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): | June 11, 2015 |
TransEnterix, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 0-19437 | 11-2962080 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
635 Davis Drive, Suite 300, Morrisville, North Carolina | 27560 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 919-765-8400 |
Not Applicable
______________________________________________
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:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On June 11, 2015, TransEnterix, Inc. (the Company) entered into an underwriting agreement (the Underwriting Agreement) with Stifel Nicolaus & Company, Incorporated (Stifel) and RBC Capital Markets, LLC (RBC and, together with Stifel, the representatives of the several underwriters named therein (the Underwriters) for a firm commitment underwritten public offering of 16,666,667 shares (the Shares) of the Companys common stock, $0.001 par value per share (the Common Stock). All of the Shares are being sold by the Company. The offering price to the public is $3.00 per share, and the Underwriters have agreed to purchase the Shares from the Company pursuant to the Underwriting Agreement at a price of $3.00 per share. After underwriting discounts and commissions and estimated offering expenses, the Company expects to receive net proceeds from the offering of approximately $46.2 million. 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 2,500,000 shares of Common Stock at the same price per share as the Shares.
The Shares will be issued pursuant to a registration statement on Form S-3 of the Company filed with the Securities and Exchange Commission, which became effective on December 19, 2014 (File No. 333-199998). The closing of the offering is expected to take place on June 17, 2015, subject to the satisfaction of customary closing conditions.
The Underwriting Agreement contains customary representations, warranties, and covenants by the Company. It also provides for customary indemnification by each of the Company and the Underwriters for losses or damages arising out of or in connection with the sale of the Common Stock. In addition, pursuant to the terms of the Underwriting Agreement, each of the Companys executive officers and directors, and certain other stockholders of the Company have entered into agreements with the Underwriters not to sell, transfer or otherwise dispose of securities of the Company during the 90-day period following June 11, 2015.
Stifel and RBC were the joint book-running managers and Raymond James & Associates, Inc., BTIG, LLC and Ladenburg Thalmann acted co-managers for the offering.
The Underwriting Agreement is attached to this Current Report on Form 8-K as Exhibit 1.1 and is incorporated herein by reference. The foregoing description of the material terms of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the exhibit attached hereto.
Item 8.01
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Other Events. |
On June 11, 2015, the Company issued a press release announcing the pricing of the offering of shares of its Common Stock, a copy of which is attached hereto as Exhibit 99.1 and is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
1.1 | Underwriting Agreement by and among TransEnterix, Inc. and Stifel Nicolaus & Company, Incorporated and RBC Capital Markets, LLC dated June 11, 2015. |
5.1 |
Opinion of Ballard Spahr LLP.
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23.1 |
Consent of Ballard Spahr LLP (included in Exhibit 5.1).
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99.1 |
Press Release of TransEnterix, Inc., issued June 11, 2015.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
TransEnterix, Inc. | ||||
June 12, 2015 | By: |
/s/ Joseph P. Slattery
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Name: Joseph P. Slattery | ||||
Title: EVP and CFO |
Exhibit Index
Exhibit No.
Description
Underwriting Agreement by and among TransEnterix, Inc. and Stifel Nicolaus & Company, Incorporated and RBC Capital Markets, LLC dated June 11, 2015
Opinion of Ballard Spahr LLP
Press Release of TransEnterix, Inc., issued June 11, 2015
Exhibit 1.1
16,666,667 Shares
TransEnterix, Inc.
Common Stock
UNDERWRITING AGREEMENT
June 11, 2015
STIFEL, NICOLAUS & COMPANY, INCORPORATED
As representatives of the several Underwriters
named in Schedule I hereto
c/o Stifel, Nicolaus & Company, Incorporated
Ladies and Gentlemen:
TransEnterix, Inc., a Delaware corporation (the
Company
), proposes to issue and sell to the
several underwriters named in Schedule I hereto (the
Underwriters
), for whom Stifel, Nicolaus &
Company, Incorporated (
Stifel
) and RBC Capital Markets, LLC (
RBC
, and together with Stifel, the
Representatives
), are acting as representatives, an aggregate of 16,666,667 shares (the
Firm
Shares
) of the common stock, par value $0.001 per share, of the Company (
Common Stock
), all of
which are to be issued and sold by the Company. The Company also proposes to sell to the several
Underwriters, at the option of the Underwriters, up to an additional 2,500,000 shares of Common
Stock (the
Option Shares
). The Firm Shares and the Option Shares are hereinafter referred to
collectively as the
Shares
.
The Company confirms as follows its agreements with the Representatives and the several other
Underwriters.
1.
The Company represents and warrants to, and agrees with, each of the Underwriters that, as
of the date hereof and as of the Closing Date and each Option Closing Date, if any:
(a)
The Company has prepared and filed with the Securities and Exchange Commission (the
Commission
) a registration statement on Form S-3 (File No. 333-199998), and such amendments to
such registration statement as may have been required to the date of this Agreement, under the
Securities Act of 1933, as amended (the
Securities Act
), and the rules and regulations (the
Rules and Regulations
) of the Commission thereunder. Such registration statement, at any given
time, including any amendments thereto to such time, and the Rule 462(b) Registration Statement (as
defined below), if any, the exhibits and any schedules thereto at such time, the information
contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under
the Securities Act and deemed by virtue of Rule 430B under the Securities Act to be part of the
Initial Registration Statement at the time it was declared effective or such part of the Rule
462(b) Registration Statement, if any, the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act at such time and the documents and information
otherwise deemed to be a part thereof or included therein by Rule 430B under the Securities Act
(the
Rule 430B Information
) or otherwise pursuant to the Rules and Regulations at such time, is
herein called the
Registration Statement
. The Registration Statement at the time it originally
became effective is herein called the
Initial Registration Statement
.
The prospectus in the form in which it appeared in the Initial Registration Statement is
herein called the
Base Prospectus
. Each preliminary prospectus supplement to the Base Prospectus
(including the Base Prospectus as so supplemented) that described the Shares and the offering
thereof, that omitted the Rule 430B Information and that was used prior to the filing of the final
prospectus supplement referred to in the following sentence is herein called a
Preliminary
Prospectus
. Promptly after the execution and delivery of this Agreement, the Company will prepare
and file with the Commission a final prospectus supplement to the Base Prospectus relating to the
Shares and the offering thereof in accordance with the provisions of Rule 430B and Rule 424(b) of
the Rules and Regulations. Such final supplemental form of prospectus (including the Base
Prospectus as so supplemented), in the form filed with the Commission pursuant to Rule 424(b) under
the Securities Act is herein called the
Prospectus
. Any reference herein to the Base Prospectus,
any Preliminary Prospectus, the Pricing 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 under
the Securities Act as of the date of such prospectus.
For purposes of this Agreement, all references to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System (
EDGAR
). All references
in this Agreement to financial statements and schedules and other information that is described,
contained, included or stated in the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus (or other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other
information that is incorporated by reference in or otherwise deemed by the Rules and Regulations
to be a part of or included in the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, as the case may be. All references in this
Agreement to amendments or supplements to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to mean and
include the subsequent filing of any document under the Securities Exchange Act of 1934, as amended
(the
Exchange Act
), and which is deemed to be incorporated by reference therein or otherwise
deemed by the Rules and Regulations to be a part thereof. At the time of the filing of the Initial
Registration Statement with the Commission, the conditions for use of Form S-3, set forth in the
General Instructions thereto, were satisfied. The Initial Registration Statement was declared
effective by the Commission under the Securities Act on December 19, 2014. Other than a
registration statement, if any, increasing the size of the offering (a
Rule
462(b)
Registration
Statement
), filed pursuant to Rule 462(b) under the Securities Act, which became effective upon
filing, no other document with respect to the Initial Registration Statement has heretofore been
filed with the Commission. No stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any,
has been issued, no proceeding for that purpose has been initiated or threatened by the Commission.
Any request on the part of the Commission for additional information from the Company has been
satisfied in all material respects.
(b)
For the purposes of this Agreement, the
Applicable Time
is 6:00 a.m. (Eastern time) on
June 12, 2015. The Pricing Disclosure Package (as defined below) at the Applicable Time complied
in all material respects with the requirements of the Securities Act and the Rules and Regulations
and did not include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements or omissions from the Pricing Disclosure Package made in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriters expressly for
use therein, it being understood and agreed that the only such information furnished by the
Underwriters consists of the information described as such in Section 9(b).
