectus pursuant to Rule 424(b) of
the Rules and Regulations not later than the second (2nd) business day following the execution and delivery
of this Agreement or, if applicable, such earlier time as may be required by Rule 430A
of the Rules and Regulations; to notify the Representative immediately of
the Companys intention to file or prepare any
18
supplement or amendment to the Registration
Statement or to the Prospectus in connection with this Offering and to make no
amendment or supplement to the Registration Statement, the General Disclosure
Package or to the Prospectus to which the Representative shall reasonably
object by notice to the Company after a reasonable period to review; to advise
the Representative, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed in connection with
the Offering or becomes effective or any supplement to the General Disclosure
Package or the Prospectus or any amended Prospectus has been filed and to
furnish the Representative copies thereof; to file promptly all material
required to be filed by the Company with the Commission pursuant to Rule 433(d) of
the Rules and Regulations; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of
the Rules and Regulations) is required in connection with the offering or
sale of the Shares; to advise the Representative, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement, the General Disclosure Package or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus or suspending any such
qualification, and promptly to use its best efforts to obtain the withdrawal of
such order.
(b) The Company represents and agrees that, it has not made,
and unless it obtains the prior consent of the Representative, it will not,
make any offer relating to the Shares that would constitute a free writing
prospectus as defined in Rule 405 of the Rules and Regulations
(each, a Permitted Free Writing Prospectus);
provided that the prior written
consent of the Representative hereto shall be deemed to have been given in
respect of the Issuer Free Writing Prospectus(es) included in Schedule A
hereto. The Company represents that it
has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, comply with the requirements
of Rules 164 and 433 of the Rules and Regulations applicable to any
Issuer Free Writing Prospectus, including the requirements relating to timely
filing with the Commission, legending and record keeping and will not take any
action that would result in the Underwriters or the Company being required to
file with the Commission pursuant to Rule 433(d) of the Rules and
Regulations a free writing prospectus prepared by or on behalf of such
Underwriter that such Underwriter otherwise would not have been required to
file thereunder.
(c) If at any time when a Prospectus relating to the Shares is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include any untrue
19
statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, or the
Registration Statement, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading, or if for any other reason it is
necessary at any time to amend or supplement any Registration Statement or the
Prospectus to comply with the Securities Act or the Exchange Act, the Company
will promptly notify the Representative, and upon the Representatives request,
the Company will promptly prepare and file with the Commission, at the Companys
expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or omission or
effects such compliance and will deliver to the Underwriters, without charge,
such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the Underwriters.
(d) 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 Representative, it
becomes necessary to amend or supplement the General Disclosure Package in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or to make the statements therein not
conflict with the information contained or incorporated by reference in the
Registration Statement then on file and not superseded or modified, 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 either (i) 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 or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the General
Disclosure Package so that the General Disclosure Package as so amended or
supplemented will not, in the light of the circumstances under which they were
made, be misleading or conflict with the Registration Statement then on file,
or so that the General Disclosure Package will comply with law.
(e) If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or will conflict with
the information contained in the Registration Statement, Pricing Prospectus or
Prospectus, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof and not superseded or
modified or included or would include an untrue statement of a material fact or
omitted or would omit to state 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, the Company has
promptly notified or will promptly notify the Representative so that any use of
the Issuer Free Writing Prospectus may cease until it is amended or
supplemented and has promptly amended or will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
20
The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus in reliance
upon, and in conformity with, written information furnished to the Company by
the Representative by or on behalf of the Underwriters specifically for
inclusion therein, which information the parties hereto agree is limited to the
Underwriters Information (as defined in Section 17).
(f) To the extent not available on the Commissions EDGAR
system or any successor system, to furnish promptly to the Underwriters and to
counsel for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and of each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
(g) To the extent not available on the Commissions EDGAR
system or any successor system, to deliver promptly to the Representative in
New York City such number of the following documents as the Representative
shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission
(in each case excluding exhibits), (ii) each Preliminary Prospectus (if
any), (iii) any Issuer Free Writing Prospectus, (iv) the Prospectus
(the delivery of the documents referred to in clauses (i), (ii), (iii) and
(iv) of this paragraph (g) to be made not later than 10:00 A.M.,
New York time, on the business day following the execution and delivery of this
Agreement), (v) conformed copies of any amendment to the Registration
Statement (excluding exhibits), (vi) any amendment or supplement to the
General Disclosure Package or the Prospectus (the delivery of the documents
referred to in clauses (v) and (vi) of this paragraph (g) to
be made not later than 10:00 A.M., New York City time, on the business day
following the date of such amendment or supplement) and (vii) any document
incorporated by reference in the General Disclosure Package or the Prospectus
(excluding exhibits thereto) (the delivery of the documents referred to in
clause (vi) of this paragraph (g) to be made not later than
10:00 A.M., New York City time, on the business day following the date of
such document).
(h) To make generally available to its stockholders as soon as
practicable, but in any event not later than eighteen (18) months after the
effective date of each Registration Statement (as defined in Rule 158(c) of
the Rules and Regulations), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158); and to furnish to its stockholders after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and
after each of the first three fiscal quarters of each fiscal year (beginning
with the first fiscal quarter after the effective date of such Registration
Statement), consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail.
(i) To take promptly from time to time such actions as the
Representative may reasonably request to qualify the Shares for offering and
sale under the securities or blue sky laws of such jurisdictions (domestic or
foreign) as the Representative may
21
designate and to continue such qualifications
in effect, and to comply with such laws, for so long as required to permit the
offer and sale of Shares in such jurisdictions; provided that the Company and its subsidiaries shall not be
obligated to qualify as foreign corporations in any jurisdiction in which they
are not so qualified or to file a general consent to service of process in any
jurisdiction.
(j) During the period of five (5) years from the date
hereof, to the extent not available on the Commissions EDGAR system or any
successor system, to deliver to the Underwriters, (i) upon request, copies
of all reports or other communications furnished generally to stockholders, and
(ii) upon request, copies of any reports and financial statements
furnished or filed with the Commission or any national securities exchange or automatic
quotation system on which the Common Stock is listed or quoted.