(c)
Each part of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time that such part became effective (including each
deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the
Securities Act), at all other subsequent times until and including the Closing Date and the Option
Closing Date, as applicable, and at the Closing Date and the Option Closing Date, as applicable,
the Pricing Disclosure Package and the Prospectus, at the time of filing or the time of first use
within the meaning of the Rules and Regulations, at all subsequent times until and including the
Closing Date and the Option Closing Date, as applicable, and at the Closing Date and the Option
Closing Date, as applicable, complied and will comply in all material respects with the applicable
requirements and provisions of the Securities Act, the Rules and Regulations and the Exchange Act
and did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as amended or supplemented, as of its date, or the time of first use
within the meaning of the Rules and Regulations, at all subsequent times until and including the
Closing Date and the Option Closing Date, as applicable, and at the Closing Date and the Option
Closing Date, as applicable, did not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The representations and warranties
set forth in the two immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement or any post-effective amendment thereto, or the Prospectus made in
reliance upon and in conformity with information furnished in writing to the Company by the
Underwriters expressly for use therein; it being understood and agreed that the only such
information furnished by the Underwriters consists of the information described as such in Section
9(b).
(d)
The Statutory Prospectus at the Applicable Time (such prospectus, the
Pricing
Prospectus
) and the information set forth on
Schedule II
at the Applicable Time, all
considered together (collectively, the
Pricing Disclosure Package
), does not include and did not
include as of the Applicable Time any untrue statement of a material fact or omits or omitted as of
the Applicable Time to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the immediately preceding sentence do not apply to statements in or
omissions from any Statutory Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly for use therein; it being
understood and agreed that the only such information furnished by the Underwriter consists of the
information described as such in Section 9(b). As used in this paragraph and elsewhere in this
Agreement,
Statutory Prospectus
means the Base Prospectus, 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, including the final prospectus
supplement dated the date hereof. For purposes of this definition, Rule 430B Information contained
in a form of prospectus that is deemed retroactively to be a part of the Registration Statement
shall be considered to be included in the Statutory Prospectus as of the actual time that form of
prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act.
(e)
Each Preliminary Prospectus, Pricing Prospectus, and the Prospectus filed as part of the
Initial Registration Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with
the requirements of the Securities Act, the Rules and Regulations and the Exchange Act and each
Preliminary Prospectus, Pricing Prospectus, and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f)
The Company has filed a registration statement pursuant to the Exchange Act to register
the Common Stock, and such registration statement has been declared effective. At the time of
filing the Initial Registration Statement the Company was an ineligible issuer, as defined under
Rule 405 under the Securities Act, and as a result is unable to utilize any free writing prospectus
in connection with the Registration Statement.
(g)
The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and other) to
own, lease and operate its properties and conduct its business as described in the Pricing
Prospectus and to enter into and perform its obligations under this Agreement, and has been duly
qualified as a foreign corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure so to qualify or be in good standing
would not have or result in a material adverse change in the general affairs, business, prospects,
management, operations, assets, financial condition, stockholders equity or results of operation
of the Company and its subsidiaries, taken as a whole (a
Material Adverse Effect
).
(h)
Each subsidiary of the Company (each, a
Subsidiary
) has been duly incorporated (or
organized) and is validly existing as a corporation (or other organization) in good standing under
the laws of the jurisdiction of its incorporation (or organization), with power and authority to
own, lease and operate its properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the
transaction of business and is in good standing under the laws of each other jurisdiction in which
its owns or leases properties or conducts any business so as to require such qualification, except
where the failure so to qualify or be in good standing would not have a Material Adverse Effect.
All of the issued and outstanding capital stock (or other ownership interests) of each Subsidiary
has been duly and validly authorized and issued, is fully paid and non-assessable and is owned by
the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(i)
The Company has an authorized capitalization as set forth in the Pricing Prospectus, and
all of the issued and outstanding shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to the descriptions thereof
contained in the Pricing Prospectus, and none of the issued and outstanding shares of capital stock
of the Company are subject to any preemptive or similar rights.
(j)
The Shares have been duly and validly authorized and, when issued and delivered to and
paid for by the Underwriters in accordance with the terms of this Agreement, will be duly and
validly issued and fully paid and non-assessable and will conform to the descriptions thereof
contained in the Prospectus; and the issuance of such Shares is not subject to any preemptive or
similar rights.
(k)
This Agreement has been duly authorized, executed and delivered by the Company.
(l)
The issue and sale of the Shares, the execution of this Agreement by the Company and the
compliance by the Company with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any
of the property or assets of the Company or any of the Subsidiaries is subject, except where such
breach, violation or failure would not have a Material Adverse Effect, nor will such action result
in any violation of the provisions of the certificate or articles of incorporation or by-laws (or
other organization documents) of the Company or any of the Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except the registration under the Securities
Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(m)
BDO USA, LLP, who have certified certain financial statements of the Company and the
Subsidiaries are independent public accountants as required by the Securities Act and the Rules and
Regulations. The consolidated financial statements, together with related notes, included in the
Registration Statement and the Pricing Prospectus comply in all material respects with the
applicable requirements and provisions of the Securities Act, the Rules and Regulations and the
Exchange Act and present fairly the consolidated financial position, results of operations and
changes in financial position of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to which they apply.
Such statements and related notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved, except as disclosed
therein. The selected financial data and the summary financial data included in the Pricing
Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the financial statements included in the Registration Statement. The pro
forma financial statements of the Company and the Subsidiaries and the related notes thereto
included in the Registration Statement and the Pricing Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commissions rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and circumstances referred to
therein. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement fairly presents the information called for in all
material respects and has been prepared in accordance with the Commissions rules and guidelines
applicable thereto.
(n)
Neither the Company nor any Subsidiary has sustained since the date of the latest audited
financial statements included in the Pricing Prospectus any material 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 or contemplated in the Pricing Prospectus. Since the respective dates as of which
information is given in the Registration Statement and the Pricing Prospectus, (1) there has not
been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries,
(2) there has not been a Material Adverse Effect, nor any development which could reasonably be
expected to result in a Material Adverse Effect, (3) there have been no transactions entered into
by, and no obligations or liabilities, contingent or otherwise, incurred by the Company or any of
the Subsidiaries, whether or not in the ordinary course of business, which are material to the
Company and the Subsidiaries, considered as one enterprise or (4) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital stock,
in each case, otherwise than as set forth or contemplated in the Pricing Prospectus.
(o)
Neither the Company nor any of the Subsidiaries is (1) in violation of its certificate or
articles of incorporation or bylaws (or other organization documents) or (2) in violation of any
law, ordinance, administrative or governmental rule or regulation applicable to the Company or any
of the Subsidiaries, or (3) in violation of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, or (4) in default in the
performance of any obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except, in the case of clauses (2), (3) and (4), where any such
violation or default, individually or in the aggregate, would not have a Material Adverse Effect.
(p)
Each of the Company and each Subsidiary has good and marketable title to all real and
personal property owned by it, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Pricing Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be made as of the
date hereof of such property by the Company or any Subsidiary. Any real property and buildings
held under lease by the Company or any Subsidiary are held under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the use made and proposed
to be made as of the date hereof of such property and buildings by the Company or any Subsidiary.
(q)
Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries is a party or of which any
property of the Company or any of the Subsidiaries is the subject which, if determined adversely to
the Company or any Subsidiary, individually or in the aggregate, would have or may reasonably be
expected to have a Material Adverse Effect, or would prevent or impair the consummation of the
transactions contemplated by this Agreement, or which are required to be described in the
Registration Statement or the Pricing Prospectus. To the best of the Companys knowledge, no such
proceedings are threatened or contemplated by governmental authorities or others.
(r)
The Company and the Subsidiaries possess all permits, licenses, approvals, consents and
other authorizations (collectively,
Permits
) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the businesses now operated by them.
The Company and the Subsidiaries are in compliance with the terms and conditions of all such
Permits and all of the Permits are valid and in full force and effect, except, in each case, where
the failure to hold such Permits or to comply with such Permits or where the invalidity of such
Permits or the failure of such Permits to be in full force and effect, individually or in the
aggregate, would not have a Material Adverse Effect. Neither the Company nor any Subsidiary has
received any written notice of proceedings relating to the revocation or material modification of
any such Permits.
(s)
The Company and the Subsidiaries own or possess, or can acquire on reasonable terms, all
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service
marks and trade names, patents and patent rights (collectively
Intellectual Property
) material to
carrying on their businesses as described in the Pricing Prospectus, and neither the Company nor
any Subsidiary has received any correspondence relating to any Intellectual Property dispute or
notice of infringement of or conflict with asserted rights of others with respect to any
Intellectual Property which would render any Intellectual Property invalid or inadequate to protect
the interest of the Company and the Subsidiaries and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, would have or may reasonably be expected to have a Material Adverse Effect.
(t)
No material labor dispute with the employees of the Company or the Subsidiaries exists,
or, to the knowledge of the Company, is imminent. The Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any Subsidiarys principal suppliers,
manufacturers, customers or contractors, which, individually or in the aggregate, may reasonably be
expected to result in a Material Adverse Effect.
(u)
The Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; neither the Company nor any Subsidiary has been refused
any insurance coverage sought or applied for. The Company has no reason to believe that either it
or any Subsidiary will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.
(v)
The Company and each of its Subsidiaries have made and keep books, records and accounts,
which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the
assets of the Company and its Subsidiaries. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions are executed in
accordance with managements general or specific authorizations; (2) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (3) access to assets is permitted
only in accordance with managements general or specific authorization; (4) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (5) the interactive data in
eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement is in conformity with generally accepted accounting principles and is updated as
necessary to comply in all material respects with the requirements of the Securities Act, the Rules
and Regulations and guidelines applicable thereto and the Exchange Act and present fairly the
consolidated financial position, results of operations and changes in financial position of the
Company and the Subsidiaries on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply.
(w)
Since the date of the latest audited financial statements included in the Pricing
Prospectus, (a) neither the Company nor any Subsidiary has been advised of (1) any significant
deficiencies in the design or operation of internal controls that could adversely affect the
ability of the Company and each of its Subsidiaries to record, process, summarize and report
financial data, or any material weaknesses in internal controls and (2) any fraud, whether or not
material, that involves management or other employees who have a significant role in the internal
controls of the Company and each of its Subsidiaries, and (b) since that date, there has been no
change in the Companys or any Subsidiarys internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Companys or any such
Subsidiarys internal control over financial reporting.
(x)
The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15 (e) of the Exchange Act) that comply with the requirements of the Exchange Act, and such
disclosure controls and procedures are effective.
(y)
All United States federal income tax returns of the Company and the Subsidiaries required
by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which
are due and payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The Company and the
Subsidiaries have filed all other tax returns that are required to have been filed by them pursuant
to applicable foreign, state, local or other law, except insofar as the failure to file such
returns, individually or in the aggregate, would not result in a Material Adverse Effect, and have
paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary except for such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and reserves on the books of the
Company and the Subsidiaries in respect of any income and corporation tax liability for any years
not finally determined are adequate to meet any assessments or re-assessments for additional income
tax for any years not finally determined.
(z)
There are no statutes, regulations, documents or contracts of a character required to be
described in the Registration Statement or the Pricing Prospectus or to be filed as an exhibit to
the Registration Statement which are not described or filed as required.
(aa)
Neither the Company nor any of the Subsidiaries is in violation of any statute or any
rule, regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, production, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, environmental laws), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or claim,
individually or in the aggregate, may reasonably be expected to have a Material Adverse Effect, and
the Company is not aware of any pending investigation which reasonably might lead to such a claim.
(bb)
Each employee benefit plan within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (
ERISA
) and any similar employee benefit plan governed by
laws and regulations of jurisdictions outside of the United States, that is maintained,
administered or contributed to by the Company or any Subsidiary for employees or former employees
of the Company, any Subsidiary or their respective affiliates has been maintained in compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA, the Internal Revenue Code of 1986, as amended (the
Code
), and
all applicable foreign laws and regulations, except to the extent that failure to so comply,
individually or in the aggregate, would not have a Material Adverse Effect. No prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code has occurred
with respect to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption.
(cc)
Neither the Company nor any of its Subsidiaries, or, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of its Subsidiaries, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds, (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback
or other unlawful payment.
(dd)
There is and has been no failure on the part of the Company or any of the Companys
directors or officers, in their capacities as such, to comply in any material respect with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith, including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(ee)
Except as disclosed in the Registration Statement or in the Pricing Prospectus, there are
no persons with registration rights or other similar rights to have securities registered pursuant
to the Registration Statement or otherwise registered by the Company or any Subsidiary under the
Securities Act or on any public securities exchange.
(ff)
The Company is not and, after giving effect to the offering and sale of the Shares as
contemplated herein and the application of the net proceeds therefrom as described in the Pricing
Prospectus, will not be an investment company, as such term is defined in the Investment Company
Act of 1940, as amended (the
Investment Company Act
).
(gg)
Neither the Company nor any Subsidiary has distributed and, prior to the later to occur
of the Closing Date (as defined in Section 4 hereof) and completion of distribution of the Shares,
will distribute any offering materials in connection with the offering and sale of the Shares,
other than the Pricing Prospectus and the Prospectus. Neither the Company nor any Subsidiary has
taken or will take, directly or indirectly, any action designed to cause or result in, or which
constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company or any Subsidiary to facilitate the sale of the Shares.
(hh)
The statistical and market and industry-related data included in the Pricing Prospectus
and the Prospectus are based on or derived from sources which the Company reasonably believes to be
reliable and accurate or represent the Companys good faith estimates that are made on the basis of
data derived from such sources, and the Company has obtained the written consent to the use of such
data from sources to the extent required.
(ii)
Any certificate signed by any officer of the Company delivered to the Underwriters or to
counsel for the Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(jj)
To the Companys knowledge, there are no affiliations or associations between any member
of the Financial Industry Regulatory Authority, Inc. (
FINRA
) and any of the Companys officers,
directors or 5% or greater security holders, except as set forth in the Registration Statement.
(kk)
The Company has been authorized to list the Shares on the NYSE MKT, subject to compliance
with all applicable listing standards.
(ll)
There are no relationships or related-party transactions involving the Company or any
other person required to be described in the Prospectus which have not been described as required.
(mm)
Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, and except as would not, individually or in the aggregate, have or may reasonably be
expected to have a Material Adverse Effect: (i) neither the Company nor any of its Subsidiaries
has received any written notice of adverse filing, warning letter, untitled letter or other
correspondence or notice from the U.S. Food and Drug Administration or other relevant regulatory
authorities, or any other court or arbitrator or federal, state, local or foreign governmental or
regulatory authority, alleging or asserting material noncompliance with the Federal Food, Drug and
Cosmetic Act (21 U.S.C. § 301 et seq.) (the
FFDCA
), or similar state, federal or foreign law or
regulation; (ii) the Company and each Subsidiary is and has been in compliance in all material
respects with applicable health care laws, including without limitation, the FFDCA and the federal
Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. §
1320a-7a(a)(5)), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), all applicable
federal, state, local and all foreign civil and criminal laws relating to health care fraud and
abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud
criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996
(
HIPAA
) (42 U.S.C. Section 1320d et seq.), the exclusion laws, the statutes, regulations and
directives of applicable government funded or sponsored healthcare programs, and the regulations
promulgated pursuant to such statutes, the Standards for Privacy of Individually Identifiable
Health Information (the
Privacy Rule
), the Security Standards, and the Standards for Electronic
Transactions and Code Sets promulgated under HIPAA, the Health Information Technology for Economic
and Clinical Health Act (42 U.S.C. Section 17921 et seq.), and the regulations promulgated
thereunder and any state or non-U.S. counterpart thereof or other law or regulation the purpose of
which is to protect the privacy of individuals or prescribers, the Patient Protection and
Affordable Care Act of 2010, as amended by the Health Care and Education Affordability
Reconciliation Act of 2010, the regulations promulgated thereunder; the U.S. Controlled Substances
Act (21 U.S.C. Section 801 et seq.), quality, safety and accreditation requirements under
applicable federal, state, local or foreign laws or regulatory bodies; and all other local, state,
federal, national, supranational and foreign laws, relating to the regulation of the Company and
the Subsidiaries (collectively,
Health Care Laws
); (iii) the Company and each Subsidiary
possesses all licenses, certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Health Care Laws and/or to carry on its
businesses as presently conducted or proposed to be conducted (
Authorizations
) and such
Authorizations are valid and in full force and effect and neither the Company nor any Subsidiary is
in violation of any material term of any such Authorizations; (iv) neither the Company nor any
Subsidiary received written notice of any ongoing claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any U.S. or non-U.S. federal,
national, state, local or other governmental or regulatory authority, governmental or regulatory
agency or body, court, arbitrator or self-regulatory organization (each, a
Governmental
Authority
) or third party alleging that any product operation or activity is in violation of any
Health Care Laws or Authorizations or has any knowledge that any such Governmental Authority or
third party is considering any such claim, litigation, arbitration, action, suit, investigation or
proceeding; (v) neither the Company nor any Subsidiary has received written notice that any
Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or
revoke any Authorizations or has any knowledge that any such Governmental Authority is considering
such action; (vi) the Company and each Subsidiary has filed, obtained, maintained or submitted all
reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments as required by any Health Care Laws or Authorizations and that all such reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were complete, correct and not misleading on the date filed (or were corrected or supplemented by a
subsequent submission); and (vii) neither the Company nor any Subsidiary has, either voluntarily or
involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued, any
recall, market withdrawal or replacement, safety alert, post sale warning, dear doctor letter, or
other notice or action relating to the alleged lack of safety or efficacy of any product or any
alleged product defect or violation and, to the Companys knowledge, no third party has initiated
or conducted any such notice or action.