(k) That the Company will not, for a period of ninety (90)
days from the date of the Prospectus, (the Lock-Up
Period) without the prior written consent of LCM, directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or
otherwise dispose of, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, other than (i) the
Companys sale of the Shares hereunder, (ii) the issuance of Common Stock
(restricted or otherwise) or options to acquire Common Stock pursuant to the
Companys employee benefit plans, qualified stock option plans or other
employee compensation plans as such plans are in existence on the date hereof
and described in the Prospectus, (iii) the issuance of Common Stock
pursuant to the valid exercises of options, warrants or rights outstanding on
the date hereof and (iv) shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock issued
pursuant to strategic collaborations, licensing transactions, business, product
or technology acquisitions, or bank or equipment financings not to exceed 5% of
the Companys outstanding Common Stock.
The Company also agrees that during such period, the Company will not
file any registration statement, preliminary prospectus or prospectus, or any
amendment or supplement thereto, under the Securities Act for any such
transaction or which registers, or offers for sale, Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock,
except for a registration statement on Form S-8 relating to employee
benefit plans. The Company hereby agrees
that (i) if it issues an earnings release or material news, or if a
material event relating to the Company occurs, during the last seventeen (17)
days of the Lock-Up Period, or (ii) if prior to the expiration of the
Lock-Up Period, the Company announces that it will release earnings results
during the sixteen (16)-day period beginning on the last day of the Lock-Up
Period, the restrictions imposed by this paragraph (k) or the
letter shall continue to apply until the expiration of the eighteen (18)-day
period beginning on the issuance of the earnings release or the occurrence of
the material news or material event. The
Company will cause each executive officer and director listed in Schedule B to
furnish to the Representative, on or prior to the date hereof, a letter, substantially
in the form of Exhibit A hereto.
(l) To supply the Representative with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Shares under the Securities Act or
the Registration Statement, any
22
Preliminary Prospectus or the Prospectus, or
any amendment or supplement thereto or document incorporated by reference
therein.
(m) Prior to the Closing Date to furnish to the Representative,
as soon as they have been prepared, copies of any unaudited interim
consolidated financial statements of the Company for any periods subsequent to
the periods covered by the financial statements appearing in the Registration
Statement and the Prospectus.
(n) Prior to the Closing Date not to issue any press release
or other communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the past
practices of the Company and of which the Representative is notified), without
the prior written consent of the Representative, unless in the judgment of the
Company and its counsel, and after notification to the Representative, such
press release or communication is required by law or applicable stock exchange
rules.
(o) Until the Representative shall have notified the Company
of the completion of the offering of the Shares, that the Company will not, and
will cause its affiliated purchasers (as defined in Regulation M under the
Exchange Act) not to, either alone or with one or more other persons, bid for
or purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Shares, or attempt to induce any person to
purchase any Shares; and not to, and to cause its affiliated purchasers not to,
make bids or purchases for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Shares.
(p) Not to take any action prior to the Closing Date, which
would require the Prospectus to be amended or supplemented pursuant to Section 4.
(q) To at all times comply with all applicable provisions of
the Sarbanes-Oxley Act in effect from time to time.
(r) To apply the net proceeds from the sale of the Shares as
set forth in the Registration Statement, the General Disclosure Package and the
Prospectus under the heading Use of Proceeds.
(s) To use its best efforts to list, subject to notice of
issuance, effect and maintain the quotation and listing of the Common Stock on
the NASDAQ GM.
(t) To use its best efforts to assist the Representative with
any filings with FINRA and obtaining clearance from FINRA as to the amount of
compensation allowable or payable to the Underwriters.
(u) To use its best efforts to do and perform all things
required to be done or performed under this Agreement by the Company prior to
the Closing Date, and any
23
Option Closing Date, and to satisfy all
conditions precedent to the delivery of the Firm Shares and Additional Shares,
if any.
5. PAYMENT
OF EXPENSES. The Company
agrees to pay, or reimburse if paid by the Underwriters, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated: (a) the costs incident
to the authorization, issuance, sale, preparation and delivery of the Shares to
the Underwriters and any taxes payable in that connection; (b) the costs
incident to the registration of the Shares under the Securities Act; (c) the
costs incident to the preparation, printing and distribution of the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package, the Prospectus,
any amendments, supplements and exhibits thereto or any document incorporated
by reference therein and the costs of printing, reproducing and distributing
any transaction document by mail, telex or other means of communications; (d) the
fees and expenses (including reasonable related fees and expenses of counsel
for the Underwriters) incurred in connection with securing any required review
by FINRA of the terms of the sale of the Shares and any filings made with
FINRA; (e) any applicable listing, quotation or other fees; (f) the
reasonable fees and expenses (including related fees and expenses of counsel to
the Underwriters) of qualifying the Shares under the securities laws of the
several jurisdictions as provided in Section 4(i) and of
preparing, printing and distributing wrappers, Blue Sky Memoranda and Legal
Investment Surveys; (g) the cost of preparing and printing stock
certificates; (h) all fees and expenses of the registrar and transfer
agent of the Shares; (i) the reasonable fees, disbursements and expenses
of counsel to the Underwriters; not to exceed $75,000 (inclusive of the fees,
disbursements and expenses of counsel set forth in (d) and (f) above;
and (j) all other costs and expenses incident to the offering of the
Shares or the performance of the obligations of the Company under this
Agreement (including, without limitation, the fees and expenses of the Companys
counsel and the Companys independent accountants and the travel and other
reasonable and documented expenses incurred by Companys and Underwriters
personnel in connection with any road show including, without limitation, any
expenses advanced by the Underwriters on the Companys behalf (which will be
promptly reimbursed)).
6. CONDITIONS
TO THE OBLIGATIONS OF THE UNDERWRITERS, AND THE SALE OF THE SHARES. The obligations of the Underwriters
hereunder, and the closing of the sale of the Shares, are subject to the
accuracy, when made and as of the Applicable Time and on the Closing Date and
any Option Closing Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof, preventing or suspending the use of
any Base Prospectus, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus or any part thereof shall have been issued
and no proceedings for that purpose or pursuant to Section 8A under the
Securities Act shall have been initiated or threatened by the Commission, and
all requests for additional information on the part of the Commission (to be
included or incorporated by reference in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of
24
the Representative; the Rule 462(b) Registration
Statement, if any, each Issuer Free Writing Prospectus, if any, and the
Prospectus shall have been filed with the Commission within the applicable time
period prescribed for such filing by, and in compliance with, the Rules and
Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration
Statement, if any, shall have become effective immediately upon its filing with
the Commission; and FINRA shall have raised no objection to the fairness and
reasonableness of the terms of this Agreement or the transactions contemplated
hereby.
(b) The Representative shall not have discovered and disclosed
to the Company on or prior to the Closing Date and any Option Closing Date that
the Registration Statement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading, or that the General Disclosure
Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment
or supplement thereto contains an untrue statement of fact which, in the
opinion of such counsel, is material or omits to state any fact which, in the
opinion of such counsel, is material and is necessary in order to make the
statements, in the light of the circumstances in which they were made, not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of this Agreement, the Shares,
the Registration Statement, the General Disclosure Package, each Issuer Free
Writing Prospectus, if any, and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) Mintz Levin Cohn Ferris Glovksy & Popeo P.C. shall have furnished to the
Representative such counsels written opinion and negative assurances
statement, as counsel to the Company, addressed to the Underwriters and dated
the Closing Date and any Option Closing Date (if such date is other than the
Closing Date), in form and substance reasonably satisfactory to the
Representative.
(e) Foley & Lardner LLP, the Companys Intellectual
Property counsel shall have furnished to the Representative, such counsels
written opinion, with respect to intellectual property matters, addressed to
the Underwriters dated the Closing Date and any Option Closing Date (if such
date is other than the Closing Date), in form and substance reasonably
satisfactory to the Representative.
(f) The Underwriters shall have received from Proskauer Rose
LLP, counsel for the Underwriters, such opinion or opinions and negative
assurances statement, dated the Closing Date and any Option Closing Date (if
such date is other than the Closing Date), with respect to such matters as the
Representative may reasonably require, and the
25
Company shall have furnished to such counsel
such documents as they request for enabling them to pass upon such matters.
(g) (1) At the time of the execution of this Agreement,
the Representative shall have received from KPMG LLP a letter, addressed to the
Underwriters, executed and dated such date, in form and substance satisfactory
to the Representative (A) confirming that they are an independent
registered accounting firm with respect to the Company and its subsidiaries for
the periods included in the years ending 2006 and 2007 within the meaning of
the Securities Act and the Rules and Regulations and PCAOB and (B) stating
the conclusions and findings of such firm, of the type ordinarily included in
accountants comfort letters to underwriters, with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus.
(2) At the time of the execution of
this Agreement, the Representative shall have received from Ernst &
Young LLP a letter, addressed to the Underwriters, executed and dated such
date, in form and substance satisfactory to the Representative (i) confirming
that they are an independent registered accounting firm with respect to the
Company and its subsidiaries within the meaning of the Securities Act and the Rules and
Regulations and PCAOB and (ii) stating the conclusions and findings of
such firm, of the type ordinarily included in accountants comfort letters to
underwriters, with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus.
(h) On the effective date of any post-effective amendment to
any Registration Statement and on the Closing Date and any Option Closing Date
(if such date is other than the Closing Date), the Representative shall have
received a letter (the Bring-Down Letter)
from Ernst & Young LLP addressed
to the Underwriters and dated the Closing Date and any Option Closing Date (if
such date is other than the Closing Date) confirming, as of the date of the
Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the General Disclosure Package and the Prospectus, as
the case may be, as of a date not more than three (3) business days prior
to the date of the Bring-Down Letter), the conclusions and findings of such
firm, of the type ordinarily included in accountants comfort letters to
underwriters, with respect to the financial information and other matters
covered by its letter delivered to the Underwriter concurrently with the execution
of this Agreement pursuant to paragraph (g) of this Section 6.
(i) The Company shall have furnished to the Representative a
certificate, dated the Closing Date and any Option Closing Date (if such date
is other than the Closing Date), of its Chairman of the Board, Chief Executive
Officer or its President and its Chief Financial Officer or a Vice President of
Finance, each in his capacity as an officer of the Company, stating that (i) such
officers have carefully examined the Registration Statement, the General
Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus
and, in their opinion, the Registration Statement and each
26
amendment thereto, at the Applicable Time and
as of the date of this Agreement and as of the Closing Date and any Option
Closing Date (if such date is other than the Closing Date) did not include any
untrue statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the General Disclosure Package, as of the Applicable Time and
as of the Closing Date and any Option Closing Date (if such date is other than
the Closing Date), any Permitted Free Writing Prospectus as of its date and as
of the Closing Date, the Prospectus and each amendment or supplement thereto,
as of the respective date thereof and as of the Closing Date and any Option
Closing Date (if such date is other than the Closing Date), did not include 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 in which they were made, not misleading, (ii) since the
effective date of the Registration Statement, no event has occurred which
should have been set forth in a supplement or amendment to the Registration
Statement, the General Disclosure Package or the Prospectus that has not been
so set forth therein, (iii) to the best of their knowledge after
reasonable investigation, as of the Closing Date and any Option Closing Date
(if such date is other than the Closing Date), the representations and
warranties of the Company in this Agreement are true and correct, and the
Company has complied in all material respects with all agreements and satisfied
in all material respects all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and any Option Closing Date
(if such date is other than the Closing Date), and (iv) there has not
been, subsequent to the date of the most recent audited financial statements
included or incorporated by reference in the General Disclosure Package, any
material adverse change in the financial position or results of operations of
the Company and its subsidiaries, taken as a whole, or any change or
development that, singly or in the aggregate, would involve a material adverse
change or a prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, business, assets or prospects
of the Company and its subsidiaries taken as a whole, except as set forth in
the Prospectus.