(nn)
To the knowledge of the Company, the research, studies and tests conducted by or on
behalf of the Company and each Subsidiary (collectively,
Studies
) have been and, if still
pending, are being conducted with reasonable care and in accordance with experimental protocols,
procedures and controls pursuant to all Health Care Laws and Authorizations. The descriptions of
the results of such Studies contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus are accurate and complete in all material respects and fairly present the data
derived from such Studies. Except to the extent disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, neither the Company nor any Subsidiary is aware of
any research, studies or tests, the results of which the Company believes reasonably call into
question the research, study or test results described or referred to in the Registration
Statement, the Pricing Disclosure Package and the Prospectus when viewed in the context in which
such results are described; the Company and the Subsidiaries have made all such filings and
obtained all such approvals as may be required by the Food and Drug Administration of the U.S.
Department of Health and Human Services or any committee thereof or from any other U.S. or foreign
government or medical device regulatory agency, or health care facility Institutional Review Board
(collectively, the
Regulatory Agencies
). Neither the Company nor any of the Subsidiaries has
received any correspondence from any Governmental Authority requiring the termination, suspension
or material modification of any research, study or test conducted by or on behalf of the Company or
any Subsidiary. To the knowledge of the Company, there have been no material adverse episodes or
complications resulting from any research, study or test conducted by or on behalf of the Company
or any Subsidiary. The Company and the Subsidiaries have each operated and currently are in
compliance in all material respects with all applicable rules, regulations and policies of the
Governmental Authorities.
(oo)
Neither the Company nor any Subsidiary has received written notice of any claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court
or arbitrator or governmental or regulatory authority or third party alleging that any product
operation or activity is in violation of any Health Care Laws nor, to the Companys knowledge, is
any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other
action threatened. The Company and the Subsidiaries have filed, maintained or submitted all
material reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments as required by any Health Care Laws, and all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were
complete and accurate on the date filed in all material respects (or were corrected or supplemented
by a subsequent submission). Neither the Company nor any Subsidiary is a party to any corporate
integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar
agreements with or imposed by any governmental or regulatory authority. Additionally, neither the
Company nor any Subsidiary nor any of their respective employees, officers or directors or, to the
knowledge of the Company, agents or subcontractors has been excluded, suspended or debarred from
participation in any U.S. federal health care program or human clinical research or, to the
knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other
similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(pp)
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any Subsidiary (i) has any material lending or other
relationship with any Underwriter or lending affiliate of any Underwriter and (ii) intends to use
any of the proceeds from the sale of the Shares to repay any outstanding debt owed to any affiliate
of the Underwriter.
(qq)
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any Subsidiary has sold, issued or distributed any shares of
capital stock during the six-month period preceding the date hereof, including any sales pursuant
to Rule 144A, Regulation D or Regulation S under the Securities Act, other than capital stock
issued pursuant to employee benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(rr)
The Company was not, as of the date of the Agreement and Plan of Merger, dated as of
August 13, 2013, as amended (the
Merger Agreement
), by and among the Company (formerly known as
SafeStitch Medical, Inc.), Tweety Acquisition Corp., a Delaware corporation and a direct and wholly
owned subsidiary of the Company, and TransEnterix Surgical, Inc. (formerly known as TransEnterix,
Inc.) (
TransEnterix Surgical
), and is not, as of the date hereof, in default or breach, and no
event has occurred that, with notice or lapse or time or both, would constitute such default or
breach, of the due performance or observance of any term, agreement, covenant or condition
contained in the Merger Agreement, in each case except to the extent that such default or breach
would not reasonably be expected to result in a Material Adverse Effect. TransEnterix Surgical was
not, as of the date of the Merger Agreement, and is not, as of the date hereof, in default or
breach, and no event has occurred that, with notice or lapse or time or both, would constitute such
default or breach, of the due performance or observance of any term, agreement, covenant or
condition contained in the Merger Agreement, in each case except to the extent that such default or
breach would not reasonably be expected to result in a Material Adverse Effect.
(ss)
The Merger, as defined in the Merger Agreement, was consummated in accordance with the
terms of the Merger Agreement and did not result in any violation of any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its subsidiaries or of
any court, regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of its or their properties,
except to the extent that such default, breach or violation would not reasonably be expected to
result in a Material Adverse Effect.
(tt)
The shares of capital stock issued by the Company in the Merger (i) have been duly
authorized, were validly issued and are fully paid and nonassessable, and (ii) were issued in
compliance with all applicable state and federal laws concerning the issuance of securities.
2.
Subject to the terms and conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price per share of $2.7975 (the
Purchase Price
), the
number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company hereunder by a fraction,
the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of
which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the
Company hereunder and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Option Shares as provided below, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the Purchase Price, the number of Option Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the number of Option Shares as to which such
election shall have been exercised by the fraction set forth in clause (a) above.
The Company hereby grants to the Underwriters the right to purchase at their election up to
2,500,000 Option Shares, at the Purchase Price. The Underwriters may exercise their option to
acquire Option Shares in whole or in part from time to time only by written notice from the
Representatives to the Company, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Option Shares to be purchased and the date on
which such Option Shares are to be delivered, as determined by the Representatives but in no event
earlier than the Closing Date or, unless the Representatives and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of such notice.
3.
It is understood that the several Underwriters propose to offer the Firm Shares for sale to
the public upon the terms and conditions set forth in the Prospectus.
4.
The Company will deliver the Firm Shares to the Representatives through the facilities of
the Depository Trust Company (
DTC
) for the accounts of the Underwriters, against payment of the
purchase price therefor in Federal (same day) funds by official bank check or checks or wire
transfer drawn to the order of the Company at the office of Stifel, 787 7th Avenue, 11th Floor, New
York, NY 10019, at 10:00 A.M., New York time, on June 17, 2015, or at such other time not later
than seven full business days thereafter as the Representatives and the Company determine, such
time being herein referred to as the
Closing Date
. For purposes of Rule 15c6-1 under the
Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the Firm Shares. The
certificates for the Firm Shares so to be delivered will be in such denominations and registered in
such names as the Representatives request and will be made available for checking and packaging at
the above office of Stifel at least 24 hours prior to the Closing Date.
Each time for the delivery of and payment for the Option Shares, being herein referred to as
the
Option Closing Date
, which may be the Closing Date, shall be determined by the
Representatives as provided above. The Company will deliver the Option Shares being purchased on
each Option Closing Date to the Representatives through the facilities of DTC for the accounts of
the Underwriters, against payment of the purchase price therefor in Federal (same day) funds by
official bank check or checks or wire transfer drawn to the order of the Company at the above
office of Stifel, at 10:00 A.M., New York time, on the applicable Option Closing Date. The
certificates for the Option Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representatives request and will be made
available for checking and packaging at the above office of Stifel at least 24 hours prior to the
Option Closing Date.
5.
The Company covenants and agrees with each of the Underwriters as follows:
(a)
The Company, subject to Section 5(b), will comply with the requirements of Rule 430A under
the Securities Act, and will notify the Representatives immediately, and confirm the notice in
writing: (i) when any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended prospectus shall have been filed, to
furnish the Representatives with copies thereof, and to file promptly all material required to be
filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act; (ii) of
the receipt of any comments from the Commission; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Prospectus or for
additional information; and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of any
Preliminary Prospectus, or of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes. The Company will prepare the Prospectus in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the
Commissions close of business on the second New York Business Day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b)
The Company will give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b) under the
Securities Act), or any amendment, supplement or revision to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c)
The Company will use its best efforts to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Shares, provided that nothing in this
Section 5(c) shall require the Company to qualify as a foreign corporation in any jurisdiction in
which it is not already so qualified, or to file a general consent to service of process in any
jurisdiction.
(d)
The Company has furnished or will deliver to the Representatives, without charge, a signed
copy of the Initial Registration Statement as originally filed, any Rule 462(b) Registration
Statement and of each amendment to each (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also,
upon your request, deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto (without exhibits) for
each of the Underwriters. The copies of the Registration Statement and each amendment thereto
furnished to the Representatives will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e)
The Company has delivered to each Underwriter, without charge, as many written and
electronic copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, prior to 5:00 P.M. on the business
day next succeeding the date of this Agreement and from time to time thereafter during the period
when the Prospectus is required to be delivered in connection with sales of the Shares under the
Securities Act or the Exchange Act or in lieu thereof, the notice referred to in Rule 173(a) under
the Securities Act, such number of written and electronic copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(f)
The Company will comply with the Securities Act, the Rules and Regulations and the
Exchange Act so as to permit the completion of the distribution of the Shares as contemplated in
this Agreement and in the Prospectus. If at any time when, in the opinion of counsel for the
Underwriters, a prospectus is required to be delivered in connection with sales of the Shares under
the Securities Act or the Exchange Act (or in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act), any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus or to file under the Exchange Act any
document which would be deemed to be incorporated by reference in the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it (or in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act) is delivered to a purchaser, or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the Securities Act, the Rules and
Regulations or the Exchange Act, the Company will promptly prepare and file with the Commission,
subject to Section 5(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus or any document which would be
deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, and the Company will furnish to the Underwriters such number of written and
electronic copies of such amendment or supplement as the Underwriters may reasonably request. The
Company will provide the Representatives with notice of the occurrence of any event during the
period specified above that may give rise to the need to amend or supplement the Registration
Statement or the Prospectus as provided in the preceding sentence promptly after the occurrence of
such event.
(g)
The Company will make generally available (within the meaning of Section 11(a) of the
Securities Act) to its security holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of its fiscal quarter in which the first anniversary date of the
effective date of the Registration Statement occurs, an earnings statement (in form complying with
the provisions of Rule 158 under the Securities Act) covering a period of at least twelve
consecutive months beginning after the effective date of the Registration Statement.
(h)
The Company will use the net proceeds received by it from the sale of the Shares in the
manner specified in the Pricing Prospectus under the heading Use of Proceeds.
(i)
The Company will use its best efforts to effect and maintain the listing of the Common
Stock (including the Shares) on the NYSE MKT.
(j)
During a period of 90 days from the date of the Prospectus, the Company will not, without
the prior written consent of Representatives, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise, other than (1) the Shares to be sold hereunder, (2) the issuance of options to acquire
shares of Common Stock granted or other equity awards pursuant to the Companys benefit plans
existing on the date hereof or otherwise awarded as of the date hereof that are referred to in the
Prospectus, as such plans may be amended or (3) the issuance of shares of Common Stock upon the
exercise of any such options or equity awards. Notwithstanding the foregoing, if (A) during the
last 17 days of the 90-day restricted period the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (B) prior to the expiration of the
90-day restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day period, the restrictions imposed by this
agreement shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material event. The
Company shall promptly notify the Representatives of any earnings release, news or event that may
give rise to an extension of the initial 90-day restricted period.
(k)
Prior to September 3, 2015, the Company will not consent to the release of shares of
capital stock of the Company subject to any lock-up agreement entered into in connection with the
Merger Agreement prior to the expiration of the lock-up period applicable to any such shares in
accordance with the terms of such lock-up agreement.
(l)
The Company, during the period when the Prospectus is required to be delivered in
connection with sales of the Shares under the Securities Act or the Exchange Act (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act), will file all documents
required to be filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the rules and regulations of the Commission thereunder.
(m)
The Company will file with the Commission such information on Form 10-Q or Form 10-K as
may be required pursuant to Rule 463 under the Securities Act.
(n)
During a period of five years from the effective date of the Registration Statement, the
Company will furnish to you or make available pursuant to EDGAR copies of all reports or other
communications (financial or other) furnished to shareholders generally, and to deliver to you (i)
as soon as they are available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are
consolidated in reports furnished to its shareholders generally or to the Commission).
(o)
If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company will
file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by
10:00 P.M., Washington, D.C. time, on the date of this Agreement, and at the time of filing either
to pay to the Commission the filing fee for the Rule 462(b) Registration Statement or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities
Act.
(p)
If so requested by the Representatives, the Company shall cause to be prepared and
delivered, at its expense, within one business day from the effective date of this Agreement, to
the Representatives an electronic Prospectus to be used by the Underwriters in connection with
the offering and sale of the Shares. As used herein, the term electronic Prospectus means a form
of the most recent Preliminary Prospectus or the Prospectus, and any amendment or supplement
thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic
format, satisfactory to the Representatives, that may be transmitted electronically by the
Representatives and the other Underwriters to offerees and purchasers of the Shares, (ii) it shall
disclose the same information as such paper Preliminary Prospectus or the Prospectus, as the case
may be; and (iii) it shall be in or convertible into a paper format or an electronic format,
satisfactory to the Representatives, that will allow investors to store and have continuously ready
access to such Preliminary Prospectus or the Prospectus at any future time, without charge to
investors (other than any fee charged for subscription to the Internet generally). The Company
hereby confirms that, if so requested by the Representatives, it has included or will include in
the Prospectus filed with the Commission an undertaking that, upon receipt of a request by an
investor or his or her representative, the Company shall transmit or cause to be transmitted
promptly, without charge, a paper copy of such paper Preliminary Prospectus or the Prospectus to
such investor or representative.
6.
The Company represents and agrees that it has not made or will not make any offer relating
to the Shares that would constitute a free writing prospectus as defined in Rule 405 under the
Securities Act. Each Underwriter represents and agrees that it has not made and will not make any
offer relating to the Shares that would constitute a free writing prospectus.
7.
The Company covenants and agrees with the several Underwriters that, whether or not the
transactions contemplated by this Agreement are consummated, the Company will pay or cause to be
paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the fees, disbursements and expenses of the Companys counsel, accountants and other advisors;
(ii) filing fees and all other expenses in connection with the preparation, printing and filing of
the Registration Statement, each Preliminary Prospectus, and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (iii) the cost of printing or producing this Agreement, closing documents (including any
compilations thereof) and such other documents as may be required in connection with the offering,
purchase, sale and delivery of the Shares; (iv) all expenses in connection with the qualification
of the Shares for offering and sale under securities laws of the jurisdictions requested by the
Underwriters as provided in Section 5(c), including without limitation filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey and the survey of the securities laws of
any foreign jurisdiction in which the Underwriters reasonably request the Company to offer the
Shares; (v) all fees and expenses in connection with listing the Common Stock (including the
Shares) on the NYSE MKT; (vi) the filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, securing any required review by
FINRA of the terms of the sale of the Shares; (vii) all fees and expenses in connection with the
preparation, issuance and delivery of the certificates representing the Shares to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Shares to the Underwriters; (viii) the cost and charges of any transfer
agent or registrar; (ix) the transportation and other expenses incurred by the Company in
connection with presentations to prospective purchasers of Shares; and (x) all other costs and
expenses incident to the performance of the Companys obligations hereunder which are not otherwise
specifically provided for in this Section,
provided, however
, that in no event will the Company be
obligated to reimburse the fees and disbursements of counsel for the Underwriters pursuant to
Sections 7(iv) and (vi), in the aggregate, in excess of $50,000.
8.
The several obligations of the Underwriters hereunder to purchase the Shares on the Closing
Date or the Option Closing Date, as the case may be, are subject to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a)
The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Securities Act within the applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 5(a). If the Company has elected to rely upon Rule
462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof or the Prospectus or any part
thereof shall have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission or any state securities commission. All requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction.
(b)
The representations and warranties of the Company contained herein are true and correct on
and as of the Closing Date or the Option Closing Date, as the case may be, as if made on and as of
the Closing Date or the Option Closing Date, as the case may be, and the Company shall have
complied with all agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date or the Option Closing Date, as the case may be.
(c)
Subsequent to the execution and delivery of this Agreement and prior to the Closing Date
or the Option Closing Date, as the case may be, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any downgrading, (ii) any intended or potential downgrading
or (iii) any review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company or any Subsidiary by any nationally
recognized statistical rating organization, as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(d)
(i) Neither the Company nor any Subsidiary shall have sustained since the date of the
latest audited financial statements included in the Pricing Prospectus any material 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 or contemplated in the Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Registration Statement and the Prospectus,
(1) there shall not have been any change in the capital stock or long-term debt of the Company or
any Subsidiary or (2) there shall not have been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, shareholders equity or results of operations of the
Company and the Subsidiaries, considered as one enterprise, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering or the delivery of
the Shares being delivered at the Closing Date or Option Closing Date, as the case may be, on the
terms and in the manner contemplated in the Pricing Prospectus.
(e)
The Representatives shall have received on and as of the Closing Date or the Option
Closing Date, as the case may be, a certificate of two executive officers of the Company, at least
one of whom has specific knowledge about the Companys and the Subsidiaries financial matters,
satisfactory to the Representatives, to the effect (1) set forth in Sections 8(b) (with respect to
the respective representations, warranties, agreements and conditions of the Company) and 8(c), (2)
that none of the situations set forth in clause (i) or (ii) of Section 8(d) shall have occurred and
(3) that no stop order suspending the effectiveness of the Registration Statement has been issued
and to the knowledge of the Company, no proceedings for that purpose have been instituted or are
pending or contemplated by the Commission;
(f)
On the Closing Date or Option Closing Date, as the case may be, (i) Ballard Spahr LLP,
counsel for the Company, shall have furnished to the Representatives their favorable written
opinion and negative assurances letter, dated the Closing Date or the Option Closing Date, as the
case may be, in form and substance satisfactory to counsel for the Underwriters, to the effect set
forth in
Exhibit A
hereto and to such further effect as counsel for the Underwriters may reasonably
request, (ii) Kathleen Frost, Esq., counsel for the Company, shall have furnished to the
Representatives her favorable written opinion, dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance satisfactory to counsel for the Underwriters, to the
effect set forth in
Exhibit B-1
hereto and to such further effect as counsel for the Underwriters
may reasonably request, and Hogan Lovells, counsel for the Company, shall have furnished to the
Representatives their favorable written opinion, dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance satisfactory to counsel for the Underwriters, to the
effect set forth in
Exhibit B-2
hereto and to such further effect as counsel for the Underwriters
may reasonably request.