(j) Since the date of the latest audited financial statements
included in the General Disclosure Package or incorporated by reference in the
General Disclosure Package as of the date hereof, (i) neither the Company
nor any of its subsidiaries shall have sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in the General Disclosure
Package, and (ii) there shall not have been any change in the capital
stock (other than the issuance of Common Stock pursuant to the exercise of
stock options under the Companys stock plans, and the issuance of options and
restricted Common Stock under the Companys stock plans) or long-term debt of
the Company or any of its subsidiaries, or any change, or any development
involving a prospective change, in or affecting the business, general affairs,
management, financial position, stockholders equity or results of operations
of the Company and its subsidiaries, taken as a whole, otherwise than as set
forth in the General Disclosure Package, the effect of which, in any such case
described in clause (i) or (ii) of this paragraph (j), is, in
the judgment of the
27
Representative, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of
the Shares on the terms and in the manner contemplated in the General
Disclosure Package.
(k) No action shall have been taken and no law, statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would prevent the issuance or sale of the
Shares or materially and adversely affect or potentially materially and
adversely affect the business or operations of the Company or its subsidiaries,
taken as a whole; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have been
issued which would prevent the issuance or sale of the Shares or materially and
adversely affect or potentially materially and adversely affect the business or
operations of the Company or its subsidiaries, taken as a whole.
(l) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange, NASDAQ GM or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
materially limited, or minimum or maximum prices or maximum range for prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or market or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, (iii) the United States shall
have become engaged in hostilities, or the subject of an act of terrorism, or
there shall have been an outbreak of or escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency
or war by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the sale or
delivery of the Shares on the terms and in the manner contemplated in the
General Disclosure Package and the Prospectus.
(m) The Company shall have filed a Notification: Listing of
Additional Shares with the NASDAQ GM and shall have received no objection
thereto from the NASDAQ GM.
(n) The Representative shall have received the written
agreements, substantially in the form of Exhibit A hereto, of the
executive officers and directors of the Company listed in Schedule B to
this Agreement.
(o) Prior to the Closing Date and any Option Closing Date (if
such date is other than the Closing Date), the Company shall have furnished to
the Representative such further information, opinions, certificates (including
a Secretarys Certificate), letters or such other documents as the
Representative shall have reasonably requested
28
with respect to the good standing of the
Company, opinions, comfort letters, certificates, letters, documents, the due
authorization and issuance of the Firm Shares and the Additional Shares, if
any, to be sold on such Closing Date and Option Closing Date, if any, and other
matters related to the issuance of such Shares.
All opinions, letters,
evidence and certificates mentioned above or elsewhere in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to counsel for the Underwriters.
7. INDEMNIFICATION
AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Underwriter, each of its affiliates and each of its and their respective
directors, officers, members, employees, representatives and agents (including,
without limitation Lazard Frères & Co. LLC, (which will provide
services to LCM) and its affiliates, and each of its and their respective
directors, officers, members, employees, representatives and agents and each
person, if any, who controls Lazard Frères & Co. LLC within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act of or Section 20 of the
Exchange Act (collectively, the Underwriter
Indemnified Parties, and each a Underwriter
Indemnified Party) against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in respect
thereof), joint or several, to which such Underwriter Indemnified Party may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, expense, liability, action, investigation or proceeding arises
out of or is based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, any issuer information filed or required to
be filed pursuant to Rule 433(d) of the Rules and Regulations,
any Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, or (B) the omission
or alleged omission to state in any Preliminary Prospectus, any Issuer Free
Writing Prospectus, any issuer information filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any
Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, a material fact required
to be stated therein or necessary to make the statements therein (with respect
to any Preliminary Prospectus, any Issuer Free Writing Prospectus, any issuer
information or the Prospectus, in light of the circumstances under which they
were made) not misleading or (C) any breach of the representations and
warranties of the Company contained herein or the failure of the Company to
perform its obligations hereunder or pursuant to any law, and shall reimburse
the Underwriter Indemnified Party for any legal fees or other expenses reasonably
incurred by that Underwriter Indemnified Party in connection with
investigating, or preparing to defend, or defending against, or appearing as a
third party witness in respect of, or otherwise incurred in connection with,
any such loss, claim, damage, expense, liability, action, investigation or
proceeding, as such fees and expenses are incurred; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, expense or
liability arises out of or is based upon an
29
untrue statement or alleged untrue statement
in, or omission or alleged omission from any Preliminary Prospectus, any
Registration Statement or the Prospectus, or any such amendment or supplement
thereto, or any Issuer Free Writing Prospectus made in reliance upon and in
conformity with written information furnished to the Company by the
Representative by or on behalf of the Underwriters specifically for use
therein, which information the parties hereto agree is limited to the
Underwriters Information (as defined in Section 17). This indemnity agreement is not exclusive and
will be in addition to any liability which the Company might otherwise have and
shall not limit any rights or remedies which may otherwise be available at law
or in equity to each Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company and its directors, its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively, the Company
Indemnified Parties, and each a Company
Indemnified Party) against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in respect
thereof), joint or several, to which such Company Indemnified Party may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
expense, liability, action, investigation or proceeding arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the Prospectus,
or in any amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the Prospectus,
or in any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by the Representative by or
on behalf of any Underwriter specifically for use therein, which information
the parties hereto agree is limited to the Underwriters Information as defined
in Section 16, and shall reimburse the Company Indemnified Party
for any legal or other expenses reasonably incurred by such party in connection
with investigating or preparing to defend or defending against or appearing as
third party witness in connection with any such loss, claim, damage, liability,
action, investigation or proceeding, as such fees and expenses are
incurred. Notwithstanding the provisions
of this Section 7(b), in no event shall any indemnity by any
Underwriter under this Section 7(b) exceed the total discount
and commission received by such Underwriter in connection with the Offering.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 7, notify such indemnifying party in writing of the
commencement of that action; provided,
30
however, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the
extent it has been materially prejudiced by such failure; and, provided, further, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 7. If any such action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense of such action with counsel reasonably satisfactory to