(g)
On the effective date of the Registration Statement and, if applicable, the effective date
of the most recently filed post-effective amendment to the Registration Statement, BDO USA, LLP
shall have furnished to the Representatives a letter, dated the date of delivery thereof, in form
and substance satisfactory to the Representatives, containing statements and information of the
type customarily included in accountants comfort letters to underwriters with respect to the
financial statements and certain financial information contained in the Registration Statement and
the Prospectus.
(h)
On the Closing Date or the Option Closing Date, as the case may be, the Representatives
shall have received from BDO USA, LLP a letter, dated the Closing Date or the Option Closing Date,
as the case may be, to the effect that they reaffirm the statements made in the letter or letters
furnished pursuant to Section 8(g), except that the specified date referred to shall be a date not
more than three business days prior to the Closing Date or the Option Closing Date, as the case may
be.
(i)
On the Closing Date or the Option Closing Date, as the case may be, Cooley LLP, counsel
for the Underwriters, shall have furnished to the Representatives their favorable opinion dated the
Closing Date or the Option Closing Date, as the case may be, with respect to the due authorization
and valid issuance of the Shares, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass upon such matters.
(j)
The Shares to be delivered on the Closing Date or the Option Closing Date, as the case may
be, shall have been authorized for listing on the NYSE MKT, subject to official notice of issuance.
(k)
FINRA shall have confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and conditions.
(l)
The Representatives shall have received lock-up agreements, each substantially in the
form of
Exhibit C
hereto, from the, officers and directors and certain shareholders of the Company
and such agreements shall be in full force and effect on the Closing Date or the Option Closing
Date, as the case may be.
(m)
On or prior to the Closing Date or the Option Closing Date, as the case may be, the
Company shall have furnished to the Representatives such further information, certificates and
documents as the Representatives shall reasonably request.
(n)
On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or the NYSE MKT; (ii) a suspension or material limitation in trading in the Companys securities on
the New York Stock Exchange or the NYSE MKT; (iii) a general moratorium on commercial banking
activities declared by any of Federal, Maryland or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at the Closing Date or the Option Closing
Date, as the case may be, on the terms and in the manner contemplated in the Prospectus;
If any condition specified in this Section 8 shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated, subject to the provisions of Section
12, by the Representatives by notice to the Company at any time at or prior to the Closing Date or
the Option Closing Date, as the case may be, and such termination shall be without liability of any
party to any other party, except as provided in Section 12.
9.
(a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including without limitation, reasonable attorneys fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained in the Initial
Registration Statement, as originally filed or any amendment thereof, the Registration Statement,
or any post-effective amendment thereof, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or in any supplement thereto or amendment thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided
,
however
, that the Company will
not be liable in any such case to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in the Initial Registration Statement, as originally filed or any
amendment thereof, the Registration Statement, or any post-effective amendment thereof, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, in reliance upon and in strict conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives expressly for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
is the information described as such in Section 9(b) below.
(b)
Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the
Company, each of the directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, and each other person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred (including without
limitation, reasonable attorneys fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Initial Registration Statement, as originally filed or any amendment
thereof, the Registration Statement, or any post-effective amendment thereof, or any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in strict conformity
with written information furnished to the Company by or on behalf of such Underwriter through the
Representatives expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the cover page
concerning the terms of the offering by the Underwriters, the concession and reallowance figures
appearing in the fifth paragraph under the caption Underwriting, the information with respect to
short sales, stabilizing transactions and penalty bids contained in the fourteenth, fifteenth and
sixteenth paragraphs under the caption Underwriting, and the information relating to sales to
accounts over which the Underwriters have discretionary authority contained in the eighteenth
paragraph under the caption Underwriting.
(c)
Promptly after receipt by an indemnified party under Section 9(a) or 9(b) of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such Section, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it may have under this
Section 9). In case any such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and jointly with any other indemnifying party similarly notified, to the
extent it may elect by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnified party). Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized in writing by one
of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees and expenses shall
be borne by the indemnifying parties. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general allegations or
circumstances, which counsel, in the event of indemnified parties under Section 9(a), shall be
selected by the Representatives. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the 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.
(d)
If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any losses,
liabilities, claims, damages or expenses (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, liabilities, claims, damages or expenses (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses
(or actions 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 from
the offering of the Shares shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 9(d).
The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to above in this Section 9(d) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters obligations in this Section 9(d) to contribute are
several in proportion to their respective underwriting obligations and not joint.
(e)
The obligations of the parties to this Agreement contained in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
10.
If any Underwriter or Underwriters default in its or their obligations to purchase Shares
hereunder on the Closing Date or the Option Closing Date and the aggregate number of Shares that
such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total number of Shares that the Underwriters are obligated to purchase on the Closing Date or
the Option Closing Date, as the case may be, the Representatives may make arrangements satisfactory
to the Company for the purchase of such Shares by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date or the Option Closing Date, as the case
may be, the non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Shares that such defaulting Underwriters agreed
but failed to purchase on the Closing Date or the Option Closing Date, as the case may be. If any
Underwriter or Underwriters so default and the aggregate number of Shares with respect to which
such default or defaults occur exceeds 10% of the total number of Shares that the Underwriters are
obligated to purchase on the Closing Date or the Option Closing Date, as the case may be, and
arrangements satisfactory to the Representatives and the Company for the purchase of such Shares by
other persons are not made within 36 hours after such default, this Agreement will terminate,
subject to the provisions of Section 12, without liability on the part of any non-defaulting
Underwriter, except as provided in Section 12. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or the Company shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used in this Agreement, the term Underwriter includes any person substituted
for an Underwriter under this Section 10.
11.
Notwithstanding anything herein contained, this Agreement (or the obligations of the
several Underwriters with respect to any Option Shares which have yet to be purchased) may be
terminated, subject to the provisions of Section 12, in the absolute discretion of the
Representatives, by notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date or the Option Closing Date, as the case may be, (a) trading
generally on the NYSE MKT or the New York Stock Exchange or on the NASDAQ Global Select Market or
the NASDAQ Global Market shall have been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, FINRA or any other governmental or
regulatory authority, (b) trading of any securities of or guaranteed by the Company or any
Subsidiary shall have been suspended on any exchange or in any over-the-counter market, (c) a
general moratorium on commercial banking activities in New York State or Maryland shall have been
declared by Federal, New York State or Maryland State authorities or a new restriction materially
adversely affecting the distribution of the Firm Shares or the Option Shares, as the case may be,
shall have become effective, or (d) there has occurred any material adverse change in the financial
markets in the United States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives, impracticable to
market the Shares to be delivered on the Closing Date or the Option Closing Date, as the case may
be, or to enforce contracts for the sale of the Shares.
If this Agreement is terminated pursuant to this Section 11, such termination will be without
liability of any party to any other party except as provided in Section 12 hereof.
12.
The respective indemnities, agreements, representations, warranties and other statements
of the Company or their respective officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any
of its representatives, officers or directors or any controlling person, and will survive delivery
of and payment for the Shares. If this Agreement is terminated pursuant to Section 8, 10 or 11 or
if for any reason the purchase of any of the Shares by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 7, the respective obligations of the Company and the Underwriters pursuant to Section 9 and
the provisions of Sections 12, 13 and 16 shall remain in effect and, if any Shares have been
purchased hereunder the representations and warranties in Section 1 and all obligations under
Section 5, Section 6 and Section 7 shall also remain in effect. If this Agreement shall be
terminated by the Underwriters, or any of them, under Section 8 or otherwise because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company shall be unable to perform its obligations
under this Agreement or any condition of the Underwriters obligations cannot be fulfilled, the
Company agrees to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees
and expenses of its counsel) reasonably incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder.
13.
This Agreement shall inure to the benefit of and be binding upon the Company and the
Underwriters, the officers and directors of the Company referred to herein, any controlling persons
referred to herein and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
herein contained. No purchaser of Shares from any Underwriter shall be deemed to be a successor or
assign by reason merely of such purchase.
14.