the indemnified party (which counsel shall not, except with the written consent
of the indemnified party, be counsel to the indemnifying party). After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such action, except
as provided herein, the indemnifying party shall not be liable to the
indemnified party under Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
of such action other than reasonable costs of investigation; provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense of such action but the fees and expenses of such
counsel (other than reasonable costs of investigation) shall be at the expense
of such indemnified party unless (i) the employment thereof has been
specifically authorized in writing by the Company in the case of a claim for
indemnification under Section 7(a) or Section 2.5
or LCM in the case of a claim for indemnification under Section 7(b),
(ii) such indemnified party shall have been advised by its counsel that
there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party, or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party within a reasonable
period of time after notice of the commencement of the action or the
indemnifying party does not diligently defend the action after assumption of
the defense, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of (or, in the case of a failure to diligently defend the
action after assumption of the defense, to continue to defend) such action on
behalf of such indemnified party and the indemnifying party shall be
responsible for legal or other expenses subsequently incurred by such
indemnified party in connection with the defense of such action; provided, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
all such indemnified parties (in addition to any local counsel), which firm
shall be designated in writing by LCM if the indemnified parties under this Section 7
consist of any Underwriter Indemnified Party or by the Company if the
indemnified parties under this Section 7 consist of any Company
Indemnified Parties. Subject to this Section 7(c),
the amount payable by an indemnifying party under Section 7 shall
include, but not be limited to, (x) reasonable legal fees and expenses of
counsel to the indemnified party and any other expenses in investigating, or
preparing to defend or defending against, or appearing as a third party witness
in respect
31
of, or otherwise incurred in connection with,
any action, investigation, proceeding or claim, and (y) all amounts paid
in settlement of any of the foregoing.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of judgment
with respect to any pending or threatened action or any claim whatsoever, in
respect of which indemnification or contribution could be sought under this Section 7
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party in form and substance
reasonably satisfactory to such indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party. Subject to the
provisions of the following sentence, no indemnifying party shall be liable for
settlement of any pending or threatened action or any claim whatsoever that is
effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent, if its consent
has been unreasonably withheld or delayed or if there be a judgment for the
plaintiff in any such matter, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. In
addition, if at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for reasonable fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated herein effected without its written
consent if (i) such settlement is entered into more than forty-five (45)
days after receipt by such indemnifying party of the request for reimbursement,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least thirty (30) days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of
such settlement.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under Section 7(a) or
Section 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid, payable or
otherwise incurred by such indemnified party as a result of such loss, claim,
damage, expense or liability (or any action, investigation or proceeding in
respect thereof), as incurred, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Shares, or
(ii) if the allocation provided by clause (i) of this Section 7(d) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) of this Section 7(d) but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements, omissions, acts or failures to act
which resulted in such loss, claim, damage, expense or liability (or any
action, investigation or proceeding 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 with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this
32
Agreement (before deducting expenses)
received by the Company bear to the total underwriting discount and commission
received by the Underwriters in connection with the Offering, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other 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, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement,
omission, act or failure to act; provided
that the parties hereto agree that the written information furnished to the
Company by the Representative by or on behalf of any Underwriter for use in any
Preliminary Prospectus, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto, consists solely of the Underwriters
Information as defined in Section 17. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 7(d) were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage, expense, liability,
action, investigation or proceeding referred to above in this Section 7(d) shall
be deemed to include, for purposes of this Section 7(d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating, preparing to defend or defending against or appearing as a
third party witness in respect of, or otherwise incurred in connection with,
any such loss, claim, damage, expense, liability, action, investigation or
proceeding. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required
to contribute any amount in excess of the total discount and commission
received by such Underwriter in connection with the Offering, less the amount
of any damages which such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement, omission or alleged
omission, act or alleged act or failure to act or alleged failure to act. 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.
8. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representative, in its absolute discretion by notice
given to the Company prior to delivery of and payment for the Shares if, prior
to that time, any of the events described in Sections 6(j), 6(k),
or 6(l) have occurred or if the Underwriters shall decline to purchase
the Shares for any reason permitted under this Agreement.
9. REIMBURSEMENT
OF UNDERWRITERS EXPENSES.
Notwithstanding anything to the contrary in this Agreement, if (a) this
Agreement shall have been terminated pursuant to Section 8, (b) the
Company shall fail to tender the Shares for delivery to the Underwriters for
any reason not permitted under this Agreement, (c) the Underwriters shall
decline to purchase the Shares for any reason permitted under this Agreement or
(d) the sale of the Shares is not consummated because any condition to the
obligations of the Underwriters set forth herein is not satisfied or because of
the refusal, inability or failure on the part of the Company to perform any
agreement herein or to satisfy any condition or to comply with the provisions
hereof, then, in addition to the
33
payment of any amounts in accordance with Section 5, the
Company shall reimburse the Underwriters for the reasonable fees and expenses
of the Underwriters counsel and for such other accountable out-of-pocket
expenses as shall have been reasonably incurred by them in connection with this
Agreement and the proposed purchase of the Shares, and upon demand the Company
shall pay the full amount thereof to the Representative on behalf of the
Underwriters.
10. AUTHORITY OF
THE REPRESENTATIVE. RBC consents and agrees that LCM will act as
Representative of the Underwriters under this Agreement and with respect to the
sale of the Shares. Accordingly, RBC
authorizes LCM to manage the Offering and the sale of the Shares and to take
such action in connection therewith as LCM in its sole discretion deems
appropriate or desirable, consistent with the provisions of each Agreement
Among Underwriters previously entered into between LCM and RBC respectively,
taking into account that the Offering of the Shares will be in the form of a
firm commitment underwriting. RBC agrees
to comply with such Agreement Among Underwriters and that any action taken
under this Agreement by the Representative shall be binding upon all of the
Underwriters.
11. ABSENCE
OF FIDUCIARY RELATIONSHIP. The
Company acknowledges and agrees that:
(a) Each Underwriters responsibility to the Company is solely
contractual in nature, each Underwriter has been retained solely to act as an
Underwriter in connection with the Offering and no fiduciary, advisory or
agency relationship between the Company and such Underwriter has been created
in respect of any of the transactions contemplated by this Agreement,
irrespective of whether LCM, RBC or Lazard Frères & Co. LLC has
advised or is advising the Company on other matters;
(b) the price of the Shares set forth in this Agreement was
established by the Company following discussions and arms-length negotiations
with the Representative, and the Company is capable of evaluating and
understanding, and understands and accepts, the terms, risks and conditions of
the transactions contemplated by this Agreement;
(c) it has been advised that LCM, RBC and Lazard Frères &
Co. LLC and each of their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company
and that the Underwriters have no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) it waives, to the fullest extent permitted by law, any
claims it may have against the Underwriters for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees that the Underwriters shall have no
liability (whether direct or indirect) to the Company in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on
behalf of or in right of the Company, including stockholders, employees or creditors
of the Company.
34
12. SUCCESSORS;
PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon the several Underwriters, the Company, and their respective
successors and assigns. This Agreement
shall also inure to the benefit of Lazard Frères & Co. LLC, and each
of its successors and assigns, which shall be third party beneficiaries
hereof. Notwithstanding the foregoing,
the determination as to whether any condition in Section 6 hereof
shall have been satisfied, and the waiver of any condition in Section 6
hereof, may be made by the Representative in its sole discretion. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, other than the
persons mentioned in the preceding sentences, any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in
this Agreement shall also be for the benefit of the Underwriter Indemnified
Parties and the several indemnities of the Underwriters shall be for the
benefit of the Company Indemnified Parties.
It is understood that each Underwriters responsibility to the Company
is solely contractual in nature and the Underwriters do not owe the Company, or
any other party, any fiduciary duty as a result of this Agreement.
13. SURVIVAL
OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective indemnities, covenants,
agreements, representations, warranties and other statements of the Company and
the several Underwriters, as set forth in this Agreement or made by them
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter, the Company or any person controlling any of them and shall
survive delivery of and payment for the Shares.
Notwithstanding any termination of this Agreement, including without limitation
any termination pursuant to Section 8, the indemnity and
contribution and reimbursement agreements contained in Sections 7 and 9
and the covenants, representations, warranties set forth in this Agreement
shall not terminate and shall remain in full force and effect at all times.
14. NOTICES. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Representative, shall be delivered or sent by
mail, telex, facsimile transmission or email to Lazard Capital Markets LLC, 30
Rockefeller Plaza, New York, New York 10020, Attention: General Counsel, Fax:
212-830-3615; and
(b) if to the Company, shall be delivered or sent by mail,
telex, facsimile transmission or email to: Synta Pharmaceuticals Corp., 545
Hartwell Avenue, Lexington, MA 20421, Attention: Wendy E. Rieder, Esq.,
General Counsel, Fax: 781-240-1066; with a copy to Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., One Financial Center, Boston, MA 02111, Attention:
Jonathan L. Kravetz, Esq., Fax: (617) 542-2241;
provided,
however, that any notice to the Underwriters pursuant to Section 7
shall be delivered or sent by mail, telex or facsimile transmission to the
Representative at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto
35
by the Representative upon
request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof, except
that any such statement, request, notice or agreement delivered or sent by
email shall take effect at the time of confirmation of receipt thereof by the
recipient thereof.
15. DEFINITION
OF CERTAIN TERMS. For
purposes of this Agreement, (a) business
day means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) knowledge
means the knowledge of the directors and officers of the Company after
reasonable inquiry and (c) subsidiary
has the meaning set forth in Rule 405 of the Rules and Regulations.
16. GOVERNING
LAW, AGENT FOR SERVICE AND JURISDICTION. 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. No
legal proceeding may be commenced, prosecuted or continued in any court other
than the courts of the State of New York located in the City and County of New
York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such
matters, and the Company and the Underwriters each hereby consent to the
jurisdiction of such courts and personal service with respect thereto. The Company and the Underwriters each hereby
waive all right to trial by jury in any legal proceeding (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a
final judgment in any such legal proceeding brought in any such court shall be
conclusive and binding upon the Company and the Underwriters and may be
enforced in any other courts in the jurisdiction of which the Company is or may
be subject, by suit upon such judgment.
17. UNDERWRITERS
INFORMATION. The parties
hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriters
Information consists solely of the following information in the Prospectus: (i) the
last paragraph on the front cover page concerning the terms of the
offering; and (ii) the statements concerning the Underwriters contained in
the first paragraph, concerning the Underwriters and Lazard Frères &
Co. LLC in the seventh paragraph and concerning stabilization by the
Underwriters in the tenth paragraph, in each case under the heading Plan of
Distribution.
18. PARTIAL
UNENFORCEABILITY. The
invalidity or unenforceability of any section, paragraph, clause or provision
of this Agreement shall not affect the validity or enforceability of any other
section, paragraph, clause or provision hereof.
If any section, paragraph, clause or provision of this Agreement is for
any reason determined to be invalid or unenforceable, there shall be deemed to
be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
19. GENERAL. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another.
The section headings in this Agreement are for the convenience of the
parties only and will not affect the construction or interpretation of this
Agreement. This Agreement may be amended
or
36
modified, and the observance of any term of this Agreement may be
waived, only by a writing signed by the Company and the Representative.
20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument and such
signatures may be delivered by facsimile.
37
If the foregoing is in
accordance with your understanding of the agreement between the Company and the
Underwriters, kindly indicate your acceptance in the space provided for that
purpose below.
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Very
truly yours,
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SYNTA
PHARMACEUTICALS CORP.