All notices and other communications hereunder shall be in writing and shall be deemed to
have been duly given upon receipt thereof by the recipient if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given to the Representatives, c/o
Stifel, Nicolaus & Company, Incorporated, 787 7th Avenue, 11th Floor, New York, New York 10019;
(fax no.: (212) 682-1766); Attention: Adam Kohn, and RBC Capital Markets, LLC, Three World
Financial Center, 8
th
Floor, 200 Vesey Street, New York, New York 10281-8098, Attention:
Michael Goldberg, Syndicate Director, Fax: (212) 428-6260. Notices to the Company shall be given
to it at TransEnterix, Inc., 635 Davis Drive, Suite 300, Morrisville, NC 27560 (fax no.: (919)
765-8459; Attention: Joseph P. Slattery, with copies (which shall not constitute notice) to: (i)
Ballard Spahr LLP, 1735 Market Street, Philadelphia, PA 19103 (fax no.: (215) 864-8999); Attention:
Mary J. Mullany, and (ii) TransEnterix, Inc., 635 Davis Drive, Suite 300, Morrisville, NC 27560
(fax no.: (919) 765-8459); Attention: Joshua Weingard, Esq.
15.
This Agreement may be signed in counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
16.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO SUCH STATES PRINCIPLES OF CONFLICTS OF LAWS.
17.
The parties hereby submit to the jurisdiction of and venue in the federal courts located
in the City of New York, New York in connection with any dispute related to this Agreement, any
transaction contemplated hereby, or any other matter contemplated hereby.
18.
The Company acknowledges and agrees that: (i) the purchase and sale of the Shares
pursuant to this Agreement, including the determination of the public offering price of the Shares
and any related discounts and commissions, is an arms-length commercial transaction between the
Company on the one hand, and the several Underwriters, on the other; (ii) in connection therewith
and with the process leading to such transaction, each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Company or their respective stockholders, creditors,
employees or any other party; (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement; and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
19.
The Company acknowledges that the Underwriters research analysts and research departments
are required to be independent from their respective investment banking divisions and are subject
to certain regulations and internal policies, and that such Underwriters research analysts may
hold views and make statements or investment recommendations and/or publish research reports with
respect to the Company and/or the offering that differ from the views of their respective
investment banking divisions. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
conflict of interest that may arise from the fact that the views expressed by their independent
research analysts and research departments may be different from or inconsistent with the views or
advice communicated to the Company by such Underwriters investment banking divisions. The Company
acknowledges that each of the Underwriters is a full service securities firm and as such from time
to time, subject to applicable securities laws, may effect transaction for its own account or the
account of its customers and hold long or short positions in debt or equity securities of the
companies that may be the subject of the transactions contemplated by this Agreement.
20.
Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, tax structure is limited to
any facts that may be relevant to that treatment.
21.
This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
22.
The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
[Signature page follows]
1
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument will become a binding
agreement between the Company and the Underwriters.
Very truly yours,
TRANSENTERIX, INC.
By:
/s/ Joseph P Slattery
Accepted as of the date hereof:
STIFEL, NICOLAUS & COMPANY, INCORPORATED
For themselves and as Representatives of the
By: Stifel, Nicolaus & Company, Incorporated
By: RBC Capital Markets, LLC
By:
/s/ Jennifer Caruso
SCHEDULE I
SCHEDULE II
None.
EXHIBIT A
EXHIBIT B-1
EXHIBIT B-2
EXHIBIT C
TransEnterix, Inc.
Stifel, Nicolaus & Company, Incorporated
c/o Stifel, Nicolaus & Company, Incorporated
787 7
th
Avenue, 11
th
Floor
New York, New York 10019
Ladies and Gentlemen:
The undersigned refers to the proposed Underwriting Agreement (the
Underwriting Agreement
)
among TransEnterix, Inc., a Delaware corporation (the
Company
), and the several underwriters
named therein (the
Underwriters
). As an inducement to the Underwriters to execute the
Underwriting Agreement in connection with the proposed public offering of shares of the Companys
common stock, par value $0.001 per share (
Common Stock
), pursuant to a Registration Statement on
Form S-3, the undersigned hereby agrees that from the public offering date set forth on the final
prospectus used to sell the Common Stock (the
Public Offering Date
) and until 90 days after the
Public Offering Date, pursuant to the Underwriting Agreement (such 90-day period being referred to
herein as the
Lock-Up Period
), to which you are or expect to become parties, the undersigned will
not (and will cause any spouse or immediate family member of the spouse or the undersigned living
in the undersigneds household, any partnership, corporation or other entity within the
undersigneds control, and any trustee of any trust that holds Common Stock or other securities of
the Company (together with the Common Stock, the
Restricted Securities
) for the benefit of the
undersigned or such spouse or family member not to) offer, sell, contract to sell (including any
short sale), pledge, hypothecate, establish an open put equivalent position within the meaning of
Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, grant any option, right or
warrant for the sale of, purchase any option or contract to sell, sell any option or contract to
purchase, or otherwise encumber, dispose of or transfer, or grant any rights with respect to,
directly or indirectly, any of the Restricted Securities or securities convertible into or
exchangeable or exercisable for any of the Restricted Securities, enter into a transaction which
would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of the Restricted Securities,
whether any such aforementioned transaction is to be settled by delivery of the Restricted
Securities or such other securities, in cash or otherwise, or publicly disclose the intention to
make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap,
hedge or other arrangement, without, in each case, the prior written consent of Stifel, Nicolaus &
Company, Incorporated and RBC Capital Markets, LLC (together with Stifel, Nicolaus & Company,
Incorporated, the
Representatives
), which consent may be withheld in the Representatives sole
discretion; provided, however, that if (i) during the last 17 days of the initial Lock-Up Period,
the Company releases earnings results or material news or a material event relating to the Company
occurs, or (ii) prior to the expiration of the initial Lock-Up Period, the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of the earnings results or the
occurrence of the material news or material event, as applicable, unless the Representatives waive,
in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
Lock-Up Period pursuant to the previous paragraph will be delivered by the Representatives to the
Company (in accordance with the Underwriting Agreement) and that any such notice properly delivered
will be deemed to have been given to, and received by, the undersigned. The undersigned further
agrees that, prior to engaging in any transaction or taking any other action that is subject to the
terms of this Agreement during the period from the date of this Agreement to and including the
34
th
day following the expiration of the initial Lock-Up Period, it will give notice
thereof to the Representatives and will not consummate such transaction or take any such action
unless it has received written confirmation from the Representatives that the Lock-Up Period (as
may have been extended pursuant to the previous paragraph) has expired.
If the undersigned is an officer or director of the Company, (i) the undersigned agrees that
the foregoing restrictions shall be equally applicable to any issuer-directed or friends and
family shares of Common Stock that the undersigned may purchase in the proposed public offering;
(ii) the Representatives agree that, at least three (3) business days before the effective date of
any release or waiver of the foregoing restrictions in connection with a transfer of any Restricted
Securities, the Representatives will notify the Company of the impending release or waiver, and
(iii) the Company has agreed in the Underwriting Agreement to announce the impending release or
waiver by press release through a major news service at least two business days before the
effective date of the release or waiver. Any release or waiver granted by the Representatives
hereunder to any such officer or director shall only be effective two business days after the
publication date of such press release. The provisions of this paragraph will not apply if (a) the
release or waiver is effected solely to permit a transfer not for consideration and (b) the
transferee has agreed in writing to be bound by the same terms described in this Agreement to the
extent and for the duration that such terms remain in effect at the time of the transfer.
The foregoing restrictions shall not apply to (i)
bona fide
gifts by the undersigned, (ii) the
surrender or forfeiture of Restricted Securities to the Company to satisfy tax withholding
obligations upon exercise or vesting of stock options or equity awards, (iii) transfers of
Restricted Securities or any security convertible into or exercisable for Restricted Securities to
an immediate family member or a trust for the benefit of the undersigned or an immediate family
member or to any corporation, partnership, limited liability company or other entity all of the
beneficial ownership interests of which are held exclusively by the undersigned and/or one or more
family members of the undersigned in a transaction not involving a disposition for value, (iv)
transfers of Restricted Securities or any security convertible into or exercisable for Restricted
Securities upon death by will or intestate succession, (v) the exercise of any option, warrant or
other right to acquire Restricted Securities, the settlement of any stock-settled stock
appreciation rights, restricted stock or restricted stock units or the conversion of any
convertible security into Restricted Securities, (vi) securities transferred to one or more
affiliates of the undersigned and distributions of securities to partners, members or stockholders
of the undersigned, (vii) transactions relating to securities acquired in open market transactions
after the Public Offering Date, (viii) the entry into any trading plan established pursuant to Rule
10b5-1 under the Exchange Act, provided that such plan does not provide for any sales or other
dispositions of Restricted Securities during the Lock-Up Period and no public announcement or
filing under the Exchange Act is made by or on behalf of the undersigned or the Company regarding
the establishment of such plan, and (ix) any Restricted Securities purchased by the undersigned in
the offering contemplated by the Underwriting Agreement; provided that, in the case of a transfer
or distribution pursuant to the preceding clauses (i), (iii), (iv), (v) or (vi), (A) each resulting
transferee or recipient, as the case may be, of the Restricted Securities executes and delivers to
the Representatives an agreement satisfactory to the Representatives certifying that such
transferee is bound by the terms of this Agreement and has been in compliance with the terms hereof
since the date first above written as if it had been an original party hereto and to the extent
any interest in the Restricted Securities is retained by the undersigned (or such spouse or family
member), such securities shall remain subject to the restrictions contained in this Agreement and
(B) no public filing under Section 13 or Section 16(a) of the Exchange Act (other than a Form 5),
or other public announcement, reporting a reduction in beneficial ownership of shares of Common
Stock, shall be required or shall be voluntarily made during the Lock-Up Period in connection with
such transfer or distribution.
In addition, the undersigned agrees that, during the period commencing on the date hereof and
ending 90 days after the Public Offering Date, without the prior written consent of the
Representatives (which consent may be withheld each Representatives sole discretion): (i) the
undersigned will not request, make any demand for or exercise any right with respect to, the
registration of any Restricted Security or any security convertible into or exercisable or
exchangeable for any Restricted Security and (ii) the undersigned waives any and all notice
requirements and rights with respect to the registration of any such security pursuant to any
agreement, understanding or otherwise to which the undersigned is a party.
Any Restricted Security received upon exercise of options granted to the undersigned will also
be subject to this Agreement.
In furtherance of the foregoing, the Company and their respective transfer agents and
registrars are hereby authorized to (i) decline to make any transfer of Restricted Securities if
such transfer would constitute a violation or breach of this Agreement and (ii) place legends and
stop transfer instructions on any such Restricted Securities owned or beneficially owned by the
undersigned.
This Agreement is irrevocable and shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without regard to choice of
law rules. This Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before (i) such time as the Representatives, on the one hand, or the
Company, on the other hand, advises the other in writing, prior to the execution of the
Underwriting Agreement that it has determined not to proceed with the Public Offering, (ii)
termination of the Underwriting Agreement or (iii) on August 31, 2015, in the event the
Underwriting Agreement has not been executed by that date.
Very truly yours,
Printed Name:
Date:
2
787 7th Avenue, 11th Floor
New York, NY 10019
Name: Joseph P. Slattery
Title: CFO
RBC CAPITAL MARKETS, LLC
other Underwriters named in Schedule I hereto
By:
/s/ Keith Lister
Title: Managing Director
Title: Managing Director
Number of Firm Shares
to be Purchased
Underwriters
6,666,667
4,450,000
2,216,668
1,666,666
1,666,666
16,666,667
OPINION OF COUNSEL TO THE COMPANY
OPINION OF IP COUNSEL TO THE COMPANY
OPINION OF REGULATORY COUNSEL TO THE COMPANY
LOCK-UP AGREEMENT
635 Davis Drive, Suite 300
Morrisville, NC 27560
RBC Capital Markets, LLC
Ballard Spahr LLP Letterhead
Exhibit 5.1
June 11, 2015
TransEnterix, Inc.
635 Davis Drive, Suite 300 Morrisville, NC 27560 |
Re: RE: TransEnterix, Inc. |
Ladies and Gentlemen:
We have acted as counsel to TransEnterix, Inc., a Delaware corporation (the Company) and are rendering this opinion in connection with a prospectus supplement, dated June 11, 2015 (the Prospectus Supplement), relating to Registration Statement on Form S-3 (File No. 333-199998) (the Registration Statement), filed by the Company with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act), with respect to 16,666,667 shares of common stock, par value $0.001, of the Company (the Shares).
The Shares are to be sold by the Company pursuant to an Underwriting Agreement dated June 11, 2015 (the Agreement) entered into by and among the Company and Stifel Nicolaus & Company, Incorporated and RBC Capital Markets, LLC, as representatives of the several underwriters named therein (collectively, the Underwriters), which has been filed as Exhibit 1.1 to the Companys Current Report on Form 8-K to which this opinion is attached as Exhibit 5.1.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement and all exhibits thereto, (ii) the Prospectus Supplement, (iii) the Agreement, (iv) the Amended and Restated Certificate of Incorporation of the Company together with all amendments thereto, (v) the Amended and Restated Bylaws of the Company and (vi) certain resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company. We have also examined such corporate records and other agreements, documents and instruments, and such certificates or comparable documents of public officials and officers and representatives of the Company, and have made such inquiries of such officers and representatives and have considered such matters of law as we have deemed appropriate as the basis for the opinions hereinafter set forth.
In delivering this opinion, 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 originals of all documents submitted to us as certified, photostatic or conformed copies, the authenticity of originals of all such latter documents, and the accuracy and completeness of all records, information and statements submitted to us by officers and representatives of the Company. In making our examination of documents executed by parties other than the Company, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization of all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof with respect to such parties.
Based upon and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares to be issued and sold by the Company have been duly authorized for issuance and, when issued and paid for in accordance with the terms and conditions of the Agreement, will be validly issued, fully paid and non-assessable.
We express no opinion as to the laws of any jurisdiction other than the present federal laws of the United States of America and the present laws of the State of Delaware.
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 thereunder.
Sincerely yours,
/s/ Ballard Spahr LLP
Exhibit 99.1
FOR IMMEDIATE RELEASE
TransEnterix, Inc. Prices Public Offering of Common Stock
RESEARCH TRIANGLE PARK, N.C. June 11, 2015 TransEnterix, Inc. (NYSE MKT: TRXC), a medical device company that is pioneering the use of robotics and flexible instruments to improve minimally invasive surgery, today announced the pricing of its underwritten public offering of 16,666,667 shares of its common stock at a public offering price of $3.00 per share for total gross proceeds of $50.0 million. TransEnterix has also granted the underwriters a 30-day option to purchase up to an additional 2,500,000 million shares of common stock.
Net proceeds from the sale of the shares, after deducting the underwriters discounts and other estimated offering expenses payable by TransEnterix, are expected to be approximately $46.2 million. TransEnterix plans to use the net proceeds from this offering for research and development, sales, marketing, and commercialization related to its SurgiBot System, working capital and other general corporate purposes. The offering is subject to customary closing conditions and is expected to close on Wednesday, June 17, 2015.
Stifel and RBC Capital Markets are acting as the joint book-running managers and Raymond James, BTIG and Ladenburg Thalmann are acting as co-managers for the offering.
This offering was made pursuant to a preliminary prospectus supplement and accompanying prospectus dated December 19, 2014, filed as part of TransEnterixs effective $100 million shelf registration statement. Copies of the preliminary prospectus supplement and accompanying prospectus relating to these securities may be obtained by contacting Stifel, Nicolaus & Company, Incorporated, Attention: Syndicate, One Montgomery Street, Suite 3700, San Francisco, California 94104, by calling (415) 364-2720 or by emailing Syndprospectus@stifel.com, or RBC Capital Markets, LLC, 200 Vesey Street, 8th Floor, New York, NY 10281-8098, Attention: Equity Syndicate, by calling (877) 822-4089 or by emailing equityprospectus@rbccm.com .
This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities nor will there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
About TransEnterix
TransEnterix is a medical device company that is pioneering the use of robotics and flexible
instruments to improve minimally invasive surgery by addressing the economic and clinical
challenges associated with current laparoscopic and robotic options. The company is focused on the
development and commercialization of the SurgiBot System, a robotically enhanced laparoscopic
surgical platform that allows the surgeon to be patient-side within the sterile field.
Forward Looking Statements
This press release includes statements relating to the proposed offering of our common stock. These statements and other statements regarding our future plans and goals constitute forward looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, and are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. Such statements are subject to risks and uncertainties that are often difficult to predict, are beyond our control, and which may cause results to differ materially from expectations and include our expectations regarding the proposed offering and use of proceeds. For a discussion of the most significant risks and uncertainties associated with TransEnterixs business, please review our filings with the Securities and Exchange Commission (SEC), including our Annual Report on Form 10-K for the year ended December 31, 2014 and subsequent filings with the SEC. You are cautioned not to place undue reliance on these forward looking statements, which are based on our expectations as of the date of this press release and speak only as of the date of this press release. We undertake no obligation to publicly update or revise any forward looking statement, whether as a result of new information, future events or otherwise.
# # #
Media Contact:
Mohan Nathan, 919-917-6559
mnathan@transenterix.com
Investor Contact:
Westwicke Partners
Mark Klausner, 443-213-0501
transenterix@westwicke.com