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By:
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/s/
Keith Ehrlich
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Name:
Keith Ehrlich
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Title:
CFO
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Accepted
as of the date
first above written:
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LAZARD CAPITAL MARKETS LLC
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By:
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/s/
David G. McMillan, Jr.
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Name:
David G. McMillan, Jr.
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Title:
Managing Director
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RBC CAPITAL MARKETS CORPORATION
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By:
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/s/
Andrew E. Singer
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Name:
Andrew E. Singer
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Title:
Managing Director
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38
SCHEDULE
A
Pricing Information
Pricing Information
Provided Orally by the Underwriters
On January 8, 2010, the Underwriters
orally confirmed the sale of 5,555,556 shares of Common Stock at a public
offering price of $4.50 per share.
General
Use Free Writing Prospectuses
None
SCHEDULE B
List of officers and directors subject to Section 4
Safi R. Bahcall
Lan Bo Chen
Keith R. Gollust
Bruce Kovner
William S. Reardon
Robert N. Wilson
Michael P. Bailey
Jeremy G. Chadwick
Keith S. Ehrlich
Keizo Koya
Wendy E. Rieder
Vojo Vukovic
EXHIBIT A
Form of Lock Up Agreement
January ,
2010
LAZARD
CAPITAL MARKETS LLC
30 Rockefeller Plaza
New York, New York 10020
Re: Synta Pharmaceuticals Corp.
Offering of shares of Common Stock, par value $.0.0001
Dear
Sirs:
In order to induce Lazard
Capital Markets LLC (Lazard), to
enter in to a certain Underwriting Agreement with Synta Pharmaceuticals Corp.,
a Delaware corporation (the Company),
with respect to the public offering (the Offering)
of Companys Common Stock, par value $0.0001 per share (Common Stock), the undersigned hereby
agrees that for a period (the Lock-up Period)
of ninety (90) days following the date of the final prospectus filed by the
Company with the Securities and Exchange Commission in connection with the Offering,
the undersigned will not, without the prior written consent of Lazard, directly
or indirectly, (i) offer, sell, assign, transfer, pledge, contract to
sell, or otherwise dispose of, any shares of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock (including,
without limitation, shares of Common Stock or any such securities which may be
deemed to be beneficially owned by the undersigned in accordance with the rules and
regulations promulgated under the Securities Act of 1933, as the same may be
amended or supplemented from time to time (such shares or securities, the Beneficially Owned Shares)), (ii) enter
into any swap, hedge or other agreement or arrangement that transfers in whole
or in part, the economic risk of ownership of any Beneficially Owned Shares or (iii) engage
in any short selling of any Beneficially Owned Shares.
If (i) the Company
issues an earnings release or material news or a material event relating to the
Company occurs during the last seventeen (17) days of the Lock-up Period, or (ii) prior
to the expiration of the Lock-up Period, the Company announces that it will
release earnings results during the sixteen (16)-day period beginning on the
last day of the Lock-up Period, the restrictions imposed by this Agreement
shall continue to apply until the expiration of the eighteen (18)-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
Notwithstanding the
foregoing, the restrictions of this Agreement shall not apply to the transfer
of Beneficially Owned Shares (i) as bona fide gifts; (ii) to a trust
for the direct or indirect benefit of the undersigned or the immediate family
of the undersigned; (iii) by operation of law, by will or by intestate
succession; or (iv) as distributions to members, partners or stockholders
of the undersigned. For purposes of this
Agreement, the term immediate family shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin.
Anything contained herein to
the contrary notwithstanding, any person to whom shares of Common Stock,
securities convertible into or exercisable or exchangeable for Common Stock or
Beneficially Owned Shares are transferred from the undersigned shall be bound
by the terms of this Agreement.
In addition, notwithstanding
the foregoing, the restrictions set forth herein shall not apply to the
establishment of a trading plan designed to meet the requirements of the safe
harbor of Rule 10b5-1 (a Rule 10b5-1
Plan) under the Securities Exchange Act of 1934, as amended;
provided however, that the restrictions shall apply in full force to sales
pursuant to such Rule 10b5-1 Plan during the Lock-up Period.
In addition, the undersigned
hereby waives, from the date hereof until the expiration of the ninetieth (90)
day following the date of the Companys final prospectus, any and all rights,
if any, to request or demand registration pursuant to the Securities Act of
1933, as amended, of any shares of Common Stock or securities convertible into
or exercisable or exchangeable for Common Stock that are registered in the name
of the undersigned or that are Beneficially Owned Shares. In order to enable the aforesaid covenants to
be enforced, the undersigned hereby consents to the placing of legends and/or
stop transfer orders with the transfer agent of the Common Stock with respect
to any shares of Common Stock, securities convertible into or exercisable or
exchangeable for Common Stock or Beneficially Owned Shares.
It is understood that, if
the Company notifies Lazard that it does not intend to proceed with the
Offering or if the Offering is not consummated by February 1, 2010, this
Agreement shall terminate and the undersigned will be released from their obligations
hereunder.
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[Signatory]
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By:
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Name:
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Title:
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Exhibit 5.1
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One
Financial Center
Boston, MA 02111
617-542-6000
617-542-2241 fax
www.mintz.com
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January 8, 2010
Synta
Pharmaceuticals Corp.
45 Hartwell Avenue
Lexington, MA 02421
Ladies
and Gentlemen:
This
opinion is furnished to you in connection with a Prospectus Supplement, dated January 8,
2010 (the Prospectus Supplement), to a Registration Statement on Form S-3,
Registration No. 333-152833 (the Registration Statement), filed by Synta
Pharmaceuticals Corp., a Delaware corporation (the Company), with the
Securities and Exchange Commission (the Commission) under the Securities Act
of 1933, as amended (the Securities Act), with respect to the sale of an
aggregate of 6,388,889 shares (the Shares) of the Companys common stock,
$0.0001 par value per share (the Common Stock), including 833,333 shares
subject to an underwriters over-allotment option pursuant to an Underwriting
Agreement, dated January 8, 2010, by and among the Company and Lazard
Capital Markets LLC and RBC Capital Markets Corporation (the Underwriting
Agreement). The Underwriting Agreement will be filed as an exhibit to a
Current Report on Form 8-K and incorporated by reference into the
Registration Statement.
In
connection with this opinion, we have examined the Companys Restated
Certificate of Incorporation and Restated Bylaws, both as currently in effect;
the minutes of all pertinent meetings of stockholders and directors of the
Company relating to the Registration Statement, the Prospectus Supplement, the
Underwriting Agreement and the transactions contemplated thereby; such other
records of the corporate proceedings of the Company and certificates of the
Companys officers as we deemed relevant for the purposes of rendering the
opinions in this letter; the Registration Statement and the exhibits thereto
filed with the Commission; the Prospectus Supplement; and the Underwriting
Agreement.
In
our examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies and the authenticity of the
originals of such copies.
Based
upon the foregoing, and subject to the limitations set forth below, we are of
the opinion that the Shares, when issued by the Company and delivered by the
Company against payment therefor as contemplated by the Underwriting Agreement,
will be duly and validly issued, fully paid and non-assessable.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
BOSTON | WASHINGTON | NEW
YORK | STAMFORD | LOS ANGELES | PALO ALTO | SAN DIEGO | LONDON
Our
opinion is limited to the General Corporation Law of the State of Delaware
(including the applicable provisions of the Delaware Constitution and the
reported judicial decisions interpreting such laws) and the federal laws of the
United States of America, and we express no opinion with respect to the laws of
any other jurisdiction. No opinion is expressed herein with respect to the
qualification of the Shares under the securities or blue sky laws of any state
or any foreign jurisdiction. To the extent that any applicable document is
stated to be governed by the laws of another jurisdiction, we have assumed for
purposes of this opinion that the laws of such jurisdiction are identical to
the state laws of the State of Delaware.
We
have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by us to
reliable.
Please
note that we are opining only as to the matters expressly set forth herein, and
no opinion should be inferred as to any other matters. This opinion is based
upon currently existing statutes, rules, regulations and judicial decisions,
and we disclaim any obligation to advise you of any change in any of these
sources of law or subsequent legal or factual developments which might affect
any matters or opinions set forth herein.
We
hereby consent to the filing of this opinion with the Commission as an exhibit
to a Current Report on Form 8-K (and its incorporation by reference into
the Registration Statement) in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the
Securities Act and to the use of this Firms name therein and in the Prospectus
Supplement under the caption Legal Matters. In giving such consent, we do not
hereby 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 of
the Commission.
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Very
truly yours,
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/s/
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C.
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2
Exhibit
99.1
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Synta
Pharmaceuticals Corp.
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45
Hartwell Avenue
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Lexington,
MA 02421
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tel: 781 541 7125
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fax: 781 274 8228
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www.syntapharma.com
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Synta Pharmaceuticals Prices $25 Million Public
Offering of Common Stock
LEXINGTON, MA January 8, 2010 Synta
Pharmaceuticals Corp. (NASDAQ: SNTA), a biopharmaceutical company focused on
discovering, developing, and commercializing small molecule drugs to treat
severe medical conditions, today announced the pricing of an underwritten
public offering of 5,555,556 shares of its common stock at a price to the
public of $4.50 per share for gross proceeds of approximately $25 million.
After underwriting discounts and commissions and estimated offering expenses
payable by us, Synta expects to receive net proceeds of approximately $23.1
million. Synta has also granted the underwriters a thirty-day option to
purchase up to an additional 833,333 shares to cover over-allotments, if any,
which would result in additional net proceeds of approximately $3.5 million if
exercised in full. The offering is
expected to close on or about January 13, 2010, subject to satisfaction of
customary closing conditions.
Lazard
Capital Markets LLC is acting as sole book-running manager for the offering and
RBC Capital Markets Corporation is acting as co-manager.
The
net proceeds from the offering will be used to fund Syntas operations,
including, research and development, clinical trials, manufacturing,
intellectual property protection and enforcement, and working capital, and for
other general corporate purposes.
The
securities described above are being offered by Synta Pharmaceuticals pursuant
to a registration statement previously filed and declared effective by the
Securities and Exchange Commission. The securities may be offered only by means
of a prospectus, including a prospectus supplement, forming a part of the
effective registration statement. Copies
of the final prospectus supplement and accompanying base prospectus relating to
this offering may be obtained from Lazard Capital Markets LLC in connection
with this offering or to obtain any of the above-mentioned prospectuses at 30
Rockefeller Plaza, 60th Floor, New York, NY 10020 or via telephone at (800)
542-0970.
This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy any securities of Synta Pharmaceuticals Corp. nor shall there be
any sale of securities in any state or jurisdiction in which such an offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or jurisdiction.
About Synta Pharmaceuticals
Synta
Pharmaceuticals Corp. is a biopharmaceutical company focused on discovering,
developing, and commercializing small molecule drugs to extend and enhance the
lives of patients with severe medical conditions, including cancer and chronic
inflammatory diseases. Synta has a
unique chemical compound library, an integrated discovery engine, and a diverse
pipeline of clinical- and preclinical-stage drug candidates with distinct
mechanisms of action and
novel
chemical structures. All Synta drug
candidates were invented by Synta scientists using our compound library and
discovery capabilities.
Safe Harbor Statement
This
press release contains forward-looking statements, including, but not limited
to, statements relating to the anticipated closing of the offering.
Forward-looking statements are based on managements expectations and are
subject to certain factors, risks and uncertainties that may cause actual
results, outcome of events, timing and performance to differ materially from
those expressed or implied by such statements. These risks and uncertainties
include, but are not limited to, those detailed in the Companys public filings
with the U.S. Securities and Exchange Commission. The information contained in
this press release is believed to be current as of the date of original issue.
The Company does not intend to update any of the forward-looking statements
after the date of this document to conform these statements to actual results
or to changes in the Companys expectations, except as required by law.
###
Contacts:
Synta
Pharmaceuticals Corp.
Rob
Kloppenburg
(781)
541-7